Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author. Nomotechnia. English Finch, Henry, Sir, d. 1625. This text is an enriched version of the TCP digital transcription A00741 of text S122048 in the English Short Title Catalog (STC 10871). Textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. The text has been tokenized and linguistically annotated with MorphAdorner. The annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). Textual changes aim at restoring the text the author or stationer meant to publish. This text has not been fully proofread Approx. 840 KB of XML-encoded text transcribed from 271 1-bit group-IV TIFF page images. EarlyPrint Project Evanston,IL, Notre Dame, IN, St. Louis, MO 2018 A00741 STC 10871 ESTC S122048 99857201 99857201 22891 2240877847

This keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the Early English Books Online Text Creation Partnership. Searching, reading, printing, or downloading EEBO-TCP texts is reserved for the authorized users of these project partner institutions. Permission must be granted for subsequent distribution, in print or electronically, of this EEBO-TCP Phase II text, in whole or in part.

 Early English books online text creation partnership. (EEBO-TCP ; phase 2, no. A00741) Transcribed from: (Early English Books Online ; image set 22891) Images scanned from microfilm: (Early English books, 1475-1640 ; 797:1) Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author. Nomotechnia. English Finch, Henry, Sir, d. 1625. I. L., 17th cent. [8], 496, 499-506, [16] p. Printed [by Adam Islip] for the Societie of Stationers, London : 1627. A translation of "Nomotechnia", but a different version of the text first published in Law French in 1613. Editor's introduction signed: I.L. Printer's name from STC. Includes index. The first leaf and the last leaf are blank. Reproduction of the original in the British Library. eng Law -- England -- Early works to 1800. eebo Lavv, or, a discourse thereof, in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by Finch, Henry, Sir, 1627 529 143311 1297 0 0 0 0 0 90.5 D The rate of 90.5 defects per 10,000 words puts this text in the D category of texts with between 35 and 100 defects per 10,000 words. 2013-10 Assigned for keying and markup 2013-11 Keyed and coded from ProQuest page images 2014-01 Sampled and proofread 2014-01 Text and markup reviewed and edited 2014-03 Batch review (QC) and XML conversion

LAW , OR , A DISCOVRSE THEREOF , IN foure Bookes .

Written in French by Sir HENRIE FINCH Knight , his Maiesties Serieant at LAW . And done into English by the same Author .

CICERO .

Leges nobis charae esse debent , Non propter literas , sed propter earum rerum quibus descriptum est vtilitatem , & eorum qui scripserunt sapientiam .

LONDON , Printed for the Societie of Stationers . 1627.

To the READER .

THis Booke , being formerly published in the proper and genuine Language , had , as it well deserued , good acceptation ; the Author and the Work mutually adding to each others Esteeme . And herein the Matter was no lesse profitable , than the Manner vsefull and ingenious : so that this onely of al the Bookes of Law ( as concerning the Method ) is without President . Herein you may finde a triple relation distinguished by the various Print . In the first , you haue the Maximes and positiue grounds of the Law , with whatsoeuer is added or explaned by Statutes concerning the same ; Which taken apart will afford a continued sensible discourse . In the second is contained the proofes and examples of those Maximes . And because that precious Flower of the Crowne , the Kings Prerogatiue , may not bee valued in the hands of a common person , such cases as concerne the King are seuered from the rest .

To impart good is to improoue it , which was one cause of the translation of this Book : yet is it not thereby made so facile as to descend to vulgar capacities ; witnesse the verie phrase , the termes of Art , excluding all hope of accrue to Lay-conceited opinions . Neither speaketh it at aduenture , but as the Author taught , and no otherwise ; whose fame will affirme , and none wil denie , but that he best knew how to fit and adorne his owne worke .

Now remaineth onely to ex●enuat the faults , either those material in the copie , or literall ●n the Print , the first a iudicious Reader is able to supplie , a litle ●abour will correct the rest : He ●hat is curteous wil remit both . To plot and to perfect at once ●s to bee more than man . Such was the paine to compose that ●he child wasted its owne pa●ent , therein neuerthelesse be●ng vnhappie preuenting the ●lessing of Perfection , and be●omming an Abrotiue ; But be ●ou the Guardian , so much It inuites , the Author merits more . His proposed end was to enrich others by this expression of his Loue , couer therfore the faults occasioned by an Error of Loue , and redeeme Him that for your sake is imbarque● in the common Censure of al● Men.

J. L.
THE FIRST BOOKE of Law .
CHAP. 1.

Of the Law of Nature .

LAw is an Art of wel ordering a Ciuile societie . In Greeke it is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a distribuendo , because it giues and distributes right to euerie one . In Latine it hath its name Lex , not a ligando , as some would haue it , although Law indeed be vinculum ciuitatis , nor a legendo , which is , to reade ; though I find that to please Bracton most ; but as hee that best could tell deriues it , a legendo , Bract. lib. 1. ca. 3. Cicol . 1. de Legib. which is to choose , because of the choice & ●xquisite wisedome that is in it . Nam vt il● ( saith Tully speaking of the Grecians ) ●quitatis , sic nos delectus vim in Lege ponimus , & proprium vtrumque legis est . The Hebrues ●all it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ( thorah ) from the roote 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ( jarah ) which is to teach : because it is the doctrine of truth , as Plato saith in his ninth booke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Leges ad hominum doctrinam ponuntur . So that Law carrieth with it , and hath ( as it were ) inclosed in the name and nature of it , those three lawes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and golden chaine of all good learning , Lex veriattis , Lex Iusticiae , Lex sapientiae . And therefore is not onely 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , scientia , but Plato li 4 de Reipub 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , Scientificissima . Whereupon Plato telleth vs , Nomen menti consentaneum , ( that is , to God , whom the Philosophers cal 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or mens , which is Truth , Wisdome , and Iustice it selfe ) possidet diuina nobis & admirabilis lex . So that the name it selfe doth shew the Authour from whence it came : and as he saith , Qui tanti talem genuere parentes .

Lawes are Natiue or Possitiue . Tully in his Oration pro Milone , takes vs out this Lesson : Est enim haec non scripta sed nata lex , quam non didiscimus , accepimus , legimus , verum è natura ipsa arripuimus hausimus , expressimus ; ad quam non docti sed nati , non instituti sed imbuti sumus . In his first booke de Legibus , he doth againe repeate it . Constituendi vero iuris ab illa summa Lege capiamus exor dium , quae seculis omnibus ante nata est quam scripta Lex vlla : Where this Natiue Law hee calleth summam legem , as that from which all other lawes doe streame :

Natiue , are those Lawes which are in vs of themselues , and therefore vnchangeable and perpetuall .

These are two fold , like those two great ●hts which God hath set in the firma●ent of our heart , Nature and Reason , ●or being proper to a man , as hee is a man and reasonable creature , they may be diuided as reason it selfe is diuided . They that ●●ue trauailed most in the grounds of Nature , distinguish that excellent facultie of Reason ( which of all earthly creatures man onely hath ) into two other faculties , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the mind , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the reasoning part : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 they call that facultie of the soule that offreth vnto vs things cleare & lighltsome of themselues , without any further reasoning or discourse . By 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 they meane that facultie of the soule , that by discourse of reason doth deduce and draw one thing from another . From hence the masters and professors of the art of reason , make indgement ( which is the flower of all reason , and in effect nothing els but ratio coniuncta , reason set together ) to be Noeticum or Dianoeticum We by their example may distinguish those which wee call Natiue Lawes , and are the foundation of all other lawes into Primitiue , which is that they call Noeticum , we , the law of Nature , or secundarie rules of reason , which is their Dianoeticum , with vs the Law of reason . And these verie names of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which is all one reason and the discourse of reason , both Plato and Tully speaking of the lawes doe giue them .

The law of Nature is that soueraigne reason fixed in mans nature , which ministreth L●x natura est ratio summa incita in hominis naturaquae iube● ea quae facienda sunt , ꝓbibetque contraria . common principles of good and euill . In effect nothing else but those 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Communes noticiae , which the Philosophers speake of ; That men must liue peaceably together : That we are not to do vnto another that which we would not haue done vnto vs : That Iustice is to be done to all men , and such like . Of this Tully speaketh 2. de legibus . Principem illam legem & Cic. lib. 2. de Leg. vltimam mentem esse dicebant . Where hee likewise calleth it the high & supream law of all . And in another place , Natura iuri● ab hominis repetenda natura , because the light herof as the light of the Sun shineth most clearely , and in the eyes of all men .

CHAP. 2.

Of the Law of Reason .

THE law of Reason is that whic● deduceth principles by the discourse of sound reason . Wherof T● saith , Ratio cum est in mente bomini● confirmata & confecta , lex est : An● Cic. lib. 1. de Leg. againe , Lex est radius diuini luminis , and r●cta ratio summi Iouis . Plato , by way of Poeticall Plat. l. 1. de Legib. fiction doth imagine that there were a● the first , two contrarie humors that raigne● in man , and ( as it were ) two fooles of hi● councell that did rule him , Pleasure an● ●●ine . Each had two other affections to ●●tend them , Hope of good things to come , and Feare of future euils , whereby mens minds were haled and pulled hither and thither , and diuersly distracted . Then to gouern both , God set in man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the reasoning or discoursing part , to teach what is good or bad in either ; which hee calleth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the golden and sacred rule of reason . Wee may terme it , that vncorrupt reason which Adam had at the first in full perfection : But through Adams fall ( that brought sinne into the world , and the fruit of sinne , Blindnesse and corruption ) that excellent image of Reason is now so wonderfully defaced euen in the best and wisest , that the light of this , as the light of the Moone , shineth more obscurely : But yet shineth , so that from it all the other Lawes receiue their Light .

And hereupon are grounded more or lesse cleerely , diuers rules of reason , that euerie where goe for vndoubted Oracles , which ( confirmed by iudgement , learning , and much experience , and rightly and wel applied ) are so many starres and shining lights , to direct our course in the arguing of any case : yea such is their singular and incomparable vse , that , as Lords paramount , they rule and ouerrule the grounds themselues . And rather than any of these ( rightly vnderstood ) should faile , the verie maximes and principles of the positiue law will yeeld , as to a higher and more perfect Law .

CHAP. 3.

Of rules taken from other learnings .

THE rules of reason are of two sorts ; some taken from forreigne learnings , both diuine & humane : the rest proper to Law it selfe .

Of the first sort are the principles , and sound conclusions from forreign learnings ; Out of the best and very bowels of Diuinitie , Grammer , Logicke ; also from Philosophie natural , Politicall , Oeconomicks , Morrall , though in our report● and yeere-bookes they come not vnder the same tearmes , yet the things which ther● you finde are the same ; for the sparkes o● all Sciences in the world are raked vp in the ashes of the Law : and well doth one say , Non ex Praetoris edictis , neque a 12 tab●lis , Cic. l. 1. de legibus . sed penitus ex intima philosophia hauriend● iuris disciplina est . Hee that will take th● whole body of the Law before him , an● goe really and iudicially to worke , mus● not lay the foundation of his building i● Estates , Tenures , the gift of Writs , an● such like , but at those currant and soun● principles which our bookes are full of .

First from Diuinitie , the doctrine● ●●ligion , the head and master-peece of all the rest , whereof S. Augustine saith truly , Aug. lib. 9. de Civitat . dei . O●nium legum est inanis censura , nisi diuinae legis imaginem gerat . From hence we haue these two rules .

To such lawes of the Church as haue 34 H. 6. 40. P●●sot . A●●els leys que eux de St. eglise ont en auncient escripture , covient pur nous a don●● credence : car ce● est common ley , sur que touts manner leys sont fondues , 4 Eliz. 265. warrant in holy Scripture , our Law giueth credence .

1 The Sabbath day is no day for law Cases , vpon a fine leuied with Proclamations according to the Statute , 4 H. 7. Cap. 24. if any of the Proclamations be made on the Lords day , all the Proclamations are erronious , for the Iustices may not sit vpon that day , but it is a day exempt from such businesse by the Common-law for the solemnity of it , to the intent that all people may apply themselues that day to praier and seruing of God .

No Plea shall be holden Quindena paschae , because it is alwaies the Sabbath , but it shall be Crastino quindenae paschae . F. N. B. 17. f.

If a Writ of Scire facias out of the Common-place 1 Eliz. Dy. 16● beare Teste vpon a Sunday , it is error , because that is not Dies iuridicus in Banco .

No sale vpon a Sunday shall bee said a 12 E. 4. 8. sale in market ouert to alter the property .

Of Grammer , the rules are infinite in the Etymologie of words , and in the construction of them , what their nature is single , what ioyned with other : among the rest which need not be remembred , this one wee haue common in our Bookes .

2. Words , in construction must be referred to the next antecedent , where the matter it selfe doth not hinder it .

An Endictment of murder , found in this sort , That Eliz. fuit in pace &c. quosqu● 32. H 8. Dy. 46. b. A. vir praefat. Eliz. de D. in Com. S. Yeoman , did kill her , is good ; for the addition Yeoman , must of necessity referre to the husband , because a woman cannot bee a Yeoman ; but an endictment quousque Alicia S. d● D. in Com. S. vxor I. S Spinster , &c. is no● good against Alice S. for there Spinster being an indifferent addition , both for ma● and woman , must referre to I. S. which is the next antecedent , and so the woma● hath no addition . So of an enditement against 9. E. 4. 48. I. S. seruiens I. D. de D in Com. Midd● Butcher : This is not good , for , Seruant is no addition , and Butcher referreth to th● Master , which is the next antecedent .

From Logick ; In the Maxime of causes and effect●

3. The cause ceasing , the effect doth lik● wise cease .

The King granteth an Office to one ● 5. E. 4. 8. b. 〈◊〉 , and ten pound fee during life prooffi 〈…〉 illo , now if the King put him from his office the fee shall cease .

The Executor , nor husband ( after the 7. Eliz. 293. b. death of his wife gardein in soccage ) shall retaine the Wardship , for the Garden hath it not to his owne vse , but to the benefit of the Heire : and the Executor , or husband haue not the affection which the Testator or his wife had , which was the cause that the Law gaue them the Wardship .

If a stroke be giuen the first day of May , and the King pardon him the second 13. Eliz. 401. day of May , all felonies and misdemeanors , the party smitten dieth the third day of May , so as this is no felony till after the pardon , yet the felony is pardoned , for the misdemeanor is pardoned , and therefore all things pursuing are also pardoned .

The King hath a Ward , pur cause de gard , and after maketh liuery to the first 13. E. 4. 10. b. Ward , now the second Ward shall not sue liuery .

If two Coparceners make a Lease reseruing a rent , they shall haue this rent in common , as they haue the reuersion : But if afterwards they grant the reuersion , excepting the rent , then they shall bee Ioyntenants of the rent .

It is no principall challeng to a Iuror that he hath married the parties mother , if she 14. H. 7. 2. be dead without issue , for the cause of fauour is remoued .

4. Things are construed according ● that which was the cause therof .

A man makes me sweare to bring hi● 44. E. 3. 14. b. money to such a place , or else hee will kill me , I bring it him accordingly : This is folony in him . So if hee make me sweare ● 14. Ass. pl. 20. surrender my estate vnto him , and I do f● afterwards , this is a disseisin to me .

One imprisoned till hee be content ● 21. E. 4. 68. b. make an obligation at an other place , an● afterwards he doth so , being at large , ye● he shall auoid it by dures of imprisonmen●

Outlary in trespasse is no forfeiture o● 3. E. 3. 84. land , as outlary of felony is , for thoug● the not appearing be the cause of outlar● in both , yet the force of the outlary sha● be esteemed according to the hainousnes● of the offence , which is the principall cau● and foundation of the processe .

A man and feme sole haue a villein , an● afterwards entermarry , and the villein pu●chaseth land , they shall not haue the lan● by entierties , but by moities ioyntly , or in common , as they had the villein .

5. According to that which was the b●ginning of it .

If a Seruant ( departed out of his M●sters 33. Ass. pl. 7. seruice ) kill his Master vpon a mali● that he beare him whilest hee was his se●uant , it is pettie treason .

● . erects a Shop vpon the Kings Freehold , 10. Eliz. Dy. 266. b. the King grants the land to B. in fee ; A. before entrie or seisor of the shop by the Kings Patentee , continueth his possession and dieth seised . This is no discent to ●●ll the Patentees entry : for by his first erecting of the Shop , hee could gaine nothing against the King .

6. And therefore a deriued power cannot be greater than that from which it is deriued .

The Atturney of one that is disseised Litlet . cannot make claime off from the land , if the dissessee himselfe durst haue gone to the land .

The Bailiffe of a disseisor shall not say , 28. Ass. pl. 4. That the Plantiffe neuer had any thing in the land , for the Master himselfe shall not haue that plea , because he is not Tenant of the Freehold .

The Seruant shall bee estopped to say , 2. E. 4. 16. The Free-hold is his Masters , by recouery against his Master , thou'gh the seruant himselfe be a stranger to it , for he shall not bee in better condition than hee in whose right he claymeth .

7. Things are dissolued as they bee contracted .

An Obligation , or other matter in writing 19. E. 4. 1. b. cannot bee discharged by an agreement by word .

In an annuity growing by prescription 5. H. 7. 33. rien arere is a good plea , for this prescription is a matter in fait : but in an annuity by deed it is no good plea , without shewing an acquittance .

When a man auoides the Kings title , by 4. H. 7. 7. b. as high a matter of record as the King claimeth , he may haue it by way of plea , without being driuen to his petition , though the King bee entituled by double matter of record ; as one is attainted of treason by Parliament , and an office findes his lands , whereby the King seiseth them , The party may alledge restitution by Parliament , and a repeale of the former act .

8. Things grounded vpon an ill and void void beginning cannot haue a good perfection .

An Infant , or a feme couert make their 10. El. 344. will , and publish it , and after dying of full age , or sole , yet the will is nothing worth .

One disseised of two acres in D. releaseth all his right in all his lands in D. and deliuereth it to a stranger , to bee deliuered ouer to the disseisor as his deed , such a day : before which day , the disseisor disseiseth him of an other acre in D. and then the release is deliuered ouer to him , yet nothing of the right of this third acre passeth by the release .

9. Hee that claimeth paramount , a thing shall neuer take benefit nor hurt by it .

Two Ioyntenants , one makes a lease 2. & 3. El. Dy. 187. for yeares of his moity , reseruing a rent , and dyeth . The suruiuing Ioyntenant shall haue the reuersion of his moity , but not the rent , for hee commeth in by the first feoffor , and not vnder his companion . So of the wife , where the husband being lessee for yeeres in her right , maketh a lease of part of the terme , reseruing a rent .

An Executor recouereth and dieth intestate , administration of the goods of the first testator is committed to I. S. I. S. shall not sueexecution vpon this recouery .

Dower cannot be assigned , reseruing a rent , or with a remainder , ouer , for shee is in from the husband , and not from him that assigneth dower .

10. According to the end .

Vouchee commeth into the Court to 31. E. 3. Ioynder in ayd. 10. be viewed , and being viewed , is awarded of full age ; yet hee shall not be driuen to answer , till he come in to the same intent by other Processe .

The vouchee , vpon a Grand cape ad valentiam , 19. E. 4. 3. shall not lose the land , though he cannot saue his default , for the processe is onely to this end to haue him to appeare .

A man that is warned by Writ to answere 50. ass. pl. 2. to a matter shal not be driuen to answere any other matter than is contained in that Writ , though the King bee partie . As if by office it be found , that lands in chiefe discended to I. S. a foole naturall , and that A. occupieth them , whereby a Scire facias goeth out against A. to answere why the lands should not bee seised into the Kings hands for the Ideocie of I. S. A commeth in and pleads , That I. S. when he was of perfect memorie , made a release to one B. who infeoffed A. This is good enough without shewing any licence of alienation to discharge himselfe for the purchasing of those lands .

In the maxime of Subiects and adiuncts .

11. Where the foundation faileth , all goeth to the ground .

A Church appropriated to a spiritual corporation , 3. E. 374. b. becommeth disappropriate , if the corporation be dissolued .

A disseisor of lands in ancient demesne 49. E. 3. 8. the Lord confirmes vnto him to hold at the Common Law , the disseisee reentreth ; now the land shall be ancient demesne againe : for the estate ( whereupon the confirmation should inure ) is defeated .

When an estate ( to which a warranty is Lit. knit ) is vndone , the warranty also is vndone . As if Tenant in taile discontinue , and the discontinuee is disseised ( or make a feoffement vpon condition ) in whose possession a collaterall ancestor of the issue in taile releaseth and dieth , the issue is barred . But if the discontinuee enter vpon the disseisor ( or vpon the feoffee for the condition broken ) the issue is restored to his formedon .

12. Things incident cannot be seuered .

Estouers , or wood graunted to be burnt 12. El. 381. in such a house , shall goe to him that hath the house , by whatsoeuer title : for one is inseperably incident to the other .

Lord & Tenant by fealtie and homage , the Lord releaseth his fealtie ; this is void : 7. E. 4. 11. for fealtie is incident to homage .

An office of skill and diligence , or annuitie , pro concilio impendendo , cannot be forfeited 12. El. 379. by attainder of Treason .

A Court baron is incident to a mannor , and Court of Pipowders to a Faire : therefore 19. H. 8. Br. incidents 34. one cannot grant the mannor or faire , reseruing those courts . Where one holdeth of a man to keepe his Castle the Lord cannot 31. E. 3. ass. 441. grant his Castle gard , reseruing the Castle .

13. Things by reason of another , are of the same plite .

The custome of Gauelkind is not changed , though a fine or recouerie bee had of the same at the Common Law : for this is a custome by reason of the land , and therefore runneth alwaies with the land .

But otherwise it is of lands in auncient 6. E. 6. Dy. 72. b. demesne , partible among the males : for there the custome runneth not with the land simply , but by reason of the auncient demesne : and therefore because the nature of the land is changed by the fine or recouerie from ancient demesne to land at the Common Law , the custome of parting it among the males is also gon .

An erronious recouerie had of lands in F. N. B. 21. b. Boroughenglish , the puisne sonne shall haue a Writ of Error , because the land it selfe goeth to him . So shall all the sonnes of lands in Gauelkind .

Two Coparceners make partition , and 42. E. 3. 3. one couenants with the other to acquit the land : now if the Couenantee alien his part , the Alienee shall haue a writ of Couenant .

Personall things .

14. Cannot be done by another .

Suite of Court cannot be done by another . 7. H. 4. 19.

A man cannot excuse himselfe of a contempt 22 E. 4. 34. ( as of not seruing the Kings Processe ) by Attornie , but in proper person .

15 Cannot be granted ouer , as matters of pleasure , ease , trust , and authoritie .

A licence to hunt in my parke , to goe to 12. H. 7. 25. Church ouer my ground , to come into my house , to eate and drinke with me , cannot be granted ouer . So of a way granted for 7. H. 4. 36. life ouer my ground .

The Patentee for life of an office of trust , 11. E. 4. 1. ●s to be a Chamberlaine of the Exchequer : Squire of the bodie cannot assigne it , vnlesse it be specially limitted in his Patent that he may . For then he might grant it to one in whom the King hath no trust , or that would be negligent &c.

The keepership of a Park , Stewardship , 12. El. 179. Bailywicke of Husbandrie , &c. for life , cannot be granted ouer , because they are offices that require skill and diligence .

A. licenceth B. to doe an act : B. cannot Br. licences 25. ●●●nt this licence to another .

A Warrant of Atturney made to one to 19. H 8. 10. deliuer seisin , he cannot grant this his authoritie ouer .

16. Die with the person .

When a Corporall hurt or dammage is 12. H. 8. 12. done to a man , as to beate him &c. if hee or the partie beaten die , the Action is gon .

Lessor Couenants to pay quitrents during 1. & 2. P. & M. 114. the terme , & dieth , his executors shal not pay them : for it is a personall Couenant , which dieth with the person .

Among the disagreeable arguments .

First from those that differ onely in a certaine respect and reason , not in déed and in nature .

Things doe inure diuersly , according to the diuersitie of

17. Time .

Lands giuen in Frank mariage , reseruing 26. Ass. pl. 66. a rent , the reseruation is void till the fourth degree past , and afterwards good .

Person viz.

18. The same person .

One that hath a rent charge going out of 14. H. 8. 6. the wiues lands , releaseth it to the husband and his heyres : the husband yet shall not haue it ▪ but it shall inure to him by way of extinguishment onely , as seised in right of his wife .

19. Seuerall persons .

A man makes a lease of a Mannor , except 1. & 2. P. & M. 104. an acre , this acre is no part of the manor , as to the lessor , but as to him that hat● right to demand the mannor by an eig● title , it remaineth parcell , and therefore h● shall make no foreprise in his Writ .

If tenant in taile and his issue disseise th● discontinuee of tenant in taile ; and tena● 11. E 42. in taile die , whereby the lands disend ● the issue : Now he shall be remitted , an● shall be in as tenant in taile against eue● stranger , and derraigne the first warrantie ; but not as against the discontinuee , because he was Particeps Criminis .

Then from Relatiues .

20. No man can doe an act to himselfe .

A man cannot present himselfe to a benefice , make himselfe an officer , nor sue 13. H. 8. 22. himselfe : and therefore when a man hauing right to land , hath the freehold cast Lit. 147. b. vpon him by a latter title , he shall bee sayd in of his ancient title , because there is no bodie against whom he may sue , but himselfe , and he cannot sue himselfe .

No more can a man summon himselfe . 8. H. 6. 29.

And therfore if the sherife suffer a common recouerie , it is error , because hee cannot 3. El. Dy. 188. summon himselfe .

A man cannot be both Iudge and partie in a suite . 4. M. B. com. 25.

And therefore if a Iustice of the Common place be made a Iustice of the Kings Bench : though it be but hac vice , it determineth his patent for the Common place . For if he should be Iudge of both Benches together , he should controll his own iudgments : for if the Common place erre , it shall be reformed in the Kings Bench.

Of Comparisons .

From the equals .

21. Things are to be construed Secundum equalitatem rationis .

Vpon a recognisance acknowledged by ( c ) 27. Eliz. Coo 3. 136. S●● Willi Herberts case . the Ancestor , or a Iudgement in an Action of Debt giuen against him : if he die seised of two acres , whereof one holden in Borough English , or hauing issue two Daughters which make partition , or if he die without issue , whereb part of his land discendeth to the heire of his fathers part , and part to the heire on the part of the mother : in all these cases if one onely be charged , he shall haue contribution against the other : for they are in aequali iure .

If two , foure , or more men being seuerally D 26. als pl. 37. seised of land , ioyne in a recognisance , all their lands must equally be extended .

And this is a Logicall vertue , a kinde of Bract. l. 1. cap. 3. equitie as Bracton calleth it , where he saith , Equitas est rerum conuenientia quae paribus in causis paria iura desiderat , & omnia bene coaequi parat : Et dicitur aequitas quasi aequalitas . Whose nature is to amplifie , inlarge , and adde to the letter of the Law .

Especially this shineth & sheweth forth it selfe in the exposition of Statutes , by extending things there prouided to mischiefs in the like degrees , whereof the examples euery where are pregnant , and in guiding the grounds and maximes of things , that newly start vp , by the rule of the Common Law .

Vses at the Common Law were (a) (a) 23. H 8. Fitz. nothing , yet in time gaining greater regard to be imputed among inheritances , are demeaned as other inheritances at the Common Law . So as a possessio fratris shall bee of them , and of lands in Borough English , the vse shal discend to the puisne . And now also these vses beeing turned into estates , shall be demeaned in all respects as estates in possession .

So when (b) (b) C●● . 4. 2● ▪ Custome createth inheritance in Copihold lands , and maketh the lands discendable , then shall the Law direct the discents according to the maximes and rules of the Common Law , to haue a possessio fratris , and such like : but not in collaterall things , as Tenancie by curtesie Dower , discent to toll an entrie , &c.

From the greater and the lesse .

22. The greater doth containe the lesse .

By a pardon of murder , man slaughter is pardoned .

An attaint supposing a verdict to haue passed before two Iustices , wheras it passed before foure , is good enough .

A recouery pleaded of three acres , where it was of sixe , is good enough .

A Condition that I shall not infeoffe I. S. is broken , if I. infeoffe him and I. D.

A Copiholder of a mannor , where the custom giueth libertie to demise in fee , may demise it for any lesse estate , without other prescription

Where the custome is , that a man shall not deuise his lands for any higher estate 18 E. 38. than for terme of life , yet if a deuise bee in fee , and the deuisee claime but for life , the deuise is good .

By the statute 32. Henric. 8. that giueth 3 & 4 P. & M. Dy. 150. b. power to deuise two parts of ones lands , a deuise of the whole had bin good for two parts , though the Statute 34. & 35. H. 8. of explanations had not beene made .

23. A matter of higher nature determineth a matter of lower nature .

A man hath liberties by prescription , & 21 H. 7. 5. after taketh a grant of those liberties by Letters Patents from the King , this determineth the prescription , for a matter in writing determineth a matter in fait .

If an offence , which is murder at the 33. H. 8. Dy. 50. Common-law bee made high Treason , no appeale shall lie of it , because the offence of murder is drowned , and it is punishable as high treason only , whereof no appeale lyeth .

24. The more worthie thing draweth to it things of lesse worthinesse .

An adulterer takes away another ma●● 11. H. 4. 31. wife , and puts her in new clothes , the husband may take the wife with her clothes .

A boxe insealed with charters , it shall 10. El. 323. b. goe to the heyre with the Charters , & not to the Executors .

A base Myne where there is Ore , shall be the Kings for the worthinesse of the Ore .

The bodie of a man is more worthie than 3. El. 238. land , therefore land shall follow the nature of the person :

As a villein shall make free land to bee villein land , but villein land shall not make a free-man to be a villeine .

So the Kings land which he hath in his naturall capacitie , shall be demeaned according to the priuiledge and prerogatiues of his bodie royall .

And therefore

25. Things accestarie are of the nature of the principall .

A seruant procureth another to kill his 40 Ass. pl. 25. master : This is no pettie Treason , in the seruant , because it is but felony in the other which is the principall . 7. H. 6. 19. b.

A Parson grants an annuitie with a Nomine poene , the successor shall be charged with the Nomine poene due in his predecessors life , and not his executors .

The profits of the office of a Filizer , &c. 26 , H. 8. Dy. 7. b. cannot be put in execution vpon a recognisance , Statute , &c. because the office it selfe , being an office of trust , cannot .

Tith is not payable of Okes vsually topped 26 El Moline . and lopped ( though it be euerie seuen or eight yeares ) for the branches are of the nature of the principall ( that is to say ) the Oke it selfe ) for which no Tithe is to bee paid .

26. A mans owne words are voide , when the law speaketh as much .

Lands giuen to two , & vni eorum diutius viuenti , they make partition , and one dyeth ; 30. ass. pl. 8. yet the lessor shall haue again the moitie of him that dieth , for vni eorum diutius viuenti are but idle words , because ( without them ) the Iointenant , by course of Law is to haue all , if he doe suruiue .

From the rule of methode .

In things of ffor malitie

27. The generals must go before , and the specials follow after .

In a Writ the (c) (c) The rule of the Register . generall shall be put in demand , and in plaint before the special : as land before pree , pasture , wood , iuncarie , marish , &c. wood before Alders , will owes , &c.

28. The more worthie is to be set before the lesse worthie .

The entier thing shall be demanded before Ibid. the moitie part or parts .

The thing of greater dignitie before that Ibid. which is of lesse : as a mease before land , a ●astle before a messuage or mannor .

In a repleuin if it be of two Cattels , one ibid. quicke and the other dead , the liuing thing shall be first demanded .

Where one hath the presentment to a Church two turnes , and another the third turne : he that hath the third turne , bringing a Quare impedit , shall not begin with his own turne first , but with the other two turnes .

Next are the precepts of Naturall Phylosophie .

29. Law respecteth the bonds of Nature .

Affection for the prouision for the heires males that one shall ingender , brotherly loue , &c. are good considerations to raise a vse : but long acquaintance and familiaritie are not .

The sonne may maintaine his father , & one brother another .

Brothers or cosins shall not wage battell in a writ of right .

A Statute that maketh it felonie to receiue or giue meate and drinke to one that committeth such & such an offence knowing it , stretcheth not to a woman that receiueth or giueth meat & drink to her husband in such a case .

30 The Law iudgeth and esteemeth of al ●●cording to their nature : both persons & their ages , things , actions , and the time of the doing them .

In persons ,

It looketh to the excellencie of some , & giueth them singular priuiledges and preheminences aboue the rest . As to the King , the Queen his wife , Noblemen , and Peeres of the Realme . Also vnto them of the Church .

It tendreth the weakenesse and debilities of others ; As of

Men out of the Realm , or in prison , Feme Couert ( and therefore fauoureth them for their dowers ) infants , men vnlettered . Ideots out of their eight minde , or without all vnderstanding , as those that are borne dumbe deafe , and blinde , or hauing other imperfections .

If a disseisor die seised , the disseisee beeing all the while within age , Couert baron in prison or out of the Realme , it shall be no discent to toll the entrie of the disseisie .

Vpon a lease made to a husband & wife , shee shall not bee charged after the Huslands death , for wast done by him in his life time .

A woman shall be indowed of the best possession of her husband : as if the husband held of I. S. by iij. d. who held out of another by xx . d. and I. S. release to the husband ( so as now the husband holds by xx d ) the wife being indowed of this land , shall hold onely by the third part of iij. d. and not of xx . d.

An Infant , Ideot , and a man of non sane memorie , may enter , or haue an action to auoid their feoffements .

If a dumbe person bring an action , hee shal plead by procheine amy .

31. Strangers not parties nor priuies .

Lessee for yeares grants a rent charge , & 1 , El. 198. surrenders , yet the rent shal be paid during the yeares .

So if he in the reuersion grant a Rent charge during the terme , and then the lessee surrendreth vnto him , he shall pay the rent during the terme : for a stranger ( that is , the grauntee of the rent ) for his benefit shall say , that the terme continueth , & that it is determined .

And therefore

Things done in anothers right .

A person out-lawed or excommunicated may haue an action as executor of another man .

And a villeine in such case against his Lord : for they recouer not their owne but to anothers vse .

32. It disfauoureth other some .

Aliens neither borne within the Real● nor free denisens , that they shal not pa●ticipate of the priuiledges of natur● borne subiects .

Especially aliens that are enemies .

Alien enemies shal not haue so much : a personall Action , which other Alie● may .

An obligation made to an alien ene● shall goe vnto the King .

Any bodie may seise the goods of an a●en enemie , to his owne vse .

Touching their ages .

33 It holdeth

xxj their full age to make good any ● they doe .

xiiij their age of discretion .

And therefore

That a competent age to bind a man ● matter of marriage .

xij to bind the woman .

ix to deserue her dower .

In things

34. It respecteth euerie one according to worthinesse . As

Life and libertie most ; the person aboue his possessions ; freehold and inheritance more than it doth chattels ; reall chattels more than personall .

None shall haue iudgement to recouer in an action of wast , where the wast commeth but to 12. d or such a pettie summe , for De minimis non curat lex .

A lease for life , the remainder for yeres , the remainder ouer in fee , an action of wast lieth for him in the remainder , against lessee for life : for the meane estate for yeares is not regarded . Otherwise it were if the immediate estate of the remainder were an estate for life .

A villeine infranchised for an hower , is for euer . So infranchised vpon condition , the condition is voide , and the infranchisement absolutely good .

If a man for feare and simplicitie will confesse himselfe guiltie of a felonie , yet the Iudge must not record that confession , but suffer him to plead not guiltie : & that is in fauorem vita .

35. A matter in the right more than a matter in possession .

In auowrie or annuitie , aide shal not b● of a person , if the plaintife be seised by t● 3 E. 3. 88. hands of the same person , because it is ● the persons owne wrong to denie it .

Otherwise in a Cessauit , for that is in t● right for the land .

In an action of Trespasse against tena● for life , who pleads villenage in the plai●tife , 14. H. 7. 5. K●ble . and the piaintife is found franke at no villeine , yet he in the reuersion is not stopped by this verdict : for the thing it sel● whereupon the reuersion dependeth is ● in demand , and the plaintife shall recou● onely dammages : neither can he in the ●uersion haue a writ of errour or attaint v●on it .

Otherwise it is in a Natiuo habendo : ● there the right of villenage commeth ● question , and he in the reuersion may ha● an error or attaint .

Yet it fauoureth

36. Possession where the right is equall●

A man purchaseth at one time seue● lands holden of seuerall Lords by Knig● seruice , and dieth : the Lord that first ● happe the Wardship of his heire , sh● haue it .

Husband and wife purchase socage la● 3. El. 296. vnto them and the heires of their body , a● hauing issue within fourteene yeres of a● ●●w if the Grand-mother of the part of the mother of the issue doe first seise the bodie , shee shall haue the Wardship , and not the Grand-father of the part of the father of the issue .

37. Matters of profit , or interest largely : of pleasure , ease , trust , authority , or limitation strict .

A licence to hunt in my Parke , or walke 13. H. 7. 13. in my Orchard , extends but to himselfe , not to his seruants , or other in his company , for it is but a thing of pleasure , otherwise it is of a licence to hunt , kill , and carrie away the Deere , for that is a matter of profit .

Way granted to Church ouer my land , 1● H. 7. 25. b. extends not to any other but himselfe , for it is but an easement .

A reuersion granted to two ioyntly , and 11 H. 7. 12 b. the Tenant atturnes to one , it is a void atturnement .

If the Sheriffe behead one that should 35. H 6. 58. b. be hanged , it is felony .

The King licenceth one to alien the 4 E. 6. 68. b. third part of his land , and he alieneth all , it is a void alienation for all .

A lease is made to A. and B. for their liues , A. dieth , B. shall haue all during his life , for it is an interest .

But if a Lease be made to I. S. during the life of A. and B. there ( if one of them dye ) the estate is vtterly determined , for that is a limitation .

38. Therfore these may be counterma●●ded , so cannot those .

A licence to come to my house to speak● with me : (a) (a) 1. E. 5. 2. Goods bailed ouer , to deliue● 9. E. 4. 4. b. to I. S. or (b) (b) 28. H. 8. Dy. 22. to bestow in almes . (c) (c) Park . d. A lette● of Attourney to deliuer seisin : all thes● may bee countermanded before they b● done .

But if I present I. S. to a Church , I cannot ●4 . E. 4. ● . after vary and present a new , for a kin● of interest passeth out of mee .

So if I deliuer an Obligation as a scrowl● into a Strangers hand , to bee deliuered t● Park . 19. ● . the obligee , vpon condition performed , f● the Obligee is as it were partie or priuy ● the deliuerie .

39. Matters of substance more than ma●ter of circumstance .

Pleas in barre , and replications ( thoug● 21. H. 7. 24. ● . the Plantiffe be afterwards non suit ) make an estopple , for they are expresse allegations & material . As in debt vpon an obligation if the Defendant plead in barre an acquittance made at D. or if the defendan● plead an acquittance , and the plantiffe reply , that it was made by dures of imprisonment at D. now in another action , neithe● the defendant shall plead that the acquittance , nor the plantiffe that the dures was , at an other place : But a matter in the wri● 〈…〉 count , makes no estopple , for they are 〈…〉 t supposels :

As in a formidone and claime by discent 〈…〉 m I. S. or a mortdancester , as sonne and 〈…〉 e to I. S. ; yet in another formidone hee 〈…〉 y claime from I. D. and shall not bee estopped .

No more shall recitalls make any estoppell , for they are not materiall . As where 33. H. 6. 10. b. A. reciting that hee is seised in fee of the mannor of D. graunteth a rent out of it to B. this shall not estoppe A to say that hee had nothing in the mannor .

39. Things executed and done , more than ●●●ngs executorie , and to doe .

● feme disseisers taketh a husband , the disse●sy releaseth to the husband , afterward 32. H. 8 Br. Darretnement 18. a diuorce is had for precontract : yet the release remaineth good , because it was executed .

A feoffment made to the vse of ones wil , 20. H. 7. 11. if his will be declared before or at the time of his feoffement ; it cannot be altered , because it is executed .

Otherwise it is of his will declared after .

Po●●●bilitie of things .

And therefore

40. Nothing to be voide , that by possibilitie may bee good .

Lands giuen to a married man and another 15. H. 7. 10. mans wife , and the heires of their two bodies ; is a good estate in taile ( and that presently executed as some thinke ) for the possibilitie that they may entermarie .

A mesualtie is giuen in taile , reseruing a rent , this is good : for the tenancie may escheate 1. H. 4. 1. to the donee , & then the donor shal distraine for all his arrerages .

A man han hath issue a daughter , and leaueth his wife priuiment inseint : the wife 41. E. 3. 11. b. may detaine the charters of her husbands lands from the daughter , for the possibilitie that it may bee a sonne that shee goeth withall .

42. A mutuall recompence .

An assumption or promise doth then only binde , when it is made vpon good consideration of another thing .

Cesti qui vse may grant his vse without consideration , as he may his horse or other chattell : but he cannot raise a vse without good consideration . And this consideration must be some cause or occasion meritorious , amounting to a mutual recompence in deed or in law .

A writ of annuitie shall be maintained by a parson against a Vicar , vpon an Ordinance of the ordinarie , if there be Quid pro quo .

In Actions .

43. It yeeldeth fauour , when for the doing of it there is

Necessiitie .

Funerall expences shall first of all bee Br. executor 172. discharged by executors .

A man may milke a Cow that hee hath by returne irreplegiable . And that is for the necessitie .

A man in his owne defence for the necessitie 4. E. 6 , 19. of the sauing of his life : & a champion in a writ of right for the necessitie of triall , may kill another .

Whether referre

44. Conformitie , which is a kind of necessitie .

Rent must be demanded , though no man be vpon the land to pay it . Br. for . Mar. 12.

Where an infant in ward marrieth himselfe , yet to haue the forfeiture of the marriage , the Lord must tender him one . 40. E. 3. 30. b.

He that pleadeth in the auoidance of a fine , That the parties to the fine had nothing ; must shew who had .

But it is not trauersable , but only shewed for Conformitie .

45. Of Colour .

If the heire indow the ancestors wife , 41. E. 3. 28. though she were not dowable , yet she shall hold in dower .

Where a Court hath no colour to hold plea ( as a Court Baron of land not holden 22. Ass. pl. 64. of the mannor ) all is void .

But where there is colour ( as if a Court Baron hold plea of land within the Mannor ) though it be by plaint , where it should be by Writ originall ; yet the iudgement rendred , is only voydable by writ of Errour .

A woman grants a reuersion , and marries with the grantee , if the tenant pay him the rent generally , it is no Atturnement : for he hath colour to pay it him , as seised in the right of his wife .

46. It priseth Acts in law higher than those that are done by the partie .

Vpon the grant of a rent , the Tenaunt cannot attorne nor put the grantee in possession by an Oxe or such like , because it is 49. E. 3. 15. another thing : but vpon the recouerie of rent , the Sherife may .

Parceners may compell partition , so cannot Ioyne-tenants , nor tenants in Littlet . common .

For equalitie of partition among Coparceners , a rent granted shall be a fee simple , 2. & 3. P. & M. 134. ● . 29. Ass. pl. 23. without words ( heires ) and issuing out of the lands , without so expressing it in the grant .

Also things that otherwise cannot , may a. 2. H. 7. 5. passe without deed , as a rent , reuersion , ( b ) 21. E. 3. 7. seigniorie , way auowson , composition , to ( c ) 11. H. 4. 3. present by turne . ( d ) 28. H. s Dyer 29. Fitz. N. B. 34. ● .

Parceners may haue a Quare impedit one against another ( that is , the eldest daughter may haue it against the rest , if she be disturbed of her presentment . )

So cannot Ioin-tenants , nor Tenants in common .

47. It reputeth that men will alwaies deale for their owne best aduantage .

And therefore

46. Beleeueth against the partie , whatsoeuer is to his owne preiudice .

For the time of doing things :

It countenanceth more

48. Things done in time of peace , than in time of warre .

A disseisin and discent in time of warre , shall not toll the entrie of the disseisee . Lit. 97.

Vsurpation in time of warre gaineth no 7. E. 3 darrein presentment 2. possession ; but the other may haue an assise of darreine presentment ( that notwithstanding ) if his ancestor presented last before . Fitz. N. B. 31. ●

49. Things done in the day , more than in the night .

Rent payable at a day , the partie hath all the day till night to pay it : but if it bee a 1. Mar. 172. b. great summe , as 500. or 1000. l. hee must be readie as long before the Sun set , as the monie may be told : for the other is not bound to tell it in the night .

A man must not distreine in the night time for rent behind .

Where things are fit to be straitned to a time , it esteemeth ( according to the nature of the things )

50. Sometimes a whole day sufficient .

Where goods are lost in warre , and recouered from the enemie by another of the kings subiects , the owner shall haue them againe , if he make fresh suite before the Sunne set , else not .

51. Sometimes a whole yeare .

The Lord loseth his villeine for euer , if a villeine flie into ancient demesne , & there continue a yeare and a day , without claime of the Lord .

Recouerie in a Writ of right , and fine● executed , bind all persons though they haue right , that lay not to their claime within ● yeare .

The King cannot grant a protection to indure longer than a yeare .

52. The third offence it estéemeth more heynous .

The third Writ not returned by the sherife , is a contempt , whereupon an attachment lieth .

Politicall precepts follow .

The Law fauoureth

53. Things for the Common : weale .

A man may iustifie the doing of a wrong 29. H. 8. Dy. 36. b. in things that sound for the Common-weale .

As in time of warre , to make Bulwarkes in another mans soyle without licence . To rase ones house on fire , in safegard of the neighbors houses .

A Sherife may breake open the dores of ones house to take a felon . But not to serue a Capias in an action of Debt or Trespasse : for that is a particular case , and not for the Common-weale .

Fishermen may iustifie their comming 8. E. 4. 18. b. vpon the land adioyning to the sea , to drie their nets : for fishing is for the Common-wealth , and sustenance of all the Realme .

A mill-stone that is lifted vp to be picked and beaten , cannot be distrained , for it 14. H. 8. 25. remains parcel of the mill , which is a thing for the Common-wealth .

Things brought into an Inne or Faire , or 22. E. 4. 49. Market ; or cloth lying in a Tailors shop , or a horse that is a shooing , shal not be distreined .

Publique quiet .

And therefore

54. Common error goeth for a Law .

An acquittance made by a Maior in his ● . R. 3. 7. owne name onely ( where the towne is incorporate by the name of Maior , Sherife , & Burgesses ) shall bee allowed for good , if there bee an hundred precedents and more of like acquittances . And that is for common quietnesse .

Whether a common recouerie be a barre Manxels case f. 2. vnto an estate taile or no , is not to be disputed , because a great part of the inheritance of the Realme doth depend vpon it .

Of this kind are those Deconomickes .

The husband and the wife are one person .

And therefore

The wife is of the same condition with her husband .

Franck if he be free , Denisen if he be an Fitz. N. B 78. ● . Abridgement of assises ꝑ Br. denisen 2. English man , though she were a neif before or an alien borne .

55. They cannot sue one another , or make any grant one vnto the other , or such like .

If the (a) (a) 21. H. 7. 29. b. woman marrie with her obligor , the debt is extinct , and she shall neuer haue action against the Co-obligor ( if another were bound with him ) because the suit against her husband , by enter-mariage was suspended . And therefore being a personal action , and suspended against one , it is discharged against both .

So , if a feme sole baile goods to one , and marrie with the baile .

Likewise the husband cannot infeoffe Park . 40. his wife , but vpon a feoffement made vnto her by a stranger , he may deliuer seisin vnto her by Letter of Attornie ; for thereby himselfe giueth nothing .

56. Vpon a ioynt purchase during the couerture , either of them taketh the whole .

If the husband alien land &c. so giuen , 39. H. 6. 45. 21. R. 2. iudg. 63. she shall recouer the whole , in a Cui in vita after his death , and the warrantie of one of them or his ancestors , is a bar of the whole against them both .

And if a feoffement be made to the husband Littlet . 65. and wife , and a third person ; the third person taketh one moiety , and the husband and wife the other moiety .

The husband is the womans head :

And therefore

58. All she hath is her husbands .

The personall things she hath are meerly his ; but reall things , whether land , rents , &c. or chattels reall , and things in action he hath onely in her right : yet so , as of reall chattels & things in action , he may dispose at his pleasure , and shall haue the reall chattels if he ouer-liue . Of things in action , her selfe may dispose by will .

If Tenant in tail enfeoffe a woman and Littlet . 148. die , and his issue within age take her to wife , he shall be remitted , and the woman now hath nothing : for hee cannot sue any formedon in this case , vnlesse he will sue against himselfe , because by the enter-mariage himselfe is seised in her right .

If one that hath a lease for yeares , grant ●4 . Eliz. Ploy. 418. his terme to a feme Couert , and another , or if a feme sole and another be Ioynt-tenants for yeeres , and shee take a husband , yet the estate of the feme and ioynture doth continue , so as the suruiuor of the wife ; or of the other shall haue the whole : and if a stranger oust them , her husband and shee must ioyne in an eiectione firme , and the feme shall haue iudgement as well as the husband : And (a) (a) 1. Eliz. Ploy. 191. in pleading he may say , That they are possessed in her right . Neither can the husband , where the wife hath a terme for yeeres , either deuise it to another 14. Eliz. Ploy. 419. by his will ( for she hath an estate in it before and at the time of his death , which preuenteth the deuisee ) or grant a rent 14. Eliz. Ploy . Ibid. charge out of it , for she suruiuing is remitted to the terme , and therefore shall auoid the charge , but by an expresse act he might in his life time haue giuen it away . But if a woman hauing chattels personall take a husband , the law deuesteth the propertie out of her , and vesteth it in her husband onely .

And if goods bee giuen to a feme Couert , and another , the ioynter is straight way seuered , and the husband and the other are Tenants in common ; and the excutors ●1 . H. 7. 29. of the husband shall haue all the goods that were his wiues .

But in an action of debt vpon arrerages 16. E. 4 8. of an accompt ( where one was receiuer to the feme whilest she was sole ) they both must ioyne , and that although the auditors were assigned during the couerture for the verie cause of action , that is , the receipt ( whereunto the assignement of auditors is but a thing pursuant ) was in her right ; yet the husbands release of an obligation 7. H. 6. 1. made to the feme , or where goods were taken from her whilest she was sole , shall be good against the wife if he die . But if he die without making such a release , the wife shall haue an action vpon the obligation , and not the executors of the husband : Likewise the wife suruiuing , or her executors 39. H. 6. 27. if shee die , shall haue those things in action , and not the husband ; or she may make her husband her executor , and then hee shall recouer them to her vse . But a ● . Eliz. Ploy . 191 lease for yeares , which the wife , shall bee the husbands , if shee die before him : for that is a thing in possession and not in action .

59. Her will is become his will , and subiect vnto it .

Vpon a feoffement to a feme Couert , shee taketh nothing vnlesse her husband will agree ; and where one is bound to enfeoffe the husband and wife , the husbands refusall is the refusall of them both ; but where the husband and wife are ioynt purchasors , the husband may make a feoffement and liuery vpon the land , which shall worke a discontinuance , though the wife be in presence vpon the land and will not agree . If they bargaine and sell the wiues land by Indenture , and the vendee grant vnto them for the same a yeerely rent , her acceptance of this rent , after her husbands death , doth not barre her of the land , although the acceptance be an agreement to the bargaine , but the bargaine being but a contract , is the bargaine of the husband onely , and not of the wife : if shee make a release , obligation , or such like , it is meerly voide . If both her husband and she baile goods to one , they shall not ioyne in an action of detinue , for it is onely his bailement , and void as vnto her . In an accompt vpon a receit , by the hand of the plantiffes wife , the defendant may wage his law ; hereupon it is that the wife can neuer answer in any action without her husband . And if in an action of trespasse against them , the wife come in by Cepi corpus , and the husband doth not appeare , she must be let at large without any mainprise till her husband doe appeare : but hee appearing , may answer without her , therefore a protection cast by the husband serueth for the wife also , because she cannot answer without him .

Last come the Morall rules .

60. The Law fauoureth right .

When two are in a house , or other tenements , Littlet . 158. and one lay claime by one title , the other by an other title , the Law adiudgeth him in possession that hath the right to haue the tenements .

And therefore

61. Suffereth things against the principles of Law , rather than a man to be without his remedy .

A man that is outlawed may bring an 4. H. 7. 40. action to reuerse it , and outlawry there is no plea.

The Tenant shall haue a repleuin against F. N. B. 69. h. the Lord that did wrongfully distreine , though the Beasts bee come backe to himselfe , because hee can haue no action of trespasse against him .

A man ( after that iudgement is passed against 11. H. 7. 10. him ) shall plead against the King a Charter of pardon , or any such thing done meane betwixt the verdict and the iudgment , because against the King hee can haue no Audita querela . Otherwise it is , against a common person .

Hateth wrong .

So that

62. No man shall take a benefit of his owne wrong .

A man is bound to appeare before the 31. H. 6. bar . 60. Iustices at a certaine day , at which day he is in prison at the parties suit , so as he cannot come , the bond is saued . Otherwise it is if he were in prison for felony , or any other misdemeanor , for that is his owne fault .

An Infants appeale shall not stay till his 27. H. 8. 11. & Br. couert. 2. full age , for the defendant shall not haue aduantage of his owne wrong .

One in execution scapes , and the Gailor 13. H. 7. 1. gets him againe , the party if hee will , may haue him to remaine in execution for him still , for the escape is his owne wrong .

And therefore ,

63. Of it selfe preiudiceth no man .

If a feoffement be made to two ioyntly , one of them cannot deraigne the warranty 48. E. 3. 17. without the other . Yet if a Villeine and another purchase ioyntly , and the Lord of the Villeine enter into a moitie , he may deraigne the warrantie alone , for his moitie : for there the seuerance groweth by act in law .

He that misdemeaneth authoritie , that 12. E. 48. law giueth him ( as if one come into a Tauerne , and will not goe out in seasonable time ; or distreine for rent , and kill the distresse ) Shall be a wrong doer ab initio .

Otherwise it is , if hee misdemeane an authoritie that another giueth him . As if I lend my horse to one to ride to Yorke , & he ride further , yet the riding to Yorke shall not be vnlawfull . Nor a generall action of trespasse lieth not against him vpon an accord vpon the case .

Especially for things that cannot bee imputed to his owne follie .

The Lord Chancellors seruant impleaded at the common law , claimeth priuiledge 35. H. 6. 3. of the Chancerie : and before it be discussed whether he shall haue it or no , the Lord Chancellor dieth ; yet his priuiledge is allowable still , for the act of the Court to aduise of it , shall not preiudice him .

Of rent a man shall haue an eiectment 33. H. 8. Br. of ward before seisin : for the law counteth him in seisin , in as much as he cannot haue it before the day . Otherwise it is of land .

And therefore

64. Driueth not a man to shew that which by intendement he knoweth not .

A man may plead that he was chosen 2. Mar. 128. Knight for the Shire by the greatest number , without shewing the number : for the election may be by voices , or hands , or in other sort ; hard to discerne the certaine number , and yet easie to see who had the greater number . 10. E. 4. 15.

One bound in an obligation to serue I. S. for vij . yeares in omnibus mandatis eius licitis , shall plead that he did serue him lawfully , without shewing what seruice or in what commandment : for no seruant can remember all . 4 E. 6. 46.

A man may auer a thing to be don by couine , without shewing how the couin was : for couine is a secret thing contriued betweene two or three , to the preiudice of another .

Truth .

And therefore

65. It disfauoureth

Fraud and couine .

If a woman that hath good title of Dower , cause I. S. to disseise the tenant of the 18. H. 8. 5. l●●d , and recouereth her dower against I. S. yet this is no good estate of dower in her , for she is priuie to an vnlawfull act , which should be the meanes of her estate .

66. Vncertaine , whereby truth is inueigled .

A man grants all his trees and wood vpon 1. Mar. Dy. 91. Bacre , that may reasonably be spared ; this is a void grant , vnlesse it be referred to ●●hird persons iudgement , what may bee ●●●red .

If two seuerall Writs of one selfe same Manxels case fol. 10. b. thing against one selfe same man , be returned at one selfe same time : both shal abate .

67. Variance .

If the Writ varie from the Obligation , 11. E. 4. 2. ●●other specialty in name , surname , or such like , in an action of debt or annuitie brought vpon it ; or the Court varie from the Writ . As in an action of debt of xx . l. 8. E. 4. 2. b. ●●d declare but a debt of x. l. both shall ●●●te .

An (a) (a) 4. ass. pl. 2. essoyne or (b) (b) 32. H. 6. 3. protection varying from the originall Writ in the quantitie of the Tenancie , or the name of the partie , ( c ) 7. H. 6. 22. shall be quashed : and the Chancellors seruant bringing a Writ of priuiledge varying from the originall Writ ( as if the original be a Writ of Trespasse , and the priuiledge in placito debiti , or the originall an Action of Debt of 44. l. and the Writ of priuiledge in placito debiti of 42. l. ) it shall bee disallowed .

Departure also when one fortifyeth not the matter of his plea that went before , but commeth in with a new matter , is a kinde of variance , & maketh the plea naught . As if the reioinder be a matter puisne vnderneath the matter of his barre , and not aboue , and going before it : As in an action of Trespasse , the defendant pleadeth a discent vnto him of the land , the plaintife saith , that after the discent the defendant infeoffed him : Now if the defendant reioyne , that the feoffement was vpon condition , and he entred for the condition broken ; this is a departure : for the matter of the barre ( that is , the discent ) is before the matter of the reioynder , that is to say , the entrie for the condition broken , whereby the feofme● is auoyded . So if in an assise the defenda● pleadeth the feoffment of I. S. & the plaintife make title to himselfe by discent , an● that he was disseised by I. S. who infeoffe● the defendant : or that he infeoffed I. S. vpon condition , who brake the condition , & afterwards infeoffed the defendant &c. Now if the defendant say , that after the disseisin ( or condition broken ) and after the feoffement of I. S. to the defendant , the plaintife did release to the defendant , or confirme the state of the defendant , this is a departure , for that is a matter that groweth after the feoffement pleaded in barre . But if he plead such a release or confirmation from the plaintife to I. S. that is no departure ; for it is a matter before the feoffement , or in an action of Trespas for goods , if the defendant in title himselfe by the gift of I. S. and the plaintife saith that himselfe was possessed till I. S. tooke them from him and gaue them to the defendant Now the defendant may say , that after the taking , the plaintife gaue them to I. S. who gaue them to the defendant : For although the defendant might haue pleaded these things at the beginning , yet , in asmuch as it is pursuing , and fortifieth his barre , and no puisne matter vnderneath the title of his barre , but eigne , and aboue the matter of ●is barre , therefore it is no departure . So a plea in a barre which is intendible at the Common Law cannot be maintained by a ●atter of custome or by Statute law . As in 〈◊〉 assise the Tenant pleadeth in barre a deuise vnto himselfe of the land , being deui●●ble by the custome : the plaintife saith , ●hat the Deuisor was within age at the ●●me of the deuisee . Now if the Tenant say , That by the Custome there , an infant of fifteene yeares of age may make a deuise ; this is a departure . For the custome pleaded in barre shall be intended of those that may make a deuise by the Common law . So if in an action of Trespasse the defendant plead in barre a lease for fiftie yeares from a house of Religion , & the plaintife auoyde it , by reason it was made within a yeare before the dissolution , and so void by the Statute 31 H. 8. Now if the defendant will alleadge , That by the same Statute it is prouided , that all such Lease● shall be good for xxj . yeares , and so maintaine the Lease to bee good for so many yeares , this is a departure . Or if one plead a Fine , and that being auoided because the parties to the fine had nothing , will maintaine the Fine to be good by the Statute 1. R. 3. because hee that leuied the Fine , was Cesti qui vse .

68. Contrarietie .

An Obligation is made Soluendum nu●quam . 21. E. 4 36. This Soluendum is void , and the thing presently due .

A. is bound to B. Soluendum eidem A● 4. E. 4. 29. This is a good Obligation , and the Solundum void : for the plaintife may declare vpon a Soluendum to himselfe .

In a Trespasse de domo fracta & inuris ei●dem ●1 . H. 7. 21. b. domus fractis . The defendant canno● pleade not guiltie to the breaking of th● house , & iustifie the breaking of the wal● for the house and walls are all one , and hee cannot of the same thing both iustifie and plead not guiltie : for by the iustification , he ●cknowledgeth himselfe guiltie . So one is contrarie to another .

A feoffment in fee is made of two acres , vnto two men habendum one acre to one 2. & 3. P. & M. 153. man , and the other acre to the other man . This is a void habendum : for the premisses giue him an interest through both acres , & the habendum excludeth him from hauing any thing to doe in one .

A lease of a mannor excepting the seruices , the exception is void : for it is parcell of the thing let .

And therefore

69. It will not driue a man to iustifie that he goeth about to defeat .

He that bringeth an assise of the mastership 10. H. 7. 9. of a Chappell against I. S. shall not need to name I. S. the master of the Chappell , because the plaintife is to disproue his interest .

Diligence

And therefore

70. It hateth

Follie , and Negligence .

After a recouerie in a writ of right , if a ●●●anger that hath right , lay not to his 5. E. 3. 222. Her●● . claime within a yeare and a day , he is barred for euer . For vigilantibus & non dormientib ▪ iura subueniunt .

A discent cast during the couerture ( where the wife is disseised ) barreth her not of her Litt. 95. entrie after the husbands death . But if a feme sole be disseised , and then taketh a husband , there a discent during the couerture taketh away her entrie : for it was her follie to take such a husband that entered not in time .

Spéeding of mens Causes .

And therefore

71. It hateth

Delayes .

He that pleadeth a Record in delay , ( a● to proue the plaintif excommunicate ) must 3. H. 6. 15. b. haue it readie to shew . Otherwise it is , if he plead it in barre .

In dilatorie pleas both defendants must ioyne . 12. H. 7. 3.

A plea in barre that is dilatorie , must be good to euerie common entent . 8. H. 7. 9.

72. Vnnecessarie circumstances .

One that is in Court readie to ioyn wit● the defendant , may doe it without Proces ▪ 2. H. 6. 1. b. As the vouchee the plaintifes lessor beein● praied in aid of , when the def. in a repleui● auoweth vpon him , or the mesne when the Lord paramount auoweth vpon him . Bu● ioynder in aid cannot be by Attorny without Processe .

One that is a debtor to the King of Re●ord 1. H. 6. 4. b. in the Exchequer , if he be seene in the Court , may be brought in to answer without Processe .

73. Circuit of Action .

When a father infeoffeth his sonne and Manxels case . fol. 7. b. heire with warrantie , and dieth . Now the son in a praecipe brought against him , may vouch the feoffor of his father : for the Law will not suffer to vouch himselfe , & when he commeth in as vouchee , then to deraign the first Warrantie for the Circuit of voucher .

Vpon the grant of a Ward with warrantie , the defendant in a Writ of Right of Ward , may rebutt the plaintif by that warrantie , and shall not be driuen to bring an Action of Couenant for auoyding circuit of action .

So in an action of wast vpon a Lease for yeares by deede . And in the same deed the lessor granteth to the lessee , that hee shall not be impeached of wast ; the lessee may plead this in an action of wast .

The Law construeth things

With equitie and moderation .

And therefore

74. Restraineth a generall act , if there be any mischiefe or inconuenience in it .

Tenant for life lets to another for life , Litt. 110 ▪ without expressing whose liues , it shall bee taken for the lessors owne life ; for else it were a forfeiture of his estate .

A house that hath Copyholds and other lands vsually occupied with it , is let for yeares , with the lands appertaining ; yet the Copyholds passe not without speciall naming : for then it were a forfeiture of them .

A Corodie granted to one and his seruant to sitte at his Messe , he cannot bring a seruant that hath some filthie or noisome disease .

Estouers granted one of a Mannour , the grantee shall not cut downe fruit trees .

A Common graunted to one for all his beasts , yet he shall not haue Common for Goates , nor Geese , nor other beasts , not Commonable .

A feoffment of all his lands in the town of D with Common in omnibus terris suis , this Common shal be intended in D. only , and not elsewhere .

75 Moderateth the strictnesse of the Law it selfe .

By Abridging , diminishing , and taking away the seueritie of it , and mollifying the hardnesse thereof . A moral vertue as Plowden calleth , and may appeare by Aristotle , who treating of it defineth it , A certaine correction of the Law , wherein it is any way Wanting , because of the generalitie of it .

It is no trespasse for a man to beate his Apprentice , which is reasonable correction .

No more is it to carrie away a mans wife against his will , to a lawfull end . As to sue a diuorce against her husband , or to haue the peace of him before a Iustice of peace .

A great part of the depth and learning of the Law ( if you goe to the primatiue reason of it ) standeth vpon this and that other kind of equitie that went before . Of both which Plowden in that case discourseth at large , and well setteth forth the nature of them , so farre as concerneth the interpretations of Statutes . But they haue a further & more shining vse in the exposition of Common Law it selfe , as in the cases before put .

To the best .

And therefore

76. Euerie act to be lawfull when it standeth indifferent to be lawfull or not .

If the Lessor come vpon the ground , it shall be intended that he came to see if wast were done ,

If the disseisee come , it shal be taken that he meant to be remitted

In an action of Trespasse , two issues are 11 H. 7. 5. ioyned triable in two counties , one in London , an other in Middlesexe only ( without saying which of the issues it should trie ; ) this shall be taken to trie the issue in Mid. onely : for so the venire facias is lawfull , & not in both counties ; which is against law . And therefore it is a discontinuance of the issue in London , & not a miscontinuance .

CHAP. 4.

Of Law Constructions that are naturall .

THVS farre of Rules drawne from other sciences . There follow those that are proper to our selues : which we call Law-constructions . And are naturall or fained .

Of the first sort wee haue two notable grounds .

Law construeth things , Reasonably .

And therefore

77. With a reasonable intent .

A feoffement by deed of a Mannor , with auowson appendant , and no liuerie made , the auowson passeth not : yet they may passe without liuery , but the meaning was , the mannor and it should passe together .

A bargaine and sale of land , and a reuersion by deede not inrolled , the reuersion passeth not no more than the land , though the deed without inrolment may passe the reuersion : but it was meant they should passe together .

One reciting by his deed , that where by ●1 . H 7. 5. prescription he hath vsed to finde a Chaplein , because some controuersie hath grown of it , graunteth by the same deed to doe it : this determineth not the prescription , for the intent of the deed ( reciting the prescription ) was to confirme it , and not to make a new grant .

78. According to the effect .

A deed deliuered by an infant , cannot be 1 H. 6 4. deliuered again at his full age : for it tooke some effect before , and was but voydable .

But a deede deliuered by a feme Couert , or a release deliuered to one that hath nothing in the land , may bee deliuered againe ( viz. ) when shee commeth to be sole , or the partie to haue somewhat in the Land : for the first deliuery was meerely void , & took no effect at all .

So that

79. Hee that cannot haue the effect of a thing , shall not haue the thing it selfe .

The King shall not be receiued vpon default 4 E●●z 241. of Tenant for life , because the demand cannot haue the effect of the receit . viz. to count against him : which none can doe against the King , but sue to him by petition .

Two Abbots cannot bee Ioyntenants : Litt. for they cannot haue the effect of it , which is suruiuorship .

80. To the most validitie .

Tenant in taile makes a lease for life , this shall be intended the Lessees life . Litt. 140. b.

An annuitie granted pro consilio impendendo , or a feoffement ad erudiendum filium , or ad soluendum x. s. is a condition , without words conditionall , because else the partie hath no remedie .

And therefore

81. When many ioyne in an act , it maketh it his act that may doe it .

A vse limitted to begin when ones eldest 2. & 3. El. Dy. 191. sonne is married by I. S. the sonne ( beeing in ward to the King ) is married by the king and I. S. yet no vse riseth , for it is the sole marriage of the King .

A patron of a Church suffereth an vsurpation by sixe monethes , and then grants an annuitie to I. S. till he doe promote him to a benefice After , he & the vsurper ioin in a presentment of I. S. yet the annuity is not determined .

The disseisee and the heire of the disseisor , Litt●let . in by discent make a feoffment by one deede , and Liuerie ; this is the feoffement of the heire onely , and confirmation of the disseisee .

82. When two titles concurre , the best is preferrred .

One is disseised , and the disseisor lets the Littl. land to the disseisee for terme of yeares , or at will : now if he enter , the Law shall say , he is in of his ancient and best title .

83. Things to bee done by him that hath most skill to doe them .

An Obligation vpon condition , that a 9. E. 4. ● . Bell shall be brought by the Obligee , to the Obligors house ( being a Brasier ) and there weighed and put in fire : and then the Obligor to make a Tennor of it , tunable with other bells .

The Obligor must weigh it , & put it in fire ( not being expressed who shall do it ) for it belongs to his office , & therefore he hath most skill to doe it .

So vpon condition that the Obligee shal bring to the Obligors shop ( being a tailor ) three yards of cloth which shall be shapen , and the Obligor to make the Obligee a gowne of it : the Obligor must shape it .

A marchant agreeth with the Kings collectors , 4. E. 6. 15. that his marchandise shal be weighed at the Kings beame , and the King shall haue his subsidie as it riseth : the Collector must weighe it .

Issues ioined must be tried by them that haue most skill . ( videlicet . ) An issue vpon 4. El. 230 ▪ b. the law , by the Iustices learned in the law .

Attendance vpon the King ( Scotland ) in L●●tl●● 21. warre xl . dayes ( as tenant by escuage must ) by certificate of the kings Marshall .

Disseisin of an office in the Common-place , 11. E. 4 3. 6. or rasing of a Record there , by the Filizers and Attournies , attendant in that Court .

84. Void things good to some purpose .

Lessee for twentie yeares takes a Lease 1. & 2. P. & M. 107. for x. yeares ( to begin presently ) vpon condition if such a thing be not done , to bee void , though the second lease bee void vpon the condition broken , yet the surrender remaineth good .

A feoffement vpon condition to be void , 10. H. 7. 22. as if it had neuer beene , yet the feoffee shall haue an action of trespas ( after the feoffors entry for the condition broken ) for a trespas done by the Feoffor before .

85. One thing to enure as another .

The King grants to a Towne easdem libertates 21. H. 7. 13. quas London habet , it shall be entended the like . The Lessor enfeoffeth his Lessee for life , by dedi & concessi , this shall enure as a confirmation .

One grants the third presentment to an 15. H. 7. 7. aduouson , and dieth : his heire shall present twice , and his wife shall haue the third for her dower , and so the grantee shall haue but the fourth .

The King pardoneth one the making of a Bridge ; this is onely good for the fine : 37. H. 6. 4. but yet hee must make the Bridge , because the Kings subiects haue interest in it .

86. In one thing , all things pursuant to be included .

One makes a lease , excepting a close , 14. H. 8. 1. wood , &c. now the Law giueth him a way to come to it .

Where the King is to haue mines , the 10. E. 317. Law giueth him power to dig in the Land .

Vpon a grant of Trees , the Grantee may 2. R. 2. barr . 337. come vpon the Land to cut them downe , & with his Cariage to carry them through the land . And the vendee of all ones fishes in his pond , may iustifie the comming vpon the bankes to fish , but not the digging of a trench to let out the water to take the fish , for he may take them by nets , and other deuises . But if there were no other meanes to take them , hee might digge a trench .

87. Strongest against him that doth them .

Two Tenants in common grant a rent 2. & 3. P. & M. 140. b. & 161. b. of twenty shillings , the grantee shall haue forty shillings . But if they reserue twenty shillings vpon a lease , they shall haue onely one twenty shillings .

One bound to pay I. S. twenty pound , 2. M. 104. cetra festum natalis domini , it is no plea to say he hath paid it , but he must shew when , else it shall bee taken hee paid it after the feast .

And therefore

88. A man shall not qualifie his owne act .

The obligee releaseth his debt till Michaelmasse , 21 H. 7. 23. b. the debt is gone for euer .

A reuersion of three acres of land is 18. E. 3. Var. 53. granted , the tenant atturnes for one , it is a good atturnment for all .

A parson makes a lease for xl . yeares , the 17. El. Dy. 339. patron and Ordinarie confirme it for xx . This is a good confirmation for the whole xl . yeares .

The construction which otherwise law would make , is altered by the parties .

89. Speciall agreement .

Lessee for yeares is excused for wast , if the houses bee blowne downe by sudden 40. E. 3 5. storme or tempest . But in that case if he couenant to keepe reparations , an action of Couenant lieth against him .

Two Ioyntenants exchange an acre of land with another , they should hold the Park 55. f. & ●6 ▪ g. land taken in exchange ioyntly . But if they exchange to haue that acre in common between them , they shall be Tenants in common .

●● . Speciall words .

A lease reseruing a rent , the heire of the 27. H. 8. 19. ●●ssor , after his death , shall haue the rent : otherwise , if the lease be reseruing to the lessor .

A feoffement in fee to one and his heires 30. H. 8. Dy. 42. b. with warrantie to the feoffee . This warrantie goeth not to the heire .

91. Surplusage of words .

The Ordinarie may refuse him generally , 9. E. 4. 28. b. Lit. that demands his clergie without shewing cause . But if he shew cause which our law alloweth not ( as because hee hath not his ●●●sure or ornamentum Clericale &c. ) he shall pay a fine , and yet be driuen to take the Felon .

In a valore maritagij , & count of a tender 9. El. Dy. 255. ● . of mariage to the def. The tender is trauersable , if it were not before .

An information vpon a statute made 6. E. 6. 84. such a day , & the day mistaken , is naught , though he needed not to haue recited the day .

In an action of Debt by I. S. Parson of ●● . no such towne as D. is a good plea : yet ●e needed not to haue named himself parson of D.

A writ of forging diuersa facta & muni●enta and count but of one , the Writ shall ●●ate : yet he needed not to haue said in his Writ , but onely factum .

CHAP. 5.

Of Fictions in Law .

A fained construction , which we ca●● a fiction in law , is when in a similitudinarie sort , the law construeth a thing otherwise than it is in truth . And is of the person , thing ▪ Action , and the circumstances there of ti●● and place .

Of the Person .

92. Things don by another , are as if they were done by ones selfe .

A promise to ones wife in consideration of a thing to be performed by the husband : 27. H. 8 24. if the husband vpon his comming home , agree and performe the consideration ; hee may plead this promise to be made to himselfe .

If my seruant sel my goods , and I agree , I shall haue an Action of Debt , supposing he bought of me .

A lease for yeares is made , and a letter o● Attornie to deliuer possession to the lessee : 25. El. Earle of Leic. c. if the Attorny deliuer possession to the Attornie of the Lessee : it is a good possession and pursuing to his authoritie .

Of the thing wee haue these two rules .

93. A thing that commeth in lieu of another , to be as if it were the same .

One shall recouer in value against the heire ( vpon the ancestors warrantie ) lands 18. H. 3. r●c . va . 26. which the heire took in exchange for lands descended .

A mannor is giuen by fine , a Scire facias 48. E. 3. 11. lieth of a Tenancie that afterwards escheated .

If a mannor discend to an heire within 6. H. 4 1. age , and after a tenancie escheateth , he shal haue his age of it in a Precipe of the manor ; it shall bee assets by discent , and hee may vouch of this Tenancie by reason of a warrantie made of the mannor ; for the tenancie commeth in lieu of the seruices .

94. A thing to be all one with that wherevnto it doth amount .

The maxime of a bastard eigne , is that 14. H. 4. 9. the mulier puisne must make an entrie vpon him , or else he gaineth the right : yet a continuall claime made by the mulier puisne destroyeth his right : for it amounteth to an ●ntrie .

A Lease for a thousand dayes , is a Lease 14. H. 8. 13. for yeares .

A lease for yeares and a release amounteth Brook . to a feoffement .

If a man licence one to occupie his land 5. H. 7. 1. for a yeare . This is a lease for a yeare .

And therefore

95. A thing that should not be done , to bee as if it were not done .

One grants a rent charge , without saying 18 El. Dy , 362. pro se & heredibus , and dieth . The grantee brings a writ of Annuitie against the heire , and hath iudgment to recouer : yet he may distrein afterwards : for the heire was neuer chargeable . So that vpon the matter , it makes no election .

A man makes a lease for yeres of a house , 20. El. Dy. 362. with certaine implements , reseruing a rent , the Executors after the Testators death , receiue the Rent , yet it is no assets in their hands : for the whole rent belongeth to the heire .

96. So of a thing done in a time that it should not .

A man seised in fee , le ts for ten yeres , & 1. E 6. Br●●c . 18. after selleth the land , and taketh it back to him and his wife , & then the husband and wife let it for twenty yeres , reseruing a rent : the husband dieth , the wife accepts this rent during the first ten yeares . By this the second lease is not affirmed , for the acceptance of a rent before the lease beginneth , and so before any rent be due , is no acceptance at all .

A matter pleaded or disclosed out of time and course , is as if it were not pleaded at 21. El. 563. all . As if one bring an action of debt vpon an obligation , & count that the defendant was of full age at the time , the defendant shall not trauers this ; but onely say he was within age , and the trauerse must come of the plaintifes part .

To the circumstance of time , these two rules pertaine .

Prioritie of time is imagined in things .

97. Done together .

One deuiseth a terme for yeres to his son , 21. El. 540. and that the wife shall haue it during the sonnes minoritie . This is first a deuise to his wife , and after to the sonne when he commeth of full age .

One grants his reuersion of lands , & by the same deed granteth a rent out of these lands to another , and deliuereth the deede to both at one selfe same time . Yet it shall inure first as a grant of the rent to the onc , and then as a grant of the reuersion to the other .

98. Happening in an instant .

A mesualtie discends to the Tenant of the land , though the mesualtie be at the same 11. H. 7. 12. instant extinct , yet the tenant shall pay reliefe if he be of full age , or be in ward if he be within age ( viz. ) where it is holden by knights seruice .

Land is giuen to A. for the life of B. the 7. H 4 6. remainder to the right heires of B. A. dieth , the remainder takes effect before any occupant .

A man exchangeth land for a rent charge out of the same land . This is good enough 9. E. 4 21. though they be in an instant ( whereby the rent should be drowned in the land ) for the law accounteth the exchange of the land to be first perfected .

99. Things relating to a time long before , be as if they were done immediatly from that time .

When the wife is indowed by the heire Lit 92. of her husbands lands , she shall be saide to be in immediately from the husband . And therefore if the husband were a disseisor , & the heire in by discent , yet the disseisee may enter vpon the wife .

Goods taken out of the possession of an 36. H. 6. 7. executor who refuseth , and administration is committed to I. S. I. S. may haue an action of Trespasse , supposing they were taken out of his possession : for he shall be said an Administrator from the verie time of the death of the intestate .

These rules of common reason do many times crosse & incounter one another , which is the greatest difficulty that we find in the arguing of our cases . But to helpe this , the generall ground is according to the former rule ( 〈…〉 ) that

100. Those preuaile that carrie the more excellent and perfect reason with them .

Tenant for life makes a lease for life without naming whose life , this shall be intended Lit. 110. b. for his owne life ( Rule 74. ) for else it were a wrong But if tenant in taile make Lit. 140. b. such a lease for life , this is a discontinuance , and for life of the grantee ( Rule 86. ) for it for it is strongest against the grantor , and most beneficiall for the grantee .

Things executed where the husband is 32. H. 8. Br. der. 18. seised in the right of his wife , shall not bee auoided by diuorce : as wast committed , receit of rent , wards , or presentments that haue fallen gifts made of the wiues goods , &c. Rule 39. But otherwise it is in matters of inheritance , as if the husband discontue and charge the wiues lands , release or manumise villeines &c. Rule 30.

A feoffement is made with warrantie , 28. E. 3. 20 b. Br. gar. 27. the feoffee dieth hauing issue two daughters , who make partition of the land . This warrantie shal be diuided notwithstanding the partition which is their owne act , and therefore not so much fauoured Rule 46. For the land commeth to them originally by act in law , that is by discent , Rule 5.

If the Chancellor die before his seruants 35. H. 6. 3. priuiledge discussed in banke , yet it shal be allowed , notwithstanding the cause of his priuiledge now be gon . ( contrarie to Rule 3. ) But the reason is , for that once he had cause : and the act of a third person ( that is to say the Court ) shall not preiudice him where no follie was in himselfe . Rule 63.

The husband possessed of a terme in the 9. El. Dy. 264. b. right of his wife , maketh a lease of parcell , rendering a Rent , the wife shall haue the residue of the terme , but not the rent , Rule 9. notwithstanding it come in lieu of the land , Rule 93. and be as it were an accessarie vnto it , Rule 25.

Things may be done in the night time , notwithstanding , rule 49. where there is a kind of necessitie of doing them , then , Rule 44. as arbitrement made and deliuered in writing , the last day after the Sunne set , is good enough : for iudgements and arbitrements require long aduice .

So may goods be distreyned in the night 11. H. 7. 5. time for damage feasant .

If one of the Chapter infeoffe Deane & Pank . 41. Chapter , by that he himselfe shall take by his owne liuerie , Rule 18. notwithstanding Rule 20.

A man may doe an act to himselfe , notwithstanding 13. H. ● . 15. Rule 20. where the law cannot doe otherwise , Rule 18. as a fem tenant in socage may indow her selfe , an executor pay himselfe , &c. Counts and declarations must be certain , Rule 66. yet things which containe a necessarie implication are good enough , Rule 94. As in an eiectione firme , & 14. El Dy. 347. count of a lease made by tenant for life , it sufficeth to say , that the lessor is yet seised , without alledging his life expresly . In an information vpon the Statute of vsurie , and count that the defendant tooke per viam , & medium corrupte mutationis , where it should bee accomodationis , yet it is good enough .

Corporall seruice as suite of Court &c. 7. H. 4. 9. cannot be done by another , Rule 14. notwithstanding Rule 92.

Matters of trust or authoritie , &c. cannot be granted ouer : because being strictly taken , they are esteemed to belong to the person , and therfore guided by Rule 15. Yet an office of skill and diligence to one and his heires , may be granted ouer . So vpon 12. El. 379. b. a letter of Attorny to deliuer seisin to A. he may deliuer it to the Attornie of A. for that vpon the matter is a possession deliuered to himselfe , Rule 21.

Tenant in taile makes a feoffement with 25. El. Earle of Leic. case . warrantie , and leaueth to discend a reuersion in fee simple expectant vpon an estate taile , which I. S. hath ; this is no assets , for it may be tolled by a common recouerie ( & therfore the law esteemeth it as if it were so ) But it seemeth otherwise of a reuersion depending vpon an estate taile of land which the issue himselfe hath , for it were the follie of the issue in taile to cut it off , Rule 70.

CHAP. 6.

Of Lawes Possitiue .

A And so much of Lawes Natiue .

The Law of nature and of reason , or the Law of reason primarie and secundarie , with the rules framed and collected thereupon Which three are as the Sunne and the Moone and the seuen Starres , to giue light to al the possitue laws of the world .

Possitiue are laws framed by their light , & from thence come the grounds & maximes of all Common Law : for that which we call common law , is not a word new & strange , or barbarous , and proper to our selues , and the law that that we professe , as some vnlearnedly would haue it , but the right terme for all other lawes . So Euripides mencioneth 〈…〉 the Common Lawes of Greece : and Plato doth define it , speaking of 〈…〉 the reasoning facultie , 〈…〉 saith he 〈…〉 which being taken vp by the common consent of a Countrie , is called Law . And anon he nameth it 〈…〉 the golden and sacred rule of reason , which we call Common Law . The place is verie notable : it openeth the originall and first beginning of the Common law , it sheweth the antiquitie of the name , in effect all one with that which since and by a later name is called Ius Ciuile ( quod quisque populus ipse sibi ius constituit , as Iustinian speaketh ) it teacheth Common Law to be nothing els but common reason : but what reason ? not that which euerie one doth frame vnto himselfe : but refined reason . Quae cum adoleuit atque perfecta est nominatur rite sapientia as Tully saith , and as Plato there hath it , when it commeth to be 〈…〉 opinio or decretum . How ? 〈…〉 generally receiued by the consent of all .

Therefore Lawes positiue , which are directly contrarie to the former , loose their force , and are no lawes at all .

As those which are contrarie to the Law of nature . Such was that of the Egyptians , to turne women to marchandise , and common-wealth affaires , & men to keep within dores . And of the Thracians , which accounted idlenesse an honest thing , and stealing verie commendable . So if it were made a law , that men might commit adulterie , forge false deeds , &c. And this is manifest vnto all men . But because the law of reason is knowne onely to such as are able to iudge aright , and that but imperfectly ( as before was shewed ) therefore here the case is harder , what lawes may be said agreeable and what repugnant thereunto . Onely in general ( which is sufficient for this place and purpose ) it is truly said , & all men must agree , that lawes in deed repugnant to the law of reason , are aswell void , as those that crosse the law of nature .

Positiue lawes are sundrie and diuers , according to the seuerall and oiuers constitutions of particular places and Countries .

Such among the Iewes were their Politicals , deliuered by Moses , which so farre as they bee possitiue , binde vs not vnto them . Such were the antient law of the Grecians , the xij tables , & ciuil lawes of the Romans , and Such are the Common Lawes of England . And almost so many people so many Lawes . And as those lawes are diuers one from another , so one and the self same laws may be altered and changed in themselues . So long as no alteration is permitted against the two maine Lawes , of Nature , and Reason .

The second booke of LAW.
CHAP. 1.

Of the Common Law of England , whereof the parts of the Realme , and of the persons in it . Of Custome , and Prerogatiue .

THE Common law of England is a Law vsed time out of mind , or by prescription throughout the Realme . Lit. 38. That prescription is a vsage time out of mind . For to plead that there is a custome among merchants throughout the Realm , to assigne licences ouer , is not good , in asmuch as that which is currant throughout the Realme , is Common Law , not Custome . And vnder the name of the Realme of England , it is plaine that (a) (a) 8. R. 2. cont. claim . 13. Scotland and Wales (b) (b) 2. Mar. 29. much lesse (c) (c) 20. H 68. A fine with ꝓclamations according to 4 H. 7. shall not barre one in Ireland . Ireland , are not included . Neither is the maine sea , that is to say , beneath the low water mark , parcell of the Realme : for there the Admiralls iurisdiction ( which hath nothing to doe of things within the Realme ) doth only meddle and not the Common Law . But betweene ( d ) 22. ass pl. 93. The statute 1. R. 2. cap. 5. prooueth the Common Law to be so . the high water marke and the low water marke , where by ordinarie and naturall course the sea ebbes & flowes : the common Law & the Admiraltie haue diuisum ( e ) Sir Henry Constables Coo. 107. imperium , one vpon the water when it is ful Sea , the other vpon the land when it is an ebbe .

Statutes 27. H. 8. cap. 26. Incorporateth Wales into England .

The whole Realme is diuided into seuerall ( a ) 12 H. 7. 18. Fineux . Counties or shires , And those again into certaine villes or Townes : in many ( b ) Litt. consuetudo ex rationabili causa vsitata priuat Communem legem . of which as also in diuers mannors wherof it commeth to speake afterwards .

There be speciall vsuages time out of mind , altering the common law which we ( c ) Lit. 46. & 58. call Customes . ( d ) 8. H 3. prescip . 60.

As in Kent , the custom of Gauelkind for all the heires males to inherit alike , and the wife not to lose her dower , nor the heire his Land , though the husband or ancestor 5. E. 4. 30. be hanged for felonie .

In London , if the debtor be fugitiue , that the creditor before the day of paiment may arrest him to find better suertie . In many Boroughes the youngest sonne to inherite Lit. 37. all . The wife to haue for her dower al her husbands lands : the lands there to be deuisible by will .

A Countie is a part of the Realme , entirely gouerned by one Sheriffe vnder the King , but all subiect to the generall gouernment of the Realme . And therefore euery Countie is as it were , an entire body of it selfe , so that vpon a feoffement of lands in many townes in one Countie , liuerie of seisin made in one parcell , in any one of the Townes in the name of all , sufficeth for all the lands in all the other Townes within the same Countie . But vpon a feoffement of lands in diuers Counties , there must be liuery of seisin in euery Countie .

Also an exchange of lands in one and Lit. 13. the same Countie is good by parroll : but in diuers it must bee by deede indented .

A man is driuen to take notice of manie things done in the same County , where he is , but not in another . As if an action of debt be brought against an Executor , he 2. H. 4. 11. may pay the assets which hee hath in his hands to anie other to whom the Testator stood indebted , till notice of the action brought against him , if the suit be in an other Countie , but not if it bee in the same Countie , for there hee must take notice of the action at his perill .

An Enquest also shall not take notice of things done in another Countie ; but because all are vnder one generall gouernment , therefore things done in seuerall shires shall be tried by a ioynder of Counties , the Iury that tryeth the principall may take notice of a thing accessary , though it bee in another Shire . As in an action of trespasse , if the defendant plead 21. H. 6 51. an arbitrement in a forraine County , and issue bee taken vpon it , and found for the plantiffe : the Iury there must accesse damages 9. E. 4. 40. for the trespasse done in the other Countie .

Likewise in an action of debt against an Executor , who pleadeth , ne vnque administ . and giueth in euidence , a deed of gift made vnto him by the Testator in his life time in another Countie , the Iurie must finde it vpon paine of attaint . So of a release pleaded to be made in another Countie in a writ of right .

There be in all thirtie nine Shires , Kent , Sussex , Surrey , &c.

A Towne is a precinct , anciently conteining ten families , whereupon in some Countries they are called Tythings , within 18. H. 6. 13. one of which Tythings euery man must bee dwelling , and finde fuerties for his good behauiour , else he that taketh him into his house is to bee amerced in the Leet .

Diuers of these Townes haue Hamlets in them , some speciall places there bee in euery County , out of any Towne or Hamlet .

The persons within the Realme are to be considered either as one entire body , or as particular persons .

As one entier Bodie , it consisteth of the King , and common persons his subiects .

The King is the head of the Common-wealth , immediate vnder 1. H. 7. 10. God .

And therefore carrying Gods stampe and marke among men , and being , as one may say , a God vpon earth , as God is a King in Heauen : hath a shadow of the excellencies that are in God , in a similitudinarie sort giuen him : Gods excellencies and honor standeth partly in things incommunicable vnto other , partly in such as after a sort hee maketh his creatures partakers of both : which the King is said to haue some in truth , other by fiction , all by similitude from the diuine perfection .

The first thing in God , and most proper to his sacred Maiestie , is , the infinitenes of his nature ; who , as the philosopher elegantly saith , onely is that Circle , Cuius Centrum est vbique peripheria nusquam . So say our bookes , that the king in a manner is euerie where , and present in all his Courts .

In a writ of Error vpon a false Iudgment giuen for the King , no Scire facias shall go F. N. B. 21. b. forth ad audiendum errores , for the King is alwa●es present in court , & that is the cause that the forme of entrie in all suites for the King is Henricus Hobart miles , Attornatus domini Regis generalis qui pro domino Rege sequit' ven' hic in Cur. &c. and doth not say Dominus Rex per Henricum Hobart Attornatum 25. H. 8. Br. non-suite 68. 3. El. 231. suum , &c. And therefore it is also , that the King cannot bee non suite , that all acts of Parliament which concerne the king or generall , and the Court must take notice without pleading of them , for he is in all , and all haue their part in him .

A second thing proper vnto God , is the diuine perfection . In the King no imperfect thing can be thought , no (a) (a) 35. H. 6. 26. negligence , or laches , no follie , no infamie , no staine , or corruption of bloud . So as (b) (b) 3. Eliz. 213. nonage auoideth not his grant , though it bee of Lands which he hath in his naturall capacitie .

By (c) (c) 1. H. 7. 4. his taking of the Imperiall crowne vpon him , all attainder of his person are purged ipso facto .

The excellencies which God bestoweth vpon his creatures ( for I wil touch no more but those that the bookes of our Law doe speake of , and such as are leading rules to the cases that you shal find there argued & debated ) are first , Maiestie , Soueraignitie , Power , Perpetuitie , & then that noble complement of Iustice , and truth .

The law saith Bracton giues vnto the King Dominationem & potestatem . Bract. lib. 1. cap. 8.

He hath absolute power ouer all : for by a clause of non obstante he may dispence with 2. H. 7. grants 33. a Statute Law , and that ( if he recite the statute ) though the statute say , such dispensations shall be meerely void .

The King cannot take , hee cannot part from any thing but by matter of Record . Bract. ibid. And that is for the Maiestie of his person . ( a ) Stam ▪ prae 73. His supreame soueraignetie makes him immediate ( b ) 7 E 4 ▪ 17. vnder God . Omnis quidem sub eo & ( c ) 50 Ass. pl. 1. 18. Eliz 498. ipse sub nullo nisi tantum sub Deo , saith Bract. It makes all lands to be holden of him , euerie surrender vnto him to be good ; no action to lie against him ; for who shall command the king .

Nay , acts of Parliament do not bind him , 4. E. 4. 21. 1 El. 223. & 240 3. Eliz. 239. vnlesse they concern the Commonwealth , or he be specially named . Neither can the King be a Iointenant with any , though it be of land , or other things that he hath in his bodie naturall : for none can bee equall with him . And therefore if two purchase land to them and their heires , and one bee made King , they are now no more Iointenants , but tenants in Common . Lastly for perpetuitie , the King neuer dieth , but in 4. El. 234. law it is saide the demise of the King , and a gist vnto the King , without saying more , trencheth to his successors .

To come to the other two , the power of 4. Mar. 177. Potentia iniuriae est impotencia naturae . God is alwais ioined with Iustice & truth : for to doe wrong , to deale vntruly , is not omnipotencie , but a thing of weaknesse & impotencie So it is with the King , he cannot be a (a) (a) 4. E. 4 25. disseisor , he can be no wrong-doer : for he is all Iustice , he shall neuer be (b) (b) F. N. B. 143 b. estopped . Iudgement finall in a Writ ( c ) 20. E 3. Dr. 15 F. N. B. 31. D. of right , doth not conclude him , for hee is all truth , Veritas & Iusticia saith Bracton , Circa solium eius . They are the two supporters that doe vphold his Crowne .

Therefore also hee hath a prerogatiue in all things that are not iniurious to the subiect . As hee may create Corporations , Deane and Chapter , Maior and Cominaltie , &c. make Denisens : and it remaineth good , thogh he be declared an vsurper after ( but no continuance in England can make a Denisen , though it bee from his childhood , and he sworne to the King in Leets ) he may reserue rent vnto a stranger , grant a condition or thing in action , giue in fee simple , vpon condition not to alien , except out of his grant , things incident as Courts and perquisits of Courts vpon the grant of a mannor , sue in what court he will : as to haue a Quare impedit or Writ of Escheate , retornable in the Kings Bench , or a Quare incumbrauit there , though the record of the Recouerie be in the common place . He may alledge in his Court or plea , double matter , or as many matters as he will ( and the partie must answere to them all , and then the King shall take issue vpon any one at his pleasure . He may waiue his issue , and demurre in Law , and contrariwise , so it be the same terme , but not in another terme , for so he might do it infinitely . He may challenge a juror without shewing cause , or the array , because the Sherife that made it , was cosine to the partie . But no challenge shall be of a Iuror against him He is not bound to make a demand ( or tender ) where a lease is made , reseruing a rent with a clause of re-entrie : hath the ꝓpertie of all goods that are in nullius bonis , shall haue the Tithes of Forrests and places out of any parish , take aduantage of other mens places , as to haue a Writ to the Bishop , if title appeare for him , though he be a stranger to the Action , all the daughters and heires ( where the ancestor held in chiefe ) must doe homage to him : where ( if they hold of a common person ) the eldest onely must do it where he is to haue a benefit , a man may plead more pleas than once , pur darreine continuance , as outlawrie in an action of debt , &c. And many prerogatiues more he hath , which in their seueral places shal come more properly to be considered .

But in them all it must bee remembred , 12. H. 7 19. That the Kings prerogatiue stretcheth not to the doing of any wrong : for it groweth wholly from the reason of of the Common Law , & is as it were a finger of that hand , although so much differing in fashion ( as the head and the bodie can neuer be of one proportion ) that if you set them in paralels together , you shall find it to be law almost in euerie case of the King , that is law in no case of a subiect . And yet for all th●● , they are not two but one law . Onely the Common Law is as the primum mobile which drawes all the Plannets in their contrarie course .

In regard of the King , the Queene his wife is participant of diuers prerogatiues aboue other women .

As in an Act of Parliament making all 3. El. 231. guifts and grants vnto her , or by her ( whether betweene the king & her , or betweene her and any other person ) to be of the same effect , as if it were between other subiects , without any benefit thereby to come vnto the king , need not be pleaded , but the court and all the Realme must take knowledge of it , because shee is a publique person , in whom all the subiects of the Realme haue interest , being the Kings wife , as they haue in the King himselfe . Likewise shee may haue in her selfe the possession of personall things during her life , so as shee may (a) (a) 49. ass. pl. 8. haue an Action in her owne name alone , take lands and other possessions from the king by Charter : (b) (b) 3. H. 7. 14. make leases , feofments &c. which shall bee good during her life , but afterward the king shal haue them ▪ And diuers other prerogatiues shee hath , which follow in their place .

His Subiects are the members of the Common-wealth , and are Barons and Commons .

Barons wee call the Péeres of the Realme . For euerie Duke and Earle is Peere of the Realme , because hee hath a Baronie belonging vnto him . Otherwise Duke and Earle are but names (a) (a) 14 H. 4. 7. of dignitie and of honour only , and (b) (b) 21. E. 4 84. 8. H. 6. 10. parcell of ones name . So as in euerie Action which he bringeth , or is brought against him , he must bee named Earle or Duke , as he is , else the writ shall abate . But the name of Baron is the 32 H 6. 29. name of ones place and calling , which shal not be expressed in any writ . And where addition is necessarie , as by the Statute of 1. H. 5. yet he shall neuer be impleaded by the name of baron , for it is not any dignitie , but must be named knight if he be one , or Esquier if hee bee no Knight . And touching Bishops , who inioy the name of Stamp . prer. 154. 7. H. 8 Cr. 184. Hunnes case by all the Iustices of England . Lords of the Parliament , they haue the same in respect of antient baronies annexed to their dignitie .

All the rest are Commons .

The particular persons are natural persons , or bodies politique .

The naturall person is euerie man .

A bodie politique is a bodie in fiction of 14. H. 8. 3. Fineux . Law , that indureth in perpetuall succession And such is the King alone , and by himselfe considered : and a Parson . The law calleth him the Rector of a Church , for the King hath two capacities , a bodie naturall 4. El. 234. ( wherein he may inherite from any of his ancestors , or purchase to him and his heirs , and retaine the same , notwithstanding hee be remooued from his estate Royall ) and a bodie politique , wherein he may purchase to him and his heires Kings of England , or to him and his successors . So a Parson is a 4 E 3 17. Br. Deane , &c. 2. 14. H. ● . 30. Corporation by the Common Law , and hath two capacities , one to take to him and his heires , & the other to him and his successors . And therin he is seised ●● iura Ecclesiae .

And if I. S. be Parson of D. and land be giuen to I. S. Parson , and his successors , and ibid. to I. S. Clerke , and his heires ; he is a tenant in Common with himselfe .

The parson in regard of his continuall attendance vpon that sacred function , is ( a ) F. N. B. 175. freed from all personall charges that may hinder him in his calling . For such a one shall not be chosen Bailife , Bedle , Reeue , or other such Officer ; nor bee compelled to come to the (b) (b) Marl cap. 10. Sherifes turne , to the (c) (c) F N. B. 160. c. Leets of the King or other Lords , for land annexed to their Churches . And all this by ( d ) Marl cap 10. doth so recite it . the course of the Common Law .

So is euerie other clark within orders .

To the Parson belongeth of Common F. N B. 175. Br. Dism ●6 . right ( as our bookes say ) the tenth of all manner of yearely increase , which we call Dismes , or Tithes . And therfore by a lease 15. H. 7. 8. of Rectoria , the Lessee shall haue the dismes and offerings of the same Church ; for they are incident vnto it .

And if a Parson demise his glebe to a Lay man , he shall pay Tithes , because they are 32. H. 8. Br. ●●s. 17. of common right .

Euerie Parson before he can be incumbent , must be presented to the Ordinarie , who is to admit him . And therefore is allowed time to inquire of the clerks habilitie . 14 H. 7 21. As if he be presented to the bishop when he is readie to ride , who willeth him to come to him within three dayes to be examined : if he come not then , nor within six moneths after , the Bishop may collate by laps : for there be many things to dishable him from hauing the benefice . As if he be criminous , insufficient , a villeine , haue not his letters of Order , &c. And if a meere Lay-man 12. & 13. El. Dier 292. be presented , admitted , and instituted , and no sentence of depriuation or nullitie giuen , the Ordinary cannot collate by laps : for till that time , the church is full to all intents , when the Ordinarie admitteth him to be able , that is called an admission , when he admitteth him to the charge , as to say to the Clerke Instituo te habere Curam animarum , that is , institution .

And then the Archdeacon is to put him in possession , by deliuering the ring of the church dore vnto him , and ringing of bells , which is called an induction , and that beeing done , the partie becommeth an incumbent . 20. El. 528. Before which induction there is no possession or free-hold in him , of glebe , or house , or dismes . So as a rent granted by a Prebendarie , after admission and institution , and before induction , with confirmation of the Ordinarie before induction , and of Deane & Chapter , the day of induction is void .

The Incumbent hath not the meere right in him of Land in the right of his Church . But the fee simple is in abayance , Lit. 143. 6. E. 6. Dy. 69. that is to say , onely in the remembrance , intendment , & consideration of law ; Therefore he cannot discontinue , and euerie Act which he doth with such land , may be auoided , when he ceaseth to be incumbent , except such as are done by consent of patron Lit. 143. 12. H. 8. 7. and ordinarie , which bind for euer .

If the Church bee voide sixe moneths , 3. E. 4. 3. without presenting , which is called a laps , the Ordinarie himself may collate , that is , a Clark appoint of his own : & if tt be voyd Doct. & Stud. per Br plen . 15. sixe moneths after his time , then the Metropolitane , and sixe moneths after his time , the King may present . All this is to be vnderstood , If the Patron present not before them . But so long as the Church is void , though it be two yeares after , the patron Doct. & S● ibid. may present , & the Ordinarie or Metropolitane are bound to admit him . Quere whether it be so where the King is intituled to present by laps .

When one Church is not able to finde 40. E. 3. 28. Fi●● . 50. E 3. 27. B●lnap . the Cure , the ordinary by consent of the Patrons may vnite it , or make a consolidation of it to some other . And it seemeth that in this case , the consent of the King is not requisit , because here is no preiudice wrought to any , for if one man be patron of both Churches , hee shall haue the sole presentment : if there be seuerall Patrons , then they shall present by turne , and the King shall haue the laps , as before hee should . Otherwise it is vpon an appropriatian , for that is an amortisement , and therfore all must ioyne in the making of it .

Statutes .

37. H. 8. Cap. 19. By assent of ordinary , incumbent , and Patron , vnder their seales , an vnion may bee made of two Churches , being not aboue six pound yearly value in the Kings bookes , nor distant one from another aboue a mile ; sauing to the King his tenths , and first fruits .

In corporate Townes it must bee by assent of the Corporation .

If such a poore Parish shall within a yeare assure by writing to the incumbent and his successors , eight pound yearely , the vnion shall be void .

Ouer and besides those Corporations that were at the Common law , there bee diuers others which haue growne of later time , by a speciall foundation and election , whereof some are aggregate of many persons , 14. H. 8. 3. Fineux that is to say , of a head and body : other consist in one singular person .

These Corporations are all of them 14 H. 8. ibid. Temporall or Spirituall .

The Temporall , made by the King , as Maior and Comminaltie ; and many moe which he maketh or may make euery day . Also (a) (a) 9. Eliz. Dy. 255. Littlet . 36. 40. Ass pl. 27. & 41. Colledges , as master & fellows , &c. diuers Townes are so incorporate before time of memory , with power to hold plea , by Writ of ex graui quaerela , or such like , and are called Boroughs , from whence (a) (a) Littlet . 36. come the Burgesses to the Parliament : and this maketh the difference betweene the Borough and a Towne . So that (b) (b) 40. Ass pl. 41. vpland Townes which are not ruled and gouerned as a Borough is , are but Townes , though they be inclosed in walls , as Ludlow , & such like . And euery (c) (c) Littlet . 38 Borough is a Towne , but not e conuerso . (d) (d) 40. Ass pl. 27. The names of all the townes in England , and which are so incorporate , and which not , are of record in the Exchequer .

The spirituall ones were for the most part made by the Pope , but had their power to purchase from the King . And these 4 H. 4. Cap. 2. 4 H. 4. Cap. 12. Coo. likewise are of two sorts , for either they are Regular or Secular .

Regular , which haue entred into Religion , ( and thereupon called religious ) professing to vow three things , Obedience , voluntary Pouerty , and perpetuall Chastity . Wherefore these are dead persons Littlet . 66. in the accompt of Law . Onely their head hath power to purchase or doe such other things to the vse of the house . And of this sort are Abbot and Couent , Prior and Couent , &c.

Secular , are such as haue entred into Religion ; as the Bishop and his Chapter , Moster of an Hospitall , and his Brethren , or confreres , gardian of a chappell , & the chapl●ns , &c. Also Archdeacons , & such like . Touching the Bishop & his chapter ( which make but one bodie ) their possessions 40. E. 3. 23. Coo. 75. are diuided : so as the Bishop hath part by himselfe , & the Chapter the residue . Which chapter consisteth of a Deane , as the chiefe , 17. E. 3. 40. Par● . & prebendaries , or such like , who are most properly termed the chapter : & of these also , their possessions for the most part are diuided : the Dean hauing some part sole in the 21. E 4. right of his deanrie : & the particular Prebendaries some other part in the right of their Prebends : the residue the Deane & 17. ass pl 29. 18. E 3. 36. F. N. B. 195. Chapter haue together . And euerie of them is to such purpose incorporat by himselfe .

And these spirituall corporations are 26. Ass. somtimes presentatiue , sometimes datiue , ( perpetuall or remoueable ) sometimes electiue , & haue a common seale , according as their corporation is . To them also personages may be appropriate , by the patron , Ordinary , & king , & vicars , indowed to serue the cure . Wherupon a praecipe qd reddat lieth against the vicar only , without naming of the person , for hee alone is Tenant of the freehold , and may haue a iuris vtrum , ( or other action ) against the person . All which is to be vnderstood of an ancient indowment , but not for lands whereof hee is indowed by the Ordinarie .

Statutes .

Magna Charta cap. 36. A gift of lands to a Religious house , to take it backe to hold of them , is meerely voide , & the Land forfeit to the Lord .

Stat. de Religiosis , cap. 1. Land giuen in mortmaine , vnder colour of a terme , forfeit to the Lord , the immediate Lord hath one yeare to enter , the next Lord halfe a yeare , and so from Lord to Lord , till it come to the King .

Westm 2. cap. 41. The King ( founder of a Religious house ) may seise lands which he gaue them , if they alien .

See all the statutes of the dissolution of Monasteries , Chaunteries , &c.

CHAP. 2.

Of Possessions .

OF the Common Law there bee two parts .

One that concerneth Possessions .

The other the punishment of offences .

A possession is whatsoeuer may bee inioyed .

Prerogatiue .

The King shall haue to his owne vse , & 31. E. 3. San. def. 37. therefore may let to farme rendring a rent , all the possessions of a foole (a) (a) 18. E 3. Sciro fac. 10. naturall , not of any other Ideot (b) (b) Stam pre . 34. during his ideocie , but (c) (c) 1. H. 7. 24. not that which he hath title vnto by entrie or action . And therefore vpon an office ( finding that the Ideots ancestors died seised of an estate taile ) it is sufficient to trauerse the dying seised , for that only intituleth the King .

Statutes .

Prerogatiue cap. 9. The King shall haue the custodie of their lands during their life . Prerogatiue cap. 10. And of Lunatickes , during their Lunacie , to their owne vse .

When one hath the possession of any thing 28. H. 8. Dy. 12. Fitz. to anothers vse , this vse at the Common Law , was accounted nothing , but as a matter in conscience and Chancerie onely . Whereupon these Statutes following were made .

1. R. 3. cap. 1 Cesti qui vse may grant the land , or suffer a Recouerie of it .

4 H. 7. cap. 17. The heire of Cesti qui vse , ( of land holden by Knights seruice ) shal be in ward , and pay reliefe .

19. H. 7. cap. 15. Execution vpon iudgement , statute , or recognisance , shal be good against Cesti qui vse .

The heire of Cesti qui vse of land in Socage , shall pay reliefe , heriot , &c.

27. H 8. ca 10. Where any be seised to the vse or trust of another , Cesti qui vse , or trust , shall haue the possession in such qualitie , manner , and condition , as he had the vse or trust . So when any be seised to the vse or intent that another shall haue a yearly rent out of the same lands , Cesti qui vse of the rent shal be deemed in the possession thereof , of like estate as he had that vse .

27. H. 8. cap. 16. Bargaines and sales to raise an vse of inheritance or freehold , must bee by deede indented and inrolled within sixe moneths , in a Court of Record at Westminster , or in the Countie where the land lieth .

Sundrie men possessing the same thing by purchase , are Iointenants , or Tenants in Common .

Iointenants which possesse by the same title . As if two , three , or more , be infeoffed Lit. ca ▪ of Iointer . of certain lands , to hold to them and their heires , or during their own or anothers life , or disseise another to their owne vse , or a lease be made , or a horse , or other Chattell personall giuen vnto them .

And here the suruiuour shall haue the Lit. ibid. whole in the same sort as he had his part , excepting onely present interests of the thing it selfe granted by him that dieth .

As a Lease for yeares , though the Lessee neuer had possession , or though it be to begin at a day to come , and the Iointenant which made it , die before the day ; bindeth the Suruiuor : for the Lessee hath a present interest .

Otherwise it is of a grant to haue a lease , if the grantee pay x. l. before midsomer next , 5. El. Ploy. 203. Browne . and the Iointenanr which made the grant , die before the day : for there is no interest at all , but a communication onely , till the monie be paid . Otherwise it is also of a rent charge granted out of the land wherof they Lit. ibid. are Iointenants : for that is no interest in the land it selfe .

Tenants in Common are they which possesse by seuerall titles . Lit. chap. of tenants in Common .

As if two Iointenants bee , and one alieneth his part to another , the Alience , and the other Iointenant , are Tenants in Common : for the Alienee commeth in by one of the Iointenants feoffement . So if three Iointenants be , & one alien that which to him appertaines in fee ; the Alience is of this third part tenant in common , with the other two Iointenants : but they remaine still Iointenants of the other two parts . So if land be giuen to two men or two women , and the heires of their two bodies engendered : the Donees haue a Ioint estate during their liues : but their issues are Tenants in Common of the inheritance . For euey one claimeth as heire of the bodie of his father . And it is impossible that two men or two women should haue one heire of their bodies betweene them begotten .

So if land be giuen to a Maior & Comminaltie , and their successors , & to I. S. for I. S taketh in his owne right , and the other in the right of the corporation . And therfore 7. H. 7. 9. vpon a feoffement to a corporation , & another person , there must be seuerall liueries , in respect of their seuerall capacities , which maketh them tenants in common .

So if lands be giuen to two , Habendum the one moitie to the one , & the other moitie Lit. ibid. to the other . In like sort if a lease for yeares be made to two , or two buy a horse or oxe , and one grants that which to him appertaines of the terme , horse or oxe to another .

To possessions this is generall , that they may be granted .

Statutes .

3. H. 7. cap. 4. All deeds of gift of goods and chattels made of trust to ones own vse , shall be void .

13. Eliz. cap 5. made perpetuall .

27. Eliz. cap. 1. Euerie gift , grant bargain , and conueiance , of lands & chattels , or of lease , rent , common , or other profits out of them , and euerie bond , suit , iudgement , and execution since the beginning of her Maiesties raigne , or herafter to be had or made , for the defrauding of any persons iuct action , suit , debt , account , dammage , penaltie , forfeiture , heriot , mortuarie , or reliefe , shall be void against that person , his heires , executors , &c.

The parties or priuies knowing such a fraudulent gift which shall iustifie it to bee done bona fide , or shall alien such things so to them conueyed ; forfeit one yeares value of the lands or profits out of it , & the whole value of the goods and chattells , & the sum of such couenous bonds , & shal haue halfe a yeres prisonment : this act extendeth not to common recoueries , nor vouchees in a formdon , nor to any gift , &c. bona fide , & vpon good consideration to any person , not knowing of any fraud .

27. Eliz. cap 4. Euerie conueyance , grant , charge , lease , estate , incumbrance , and limitation of vse of Lands , tenements , or hereditaments , made since the beginning of her Maiesties raign , or hereafter to be made , for the defrauding of purchasors of the land it selfe , or any part or profit out of it , shal be voyde against the person so purchasing for monie , or other good consideration , and against all claiming vnder him ; with penaltie , as in the former statute .

This extendeth not to the auoiding of any grant &c. vpon good consideration and bona fide If any such conueiance &c. be made with a clause of reuocation or alteration at his pleasure , by writing ; and after he shall bargain , demise , sel , grant , conuey , or charge the same lands &c. for monie or other good consideration ( the conueyance not reuoked or altered ) then the conueyance &c. shall be void against the bargainees , &c. and all claiming vnder them ( lawful morgages only excepted . )

Prerogatiue .

Euerie grant made by the King , vpon surmise or suit of the partie , shall bee taken most beneficially for the King , and against 37. H. 6. 21. the partie Soas a pardon to the Sheriffe ex speciali gratia & mero motu of all misprisions , offences , contempts , and deceits , shal discharge him of an amerciament , for returning of one Quarto exactus , where indeede he was outlawed . But if himselfe sue for such a pardon , he must haue expresse words , otherwise it will not helpe him .

His grant shall not be taken to two intents ; that is , Shall not inure to any other intent than that which is precisely expressed within the grant .

As if he grant an office for life to an Alien , 9. E. 4. Den. 1. it is nothing worth : for it cannot inure also to make him a Denisen .

If he grant land to A. in fee , which A. is 19. El. Ploy. 502. his villeine ; this shall not manumise him : for the villenage is a forrein matter not expressed in the grant .

But the King may create a Duke , and in that patent grant him Land by the same Br. patents 44. name , or make a Maior or Comminalty , & by the same patent , giue them Land , or grant them licence to purchase : for these are two seuerall things expressed in the Grant .

No grant of his is good , when it appeareth within the bodie of the grant , that the King is deceiued .

As if he giue lands to one and his heires 18. H. 8. B. pa. 104 males . For this is a fee simple , and it is plain , the king meant to grant but an estate taile .

Statutes .

1. H. 4. cap. 6. The Kings grants shall be void , if expresse mention be not made of the value , in the Petition of those that sue for it .

A grant by an infant vnder the age of F. N B 202. 26. H. 8. 2. 21. yeares , (a) (a) F. N. B. 202. c. 7. H. 4. 5. 12. one out of his right mind ; whom we cal non sane memorie , or non compos mentis , or compelled thereunto either by (b) (b) 9. H. 7. 24. dures of imprisonment , or feare of some ( c ) 39. H. 6. 50. bodily hurt threatned to himself , not to his father , mother , brother , &c. as losse of life & member : or though it be but of imprisonment : for imprisonment is a corporal pain , & one may be imprisoned that he may die of it . Otherwise it is of a menace to breake or burned downe ones house ; for that is but the losse of ones goods , is auoidable , that is to say may be auoided at any time be entrie action , &c. if they deliuer it with their hand : as in a feoffement , and themselues make liuerie , or a gift of goods , and themselues deliuer them .

But if they deliuer it not with their hand , as in a grant of a rent , aduowson , &c. or a feoffement by letter of Attornie , &c. it is meerely void , and nothing at all passeth : So as they may haue a trespas or assise , and remaine Tenant to the Lord , and therefore shal be in ward , notwithstanding any such feoffement .

So of a grant made by one that hath no Park . 5. vnderstanding . As if he be borne dumbe , deafe , and blind . But one dumb may make a good grant , or borne dumbe & deafe . For diuers may haue vnderstanding by their sight onely , though dumbe and blinde .

Grants of an infant , in respect of hauing things necessarie , cannot be auoided .

As a bargaine for his necessarie meate , 18. E. 4. 2. drinke , & apparell : for he cannot liue without them .

Other grants of his where himself hath likewise benefit . We call it Quid pro quo , are onely voydable , as if he let land for yeares , 18. E. 4. ibid. reseruing a rent .

To this place belongeth exchange , which Lit. 13. is a mutuall grant of equall interests , each in exchange of other .

As of land in fee simple , for other of the same estate . But to exchange an estate pur Park . 55 : auter vie , for an estate for life is not good . For though both haue a free hold , yet an estate during anothers life , is not so high a freehold , as an estate during his owne life . And in euerie exchange there be two grants , Lit. 13. for each graunteth to other his land in exchange . And the verie word it selfe of exchange 9. E. 4. 21. is necessarie : For if I giue to a man an acre of land by deede indented , and hee by the same deede giue vnto me another acre for the same acre , nothing passeth without liuerie , if the word Exchange bee not in .

Prescription is as auaileable as any Lit. 40. grant . As that one and his ancestors , time 19. H. 6. 34. out of mind , haue beene seised of a certaine yearely rent out of land , & distreyned for Lit. ibid. it being behind . Or if a velleine and his ancestors , as of villeines in grosse ; or that one , and those whose estate he hath in the Mannor of D. haue had a park there time out of 3. E. 3. Br. incid . 39 mind . For of such things as cannot be granted without deede or fine , the prescription Lit. ibid. must be in him & the ancestors , whose heire he is : and not in himselfe , and those whose estate he hath : because he canot haue their estate without writing , which must bee shewed to the Court. As of a villeine in grosse , a (a) (a) 12. H. 7. 18. hundred rent &c. Otherwise it is of things appendant or regardant to a mannor

A possession is either vpon a limitation , or condition , or else absolute .

Vpon a limitation which ceaseth vpon the 11. H 7. 17. doing or not doing of something . As a lease for yeares , vpon condition if the lessee goe not to Rome by such a day , his estate shal cease . And therefore in this case the grantee of the reuersion may enter , if he go not : for therby his estate is determined & void . Lit. 90. So if lands be giuen to husband and wife during the couerture : or a Parson make a leas to one so long as he is parson ; this in both cases is an estate for life vpon limitation .

Vpon condition , which is onely defeasible vpon the doing or not doing of somthing . As a lease for yeares or life , vpon condition L●t . 74. & 8● : if the lessee go not to Rome by such a day , the Lessor and his heires may reenter . And therefore here the grantee of the reuersion cannot reenter for the condition broken . So if a man by deed indented , infeoffe another in see simple , or make a gift in taile , or a lease for life or yeares , reseruing to him & his heires a yerely rent , payable at a certain time , vpon condition , if the rent be behind &c. it shall be lawfull for him & his heires into the same lands or tenements to reenter &c. In these cases if the rent be not paid at or before the time limitted in the condition ; the feoffor or his heires may enter in such lands or tenements , and them haue & hold in his first estate , and thereof quit and cleane to ouste the feoffee , donee , or Lessee , &c. And this is termed a condition in deed . So of such estates as haue by the law , a condition annexed vnto them ; although it be not specified in the writing . As a man graunteth to another by his Deede , the office of a Parkership of his parke , to haue and occupie the same office for term of his life ; the estate which he hath in the office , is vpon condition in Law : that is to say , that he doe well and lawfully keepe the park , & do that which to the office appertaines , otherwise the grantour and his heires may lawfully oust him , and grant it to another . And such a condition which is vnderstood by the law to be annexed to any thing , is as strong as if the condition were put in writing .

In the same maner it is of the grant of a stewardship , Bedleship , Bailiwicke , or other offices .

Absolute , which is neither vpon limitation nor condition .

Againe , possessions are in being , which properly wee terme in possession or in Action .

In possession , which one doth inioy .

In action , whi●h one ought to inioy , either in respect of a right or title .

Right is when a wrong was done before : 15. El. Ploy. 555. Manwood . as by wrongful entrie vpon his lands , or taking away his goods , &c.

Title , when no wrong was done .

As in a feoffement vpon condition , and the feoffee breakech the condition .

Of things in action : as cause and matter Preamble of 32. H. 8. 8 cap so reciteth the Common Law . of suit , entrie to continue ones right , or vpon title : as for a condition broken , & such like , no stranger shall take aduantage And strangers are accounted ( besides the parties themselues , which are not either priuie in Park . 164. bloud , as the heire to the feoffor : or in succession , as the successor of Maior and comminalty , &c. or executor , administrator , &c. which represent the testator .

Statutes .

32. H. 8. cap. 34. All grantees of reuersions may enter vpon Farmors , for any forfeture ( or condition ) and haue like aduantages against them ( by action only ) for any other couenants , condition , or agreement contained in the Indenture of their lease ) as the Lessors , their heirs , or successors might And the like for the Lessees against the grantees of the reuersions ( recouerie in value onely except .

Therefore things in action cannot bee granted but to him that hath possession : and that by release or confirmation : for a release 1. H. 6. 4. or confirmation of land to him that hath nothing in the land , is void .

Release is a passing of the grantors interest . The forme whereof is , De me & hared . Lit. 105. quietum clamaui , &c.

Confirmation is a ratifying of the grantees possession . The forme whereof is . Confirmaui C. de D. statum & possessionem &c. Lit. 119.

Furthermore , the grant of euerie thing in action , and of such things in possession as cannot passe by liuerie of the hand , must of necessitie be by deede . For the right of the thing Reall or personal , cannot be giuen 6. H 7. 9. nor released by parol . No more can a reuersion , rent , common in grosse , or villeine in Park . 13. grosse , be granted by paroll .. But a horse , oxe , or such personall thing , corne , & trees growing vpon the ground may : and also the wardship of bodie or land .

So a lease for life , with a remainder ouer , is good without deed : for the remainder passeth by liuerie and seisin .

A Deede is a writing sealed and deliuered . For if either a parchment with Park 25. out Writing bee deliuered as ones Deede , yet it is not his Deed , though an Obligation be afterwards written in it : or Park . 27. if it be a writing but not sealed at the time of the deliuerie of it as his Deede , it is a scroule and not his deed . Or if I make & 9. H. 6. 37. seale a deede , and the partie take it without my deliuery ; I may plead it is not my deed . And belongeth alwaies to him whose possession is made by it . As if I release to two disseisors , and deliuer the Deede to one , the 34 H. 6 1. other suruiuing shall haue it . Or if the 6 H. 7. 3. Disseisee release to the Disseisor , and hee make a feoffement of the land , the feoffee shall haue the release . But if a feoffement to two without deede , and the writings of the land are deliuered to the one , the other shall not haue them : or if hauing two joint feoffees , I release to both , and deliuer the Deede to one , the other though he suruiue , shall not haue it .

But a writing read in another forme to 1. H. 7. one not lettered , that is , that cannot reade , is not his deede at all , though he seale and deliuer it .

A deed is a deede poll or indenture . Lit.

Poll , that which is the onely Déed of the grantor .

Indenture , that which is the mutuall Lit. 88. 14. El. Deede of both : yet the deed of the grantor is the principal , and the other is but a counterpane . And therefore if the Lessor seale , and not the lessee , it is as good against him as if both had sealed . And if there happen any variance betweene the deeds , it shall be taken as the deed of the grantor is , and the other shal be intended onely the misprision of the writer .

And barreth them from saying contrary to any thing in the Indenture . As vpon a 15. El. Pl. 434. lease by indenture or fine , both parties are estopped to say that the lessor had nothing in the land : so as if the lessor come afterward to haue the Land by purchase or discent , the Lessee may enter vpon him by way of conclusion , and likewise the Lessee shall by estoppell , be driuen to pay the rent .

Sometime bare acts , without indenture Lit. 149. or other matter . Worke an estoppel in like sort . As if the husband discontinue the wiues land , and take backe to him and his wife for their liues : the wife is remitted , but the husband ( by this bare taking back , is estopped to say so .

CHAP. 3.

Of Hereditaments , where : of Estates .

A Possession is an Hereditament or Chattell .

Hereditament is a possession which one may haue an Estate in . One borne of Parents out of the Kings allegiance ; such an one we call an alien . But (a) (a) 36. H. 8. Br. denisen. 9. 1 R. 3. 2 Hussey . an an aliens Sonne , borne in England is no alien : Nor by the Common Law , one borne beyond Sea , of English Parents , in the Kings subiection . And the Statute 25. E. 3. onely maketh it more cleere ; is disabled to enioy any hereditaments , he shall haue no (b) (b) 38 H. 8. Br. denisen 10. & 16. reall nor mixt action , nor is inheritable : but either his yonger brother being a denizen , shall haue it , or the (c) (c) So Doct. & Stud thinketh Br. denisen 7. Lord by Escheat .

Prerogatiue .

Therefore such a one purchasing (d) (d) 14 H 4. 20. c. Mar. Br. denison 25. any , though it be but for yeares , it is the Kings .

An Estate is particular , or an inheritance ,

And is Vncertaine , or Certaine .

Vncertaine , which is determinable at anothers pleasure , as an estate at sufferance , and at will .

At sufferance , when after lawfull occupation , he continueth possession without authoritie . 7. E. 4. 6.

As lessee for yeres , holding in after his terme expired , and before any entry made vpon him . But if he continue after entrie vpon him , then is he a wrong doer .

At will , when an estate is made during Lit 24. 14. H. 8. 12. pleasure .

Statutes .

6. H. 8 cap 15. If the King giue land , or an office , durante bene placito , & after grant the same vnto another : the second graunt shall be void , if mention be not made therin of the first .

Certaine , which is not so determinable , And is called a terme , whereupon may depend a remainder or reuersion : for a remainder cannot bee but vpon a particular estate precedent . As vpon a lease for yeres or life ; 7 E. 6 Ploy 83. vpon an (a) (a) 11. H. 4. 42. estate to one & his heirs during the life of I S for in effect it is but an estate for life . But not vpon an estate to one and 4. E. 6. Ploy ●9 . his heires , so long as I. S. hath heires of his bodie ; For that is a fee simple determinable . Nor (b) (b) 3. E. Pl. 235. & 247. at the Common law , vpon an estate to one & the heires of his bodie : for it was a fee simple conditionally ; (c) (c) ibid. neither could any reuersion be of it .

Remainder , is a residue of the estate , at the same time appointed ouer : and therefore 38 H. 6. 30. cannot be said to be ex assignatione , but ex dimissione of the Lessor , because it passeth at the same time .

Reuersion is a residue of the estate , not at the same time appointed ouer . As if a Lit. man let land for life , without saying more ; the reuersion of the fee simple is in the lessor . And if he afterwards grant this to another , the grantee hath a reuersion .

Termes are forfeited by plucking the inheritance out of him that hath it . As if tenant Lit. 137. a fundamenti legum . ꝑ Br. Forf . 96. for life ( or yeres ) of land make a feofment in fee : for thereby the fee simple passeth , by reason of the liuerie .

Otherwise it is , if tenant for life of a reuersion or rent , grant it by his deede in fee : or if tenant (b) (b) 1. H. 7. 22. for life take a fine of a stranger , sur conusance de droit , or sur release ; for such a fine increaseth not his estate . But a (c) (c) 42. H. 3. 20. fine by tenant for life to a stranger , sur conusance de droit come ceo quil ad de son done , is a forfeiture . So if tenant for life (d) (d) 9. H. 7. 20. pray in aide of a stranger , or ( in (e) (e) 9. H. 5. 14. a writ of right brought against him ) ioyne the mise vpon the more right . And these are by reason of the estoppell .

Termes may be surrendred : that is to say , yeelded vp and drowned For a surrender cannot be of a fee simple . to him that the 12. H. 4. 21. next and higher estate . As two Iointenants , 22. H. 6. 5. and to the heires of one , hee that hath the freehold cannot surrender to the other : for both haue a ioynt possession , and the same estate . But Tenants in Common may : As the alienee of him that hath the free hold in Park . 113. the former case , may surrender to the other Park ibid. Tenant for life , where there is a remainder for life with remainder ouer in fee , cannot surrender to him in the remainder in fee ; for he hath not the next immediate estate . Lessee for life cannot surrender to Park . ibid. him in the remainder for yeres : But to him in the remainder for life hee may , for that remainder ( as vnto him in the remainder ) i● an higher Freehold than the others estate , which is vnto him but pur auter vie .

Statutes .

Glocestr̄ cap. 7. Tenant in Dower , alienating longer than during his owne life , he in the reuersion shal recouer against the Alienee in her life time .

A terme is for yeares , or life . The present estate for life is termed a Free-hold ( in deede ) if he be actually seised of it ( in Law ) before his entrie , when it is cast vpon him by course of Law ; as vpon the heire by death of his ancestor ; vpon him in the remainder by death of the particular Tenant .

A terme for life is either for his owne or pur auter vie , that is , for anothers life , where the tenant pur auter vie dying before Lit. 167. the other , whom we terme Cesti qui vie , hee that can first hap it , shal inioy out the term , and is named an occupant , but if land be let to one and his heires during anothers life , the heire shall put out the occupant .

Inheritance followeth . Euerie Inheritance at the Common Law is called a Fee simple : The release wherof , or of an estate for life , is not good to one that is but tenant 9. H. 6. 44. for yeares , without priuitie . As if Tenant for life or in fee , release to the Lessee for yeares of his disseisor . But the release of a terme for yeares to the Lessee for yeares of him that doth eiect him , is good enough : for there needs no priuitie .

And to these two estates of inheritance , and life , warrantie doth belong : which is an assurance warranting such an estate : for the word Warrantizabimus , onely maketh a Lit. 166. 26. H. 8. 3. warrantie , and not defendemus . And if a lease for yeres be made with warrantie , this sounds not in nature of warrantie , but of a couenant , because it is a chattell . A●● if the Lessee be ousted , yet hee may haue an action of Couenant . But in a warranty of a fee or Free-hold , the partie shall haue no aduantage vnlesse he be tenant of the land .

Euerie exchange hath a warranty knit 3. E. 3. form . 44. by law . And therfore the Exchangor or his heire may vouch to warrantie by an exchange without deede , and his Assignee rebutte .

Inheritance is an estate descendable : for Lit. 1. inheritance neuer lineally ascends , as from the sonne ( that purchaseth in fee simple , & dieth without issue ) to the father : but alwaies discends , as to the vncle , brother , &c. to his heires that hath actuall possession .

As if the eldest brother once enter , his Lit. 2. sister of whole bloud shall inherite , & not his brother of the halfe bloud . But if he neuer enter , the brother of the half bloud shal inherite as heire to his father .

An heire is the next of worthiest of whole Lit. 2. bloud : for the halfe bloud is inheritable , being also of bloud to the first purchasor .

So the bloud of the fathers side is worthier than the mothers : the elder brother Lit. 2. & 3. worthier than the rest . Therefore these shal inherite first .

So , lands purchased may go to the heires 49. E. 3. 12. of the part both of the father and mother of the purchasor , vnlesse it be once attached in the heire of the part of the father ; for them the heire of the part of the mother shall neuer haue it , because they are not of bloud to him that was last seised .

But Lands discended goe onely to the heire of that part from whence it discends : as if from the father who did purchase it ; then it may goe to the heires of the part of the mother of the same father , but not to the heires of the part of the sonnes mother . For though they be of bloud to the sonne that was last seised : yet they are not of bloud to the father which was the first purchasor .

He that is begotten out of mariage , is called 1. H. 6. 3. a bastard : for if a woman great with child take a husband , the issue borne ( though it 1. H. 6. ibid. 7. H. 4. 9. be within sixe weekes after ) is no Bastard . Or if the wife clope from her husband , and continue in adultrie , yet the issue borne during that time ( if both bee within the foure Seas ) is intended lawfully begotten . And if one die , his wife priuement inseint 21. E. 3. 29. ( that is , so with child as it is not discerned ) and she take another husband , the issue borne within a moneth ( or such a time as it is impossible he should beget it ) shall be accounted the son of her first husband , and such a bastard is of bloud to none : in Law , (a) (a) Lit. 41. nullius filius .

And therefore cannot inherite : nor bring (b) (b) 35. H. 6. 9. a Writ of Detinue as heire ; nor bee a villeine (c) (c) Lit. 41. but by his owne confession in Court of Record : and the land shall (d) (d) 2. E. 2. bast . 20. escheate where there is no issue but such a bastard , nor other heiere .

But (e) (e) Lit. 94. marriage following after , gaineth him the right of inheritance , if after the fathers death he enter before his younger brother , (f) (f) 17. E. 3. 59. bast 32. or sister if both be females , borne (g) (g) 3. El per Dy. in sir Th Gerrar . c. of the same father and mother within espousals : who is called mulier puisne , and the other Bastard eigne , and continue (h) (h) 2. E. 3. 16. the possession all his life without interruption . And that (i) (i) 36. ass pl. 2. Br. dis●ent 29. although the mulier puisne be an infant : because this bindeth the right . For (k) (k) Lit. 94. such a bastard is a Mulier by the Law of Holy-Church : and therefore hath a colour to enter as heire to his father .

If the next be women in equall distance , Lit. 53. as daughters , sisters , Aunts , &c. they shall inherite alike , and are but as one heire , called parceners or coparceners .

Where the generall entrie of one , is of Lit. 160. the rest , if they liste . So is not a speciall entrie to her owne vse .

As if Tenant in Taile haue issue two daughters , and the eldest entreth into the whole , and thereof maketh a feoffement with warrantie ; this is a collaterall Warrantie , and a barre to the puisne daughter for her moitie . Which prooueth , That this speciall entrie is not the entrie of both : for then it were a Warrantie commencing the disseisin , and no barre . But all this is to be vnderstood where the other coparceners list to haue an entrie for them , and not otherwise . And therefore in a Partitione facienda 4. H 7. 9. of rent , it is a good plea for the defendant if she is sole seised , without that , that she holds pro indiuiso . And the plaintife is driuen to a nuper obijt . And if one enter , 43. E. 3. 19. both cannot be vouched as heires , for that is to their disaduantage . But both may haue an assise .

The inheritance it selfe that discendeth , shall bee charged by the deed of the same (a) (a) 10. E. 4. 10. Ancestor ,

Whether Obligation , couenant , annuity , warrantie , or whatsoeuer else : but not by any bare matter (b) (b) 10. E. 4 10. en fait , as of ones Ancestor time out of mind haue beene woont to pay an annuitie , &c.

Binding himselfe and his heires .

But if either a man bind his heirs to pay ( c ) 31. E. 1. gr. 85. xx . l. a yere , or such like , but not himself ; or himself (d) (d) 15 El. Pl. 457. Br. Annuitie 13. 2. H 4. 4. 13. without naming his heirs : there the heire shall not be charged , though he haue assets by discent . And therefore (e) (e) 15. El. Pl. 441. 17. El. Dy. 344. the heire being charged onely by reason of assets , when he hath assets , the same is counted his own debt , & the action of debt lieth against him in the debet & detinet , not in 40. E. 3. 15. the detinet onely . And for one acre onely by discent , the heire shall be chargeable to an Obligation of 1000. l. but no other land shall be put in execution , but it . So , though it bee but a reuersion that discendeth : In which case the Iudgement shall be Quod recuperet debitum , & damna de praedicta reuertione leuanda cum acciderit . And a speciall Writ shall goe out to extend the whole .

Statutes .

Merton . cap. 5. A Nomine poenae shal not incurre vpon an heire within age .

The dying seised of the inheritance and Lit. ca. of descents . freehold together . Not of a free-hold onely , as of an estate for his own or anothers life , nor of a remainder or reuersion where the Free-hold is out of him .

Whereby the land discendes vnto his heire . For if it escheate , as by the death of Li● . ibid. the Alience of the Disseisor , without heire , the disseisee may enter ; taketh away the entrie of euerie one , We call it a discent that tolleth entry , whether it be of one that hath right , as in the dying seised of a disseisor , (a) (a) Lit ibid. abator , (b) (b) 4. E. 6. Pl. 47. or intrudor ; or of one that hath but title that may haue an action : as an Infant (c) (c) Lit. 96. whose feoffee after his full age , dieth seised : hee (d) (d) 21. H. 6. 17. in the reuersion , where tenant for life doth Alien , and the Alienee dieth seised ; the Deuisee (e) (e) 9 H. 6. 25. 21. H 6. 17. 33. Ass pl. 11. of land in London , if the heire enter and die seised . For the Infant may haue a Dum fuit infra aetatem , he in the reuersion a consimili casu , & the Deuisee in that case an ex graui querela . But if the Disseisor of the feoffee vpon 47. E. 3 11. 1. E 6 ▪ Br. Deuise 36. condition , or an Alienee in Mortmaine die seised : or if a man deuise , that I. S. shall sell his lands at London , &c. and the heire bee disseised or make a feoffement , and the Disseisor or feoffee die seised : yet the feoffor vpon condition in the first case , the lord of whom the land is holden in the second case , and I. S. in the last case may enter , notwithstanding any descent : for they haue no remedie .

But claime vpon the Land within a yere before the death , it is called continual Lit. chap. of contin . claime . claime , or if they dare not vpon the land for feare of some bodily hurt , then as neere the Land as they dare , saueth their entrie .

Statutes .

32. H 8. cap. 23. The dying seised of a disseisor by strength , and without title , tolleth not the entrie of him and his heires , which at the time of the discent had good title of entrie , vnlesse the disseisor had peaceable possession by fiue yeres next after the disseisin .

A fee simple , is a fee simple , conditionall or absolute .

Conditionall is a fee simple to one and the heires of his bodie : for that is a fee simple 40. El. Pl. 250. at the Common law : but the hauing of issue made it a more perfect fee simple than before .

Which before issue cannot bee alienated , 30. E. 1. Form . 85. after issue had , becommeth an absolute Fee simple .

And may be alienated or forfeited by attainder ( a ) 7 E. 3. 36. 8. per a El. 11 Pl. 240. 30. E. 1 ibid. of felonie . But so , as if the Issue faile before the alienation , the donor , or giuer , shall haue it .

And this by the statute of Westm. 2. C. 1. being restrained from all alienation ( to the preiudice of the Issues ) and that so as by the verie words of the Statute , a reuersion depends vpon it ; is now become , and made by the construction of that Statute , a new kind of estate , deuided from a fee simple , & called an estate Taile . Which name for plainesse sake we vse hereafter , calling the other onely a fee simple . And the name of Inheritance we applie indifferently to them both . In which sence all common vse doth take those words .

Statutes .

Westm 2. cap. 1. The Will of the giuer ( according to the forme in the Deede of Gift manifestly expressed ) shall bee from henceforth obserued . So that they to whom the land was giuen vnder such condition , shall haue no power to alien the land so giuen , but that it shall remaine to their issue after their death , or shal reuert to the giuer or his heires ( if issue faile ) neither shall the second husband of any such woman from henceforth haue any thing of the land so giuen , vpon condition after the death of his wife ( by the Law of England ) nor the issue of the husband and wife shal succeed in the Inheritance : but immediatly after the death of the husband & wife ( to whom the land was giuen ) it shall returne to their issue , or to the giuer or his Heires , as aforesaid .

34. & 35. H. 8. cap. 20. No common recouerie of lands in taile , of the gift or other prouision of the King or his Progenitors , ( though it be with voucher against tenant in taile , the remainder or reuersion beeing in the king at the time of the recouerie ) shal bind the heire in taile , or barre him of his entrie . Tenaunt in taile shall take no aduantage for any recompence in value against the vouchee or his heires .

Hither belong hereditaments giuen in franke marriage ; that is to say , freely in marriage with ones Kinswoman .

For the verie word Franke marriage implieth Lit. 4. & 60. an inheritance to the Donees , & the heires of their two bodies begotten .

But land cannot be giuen in Frank marriage H. 8. Br. ●●an. 10. with a man that is Cosen to the Donor , but alwayes with a woman .

Absolute , is a fee simple to one and his heires whatsoeuer : which discending to femals ( if one of them haue lands of the same Ancestor by frankemariage ) she shal haue no more vnlesse she be content to put those lands in Hotchpot ; that is , that the value thereof be allowed to the other .

As if x. acres were giuen to her in Franke Lit. 59. mariage , and xx . acres more ( all of equal value ) descend from the same donor , she putting all together that that value may bee knowne , shall retaine her own x. and haue v. acres more .

But if the lands discend from the father of Lit. 61. the Donor , or other Ancestor , and not the Donor himselfe ; she shall haue her part in that which discendeth , without putting in Hotchpot : for she is not aduanced by him , but by the other .

No more shall any Hotchpot bee , but in Lit. 61. lands giuen in franke mariage . For if a woman haue lands by any other gift , she shal haue her part of that which discendeth , as if no such gift had beene . And the reason of all this is , for that ( if she wil not put the Lit. 59. land in Hotchpot ) the Law intendeth that she holds her selfe sufficiently aduanced . And note , that vpon the Hotchpot , the lands giuen in frank marriage must alwaies remaine to the Donee .

To this place are to be referred Lands giuen to a Corporation , which goe in perpetual succession .

And therefore Lands giuen to a Maior a 27. H. 8. 15. Comminaltie , without saying , And to their successors , is a Fee simple , and though the Grant be for their liues . For those are voyd words .

And a colour in an Action of Trespasse , 21. E. 4. 66 cannot be giuen in a Corporation by a lease for terme of their liues : for beeing a Bodie politicke ( which neuer dieth ) they cannot haue such an estate .

Here two speciall estates for life ; dower , & Tenancie by the curtesie of England , do arise after ones death that hath an inheritance ioyned with the Freehold .

For they (a) (a) 9. El. C. B. may be of a reuersion depending vpon an estate for yeares , and consequently of the rent , if any be reserued . But (b) (b) 40. E. 3. 15. not where one hath an estate for life , the remainder to another in taile , the remainder to his owne right heire : whether it bée a fée simple , or such an estate taile as may goe to the issue had betwéene the Donees ; that wife , or that husband ( if the Donée be a woman . ) As if lands bee giuen to a man Lit. chap. of dower . and the heires that he shall beget of the bodie of his wife ; the same wife shall bee indowed , but not a second wife . And of lands giuen to a woman & the heires of her body begotten by the husband , her husband may be tenant by curtesie , but not a second . So of 4. El. Pl. 239. landss giuen before the Statute of West . 2. to a man , and a woman , and the heires of their two bodies ; the second wife shall not be endowed , nor the second husband be Tenant by courtesie , for their issue cannot inherite . But in both cases the wife Lit. chap. of dower . of euery issue ( inheriting by force of that gift ) shall bee endowed , and the husband of euerie such issue may be tenant by courtesie . So of Lands giuen to a man and the heires of his bodie , or to a woman and the heires of her bodie , whatsoeuer wife the husband taketh may be endowed , & whatsoeuer husband the wife taketh may bee Tenant by courtesie .

Dower is an estate whereby the woman Let. 7. hath the thirds in seueraltie , who must bee nine yeares of age at the time of her husbands death . Detaining of deedes 9 F. 4. 47. concerning inheritance descended to the heire , is a barre of her Dower , so long as she deteineth them : but (b) (b) 2 H 7 6. so it is not of lands purchased by the heire .

If the husband at the Church doore , Let. chap of dower . ( which is called an endowment , ad ostium Ecclesia , or , being (c) (c) So he must be . Littlet . 8. heire apparant by the fathers or mothers consent , which is called an endowment , ex assensu patris or (d) (d) F. N B. 150. matris , &c. for the (e) (e) 8 E. 2 dower . 154. Sonne must make the endowment , and they assent , doe (f) (f) Park . 86. presently vpon affiance , not (g) (g) 44. E. 3 43. before espousals , endow her of any certainty , as of the whole moity , or lesse part , &c. this shall barre her of the thirds if she agree to it . But so shal not an endowment , ad ostium F. N. B. 150. camera , nor , ex assensu fratris , or consanguinei : F. N. B. 150. Therefore it is at her election after her husbands 21 H. 6. 25. death to hold her to this endowment , or to take her Dower at the Common Littlet . 8. law . And in such endowments the wife may enter after her husbands death , without any bodies assignment , ( because the certainty of the land which shee shall haue appeareth ) which in dower at the Common law she cannot .

Statutes .

Magn. Chart. cap. 7. The wife , after the death of her husband , shall abide in his chiefe messuage forty daies , within which time , her dower shall bee assigned her If the chiefe messuage be a Castle , then she shall haue a competent house prouided her till her dower be assigned .

Westm. 2. cap. 34. A woman that leaueth her husband , and abideth with an Adulterer , shall not haue dower , vnlesse the husband ( voluntarily , and without coertion of the Church ) reconcile himselfe , and suffer her to inhabite with him .

11. H. 7. cap. 20 If a woman that hath an estate in dower for life , or in taile ioyntly with her husband , or onely to her selfe , or to her vse in any lands , &c. of the inheritance or purchase of her husband , or giuen to the husband & wife by the husbands ancestors , or any seised to the vse of the husband or his ancestors , do sole ( or with an after taken husband ) discontinue or suffer a recouerie by couin , it shall be void . And he to whom the land ought to belong after the death of the said woman may enter ( as the woman had beene dead ) without any discontinuance or recouerie : Prouided , that shee may enter after the husbands death . But if the woman were sole , the recouerie or discontinuance barreth her for euer

This act extends not to any recouerie or discontinuance with the heire next inheritable to the woman , or by his consent of Record inrolled .

27. H. 8. cap. 20. Where an estate is made in possession or vse to husband and wife , and his heirs , or the heirs of their two bodies , or to them for their liues , or for the wiues life for her Iointure , shee shall not haue any dower : vpon a lawfull euiction of that Iointure , she shall be indowed according to the rate of land of her husbands , whereof she was dowable .

Such a joynture being made after marriage , the wife ( after her husbands death ) may refuse it , and betake her to her dower , vnlesse the Iointure be made by Act of parliament .

Tenancie by the curtesie of England is ●● estate , whereby of an actuall possession , the husband that had issue by her borne Lit. 7. aliue ( whether the issue be male or female , heard , or seene , and whether it afterwards die or liue , or if (a) (a) 28. H. 8. Dyer 25. Fitz. the issue be borne aliue , it is sufficient , though it bee not heard to crie ( in as much as he may be borne dumbe ) shall haue the whole .

But no tenancie by curtesie shall be of a Park . 90. & 89. possession in Law . As where lands discend to the wife , and she dieth before the entry by her , or her husband , or any for them . Nor of a thing in suspence : As where tenant in fee of the Land , marrieth a woman that is seised of the seigniorie in fee ; the husband can neuer be tenant by the curtesie of the Seigniorie : for by the intermarriage it is suspended . And it is called tenancie by the Litt. 7. courtesie of England , because no other Realme vseth it .

CHAP. 4.

Of Land .

HEreditaments , or tenements , or bare hereditaments .

A tenement is a possession holden , the fee simple wherof , when he that hath it dieth without heire , commeth to the Lord . Litt. 2.

Which is called an escheate . As if Land discend from the father , and he die without an heire of the part of the father . Or a Bastard 39. ass pl. 7. purchase land , and die without Issue .

Of this sort are lands and Adnowsons .

Land is a tenement or manuell occupation .

For if the tenant of twentie acres of land 21. H. 7. 39. before Quia emptores terrarum , make a feofment of one of the acres , to hold of him by vj. d. and dieth without heire ; the Lord shal haue a Writ of Escheate , supposing that he held of him xjx . acres , and vj. pence rent , yet indeed he held not the rent but the land : And in his count he shal declare al the speciall matter . So in a Writ of Ward of the heire of the mesne ; the Writ shall suppose the rent to be holden , and declare specially . Or hee may haue a generall Writ of the F. N. B. 139 c. land , or a speciall Writ , because the Mesne held the land vnde redditus ille prouenit . All which proueth , that indeed not the seigniorie , but the land is holden . Therefore of land rent &c. the pleading is , he was seised of his demesne as of fee . But an aduowson lieth not in manuell occupation : therefore Lit. 3. the pleading there , is , He was seised in fee , without saying in demesne .

Vnder the name of land are comprehended not only gardens , medowes , pastures , woods , riuers , &c. but also messuages , tofts , mills , Castles , and such like .

For in a Praecipe quod reddat of a messuage , the warrant of Attornie , is quod talis Po●lo suo ( i. ) posuit loco suo I. S. in placits terrae .

Churches and Church-yards belong to 11. H. 4. 12. the Incumbent .

For things annexed to the Church or Glebe : as trees or grasse growing there , are the Parsons ; and hee shall haue an Action for them , and for entrie into the Church-yard or Glebe . And if he be eiected out of 38. H. 6. 2● . his Church , and another take the profits , he may haue an assise of the Rectorie , Church yard , and Glebe : for it is his Freehold .

Prescription here is of no force . For it maketh no right in land , but in rent or profit Doct. Stud. 16. out of land .

Prerogatiue .

All land is holden of the King immedidiately , or by meanes : himselfe hauing not 50. Ass. pl. 1. 18 El. Ploy. 498. any higher vpon earth , of whom to hold .

Escheates of all cities appertaine vnto 8 E. 3. Escheat 12. 8. El. Ploy. 314. the King All mines of gold and siluer or wherin the gold and siluer is of the greater value , are the Kings .

Among coparceners the eldest vpon partition 14. H. 3. stat. Hib. doth so recite it . shall haue the chiefe house .

Seisin deliuered of land , we cal it liuerie of seisin ; & the making of the estate wee call a feoffement , alwaies passeth a Free Lit. 137. hold , though he be but Tenant for yeares , at will , or sufferance , that maketh it . And 4. E 6. Ploy 25. Lit. 12. otherwise a free hold of land cannot passe saue by release (a) (a) Lit. 109. & confirmation , (b) (b) Lit. 121. where they were by way of inlarging an estate . As a lease for yeares , and afterwards release or confirme to the Lessee , to haue and to hold to him for life , or to him & the heires of his bodie , or to him and to his heirs , &c. for a feossement with liuerie made by one to his Tenant (c) (c) 22. H 6 43. at will , or (d) (d) 22. E. 4. 38. for yeares , is void , except it be by Deede , and then it shall inure by way of confirmation .

Exchanges , (e) (e) Lit. 13. indowments , (f) (f) Br. Dower 7. & surrenders . (g) (g) 44. Ass pl. 3.

Liuerie within the view , so we call An estate made within view of the land , bee it by deliuerie of a Deed of feoffment within 38. E. 3. 11. the view , or otherwise , is a good Liuerie of seisin , if the other enter in the feoffors life time : else the land discendeth to the heire of 2. H. 8. Br. feoff . ●0 the feoffor , and the feoffment shall neuer effect .

CHAP. 5.

Of Aduowsons .

ADuowson is the interest of presenting 15. H 7. 8. to a Church .

And this also lieth in tenure . For a common person may giue it to hold of him . And the Writ of Right of Aduowson is , Quod clamat tenere de te .

CHAP. 6.

Of Seigniories .

HItherto of Tenements .

Bare Hereditaments are those which are not holden , and concerne the land or persons .

Those that concerne the land , are extinguished or gon for euer when he that hath them hath also the possession of the Land that they concerne , in as high and continuing an estate as hee hath the hereditaments :

Otherwise they are but suspended or gon for the time .

As if the Lord purchase the Tenancie in 34. Ass pl. 15. fee , and though it bee to him and another , and that other suruiue For his estate is as high in the tenancie as it was in the seigniorie .

But if one that hath a rent charge in fee , grant it for life to the Tenant in fee of the land , ot in fee to the Tenant for life , of the land , that is by a suspension of the rent . And therefore (a) (a) Abridgment of Assises in the first case it may be with a remainder ouer , and (b) (b) Park . in the second the Tenant may grant it in his life , & his heire shall haue it after his death . For the estate was not so high in the one as in the other .

So if a man that hath a rent charge in fee going out of land , entermarrie with a woman Tenant in fee of the land : or if the Tenant infeoffe his Lord vpon Condition . For there in the first case the husband may 5. E. 3. 16. grant this rent , notwithstanding the entermarriage : and in the second case , if the tenant Park . 19 : enter for the condition broken , the seigniorie is reuiued . For the estates are alike perdurable .

These are leuiable by distresse , or such as cannot be distreyned for .

Distresse is a taking of chattels As (a) (a) 2. H. 4. 15. a Cart full of Corne , a fold (b) (b) 20. E. 4. 3. of Sheepe , &c. a (c) (c) 14. H. 8. 25. Mill stone , &c. if it bee not part of the Mill , though it bee fixed to a piece of timber with nailes , windowes , and dores , when they are remoued off from the hookes . But a Mill-stone , though it be lifted vp to be picked and beaten : yet so long as it lieth vpon the other stone , remaineth parcell of the mill , and cannot bee distrained . No more can windows and dores hanging vpon the hookes , though they bee remoueable , found vpon the same land , but in 9. H. 6. 9. 13. E. 4. 6. other land not holden of him , hee cannot distrein for his seigniorie except it be by the Tenants grant , for satisfaction of arrerages for dismes let reseruing a rent , cannot be distreyned for the rent , not when they are seuered from the ninth part , in as much as 11. H. 4 40. there is no distresse but vpon Land in Demesne , neither could a distres be taken vpon 3. Mar. Pl. 154. ● Pistarie , but that it containeth land and demesnes .

Prerogatiue .

The King may distreine in another 9. H. 6. 9. 13. E. 4 6. land of the same mans for his seigniorie or rent charge , but so shall not his Grauntee . 9. H. 6 9. is , That a common person cannot distreyne for his seigniorie , but in the land holden of him , except it be by his Tenants grant . But the King may in any place . 13. E. 4. 6. is , That the King for his seruices or for a rent charge , may distreine in al his Tenants lands . But so shall not the Kings Grantee .

Statutes .

Marlb . cap. 15. Distresses shal not be taken in the High way or Common streete ; but by the King or his Officers hauing speciall authoritie .

Artic Cler. ca. 9. Nor in the antient fees of Churches .

The distresse being put in pounde ouert , or open pound ; that is , some place where the owner may lawfully come at them , as if they be things that haue life , to giue them meate &c he that distraineth shall not bee 9. E. 4 2. charged , what hurt soeuer they receiue . for quick Chattel must be put in pound ouert , that the owner may giue them sustenance : dead , neede not . But if they be marred in his default that distreyneth , he shal answer for them .

Statutes .

Marlb . cap. 4. None shall leade distresse out of the Countie where they were taken . The neighbor that doth it to his neighbor , shall be fined . The Lord that doth it to his Tenant , shall be amerced .

1. & 2. Phil. & Mar̄ cap 12. No distresse of Cattell shall be driuen out of that hundred , rape , wapentake , or lat● , where it was taken : except to a pound ouert within the Shire , not aboue three miles from the place where it was taken . No distresse taken at one time shal be impounded at seueral places , wherby the owners shal be constrained to sue seuerall repleuies , the paine of both these v. l. and treble damages . No person shal take aboue iiij . d. for the poundage for any whole distresse impounded : & where lesse hath beene vsed , there to take lesse , vpon paine of v. l. and losse of the money hee he hath taken aboue iiij . d. any prescription notwithstanding .

Bare heredieaments that may bee distrained for , are a Seigniorie , & Rent-charge .

Seigniories are seruices wherby lands are holden .

Seruices are common to all certaine Estates , or proper to Inheritances .

Common , as fealtie , and rent seruice , whereof fealtie is incident to euerie such estate . For Lessee for life or yeares , shal do Li●●tlet . 29. fealtie of common right .

But Tenant at will shall not , because he hath no sure estate . And therefore the seigniorie Lit. 23. or tenancie being altered ( whether by discent or grant ) it must be done anew .

All other both common and proper ) grow by reseruation .

Fealtie is an oth to be faithfull to his Lit. 19. Lord for the tenements .

Rent seruice is a rent to bee paid to the Lord at certain set times .

And to this place we may referre al seruices that lie in fesance . As to be ones butler , Park 12. to couer his house , to scoure his ditches , &c. But a reseruation of things in prender or vser , as to haue Common for foure beeues , or foure cart loads of wood , maketh no Tenure .

Of which kind , two among the rest are specially to be considered ; that is to say , franke almoigne and diuine seruice .

Franke almoigne is , when a man of the Church holdeth freely in almes : For if an Abbot , tenant in Franke almoigne , alien to Littlet : 31. a secular man , he shal do fealty to the Lord , because a secular man cannot hold in frank 7. E. 4. 10. almoigne . And the Tenant in this case holdeth of the Donour , and is within his fee . For the Kings grantee of straies infra seoda sua shall haue them in lands holden of him in franke almoine . And the tenant shall haue against him a Writ of mesne , or Ne iniuste vexes . And if the Abbot tenant in franke Almoine , and all the monkes die , the lord shal haue the escheat ; for the which he is bound to say prayers , & these prayers are the seruices But because the prayers are not limitted in certaine , hée neither shall doe fealtie , nor is subiect to distresse or Cessauit , if they be not done .

The Lord must warrant such a tenant against himselfe and his heires , and saue 7. E. 2. ga● 79. Lit. 32. for aquit . him harmelesse of all manner of seruices against the Lords aboue , which wee call acquitaile .

Diuine seruice is a spiritual kind of seruice Litt. 30. limitted in certaine . As to distribute in almes to an hundred poore men , an hundred pence , &c.

These are the seruices whereby euerie certaine estace may be holden .

There follow those proper to Inheritances .

The grantee whereof shall hold of the grantor by such seruices as he holdeth ouer , if other seruices bee not reserued . As if Park . 134. there be Lord , and tenant by Knights seruice , and the tenant before the Statute of Quia emptores terrarum infeoffe a stranger of the Tenancie , without any thing reseruing : Now the feoffee and his heires shall hold of the feoffor & his heirs by Knights seruice .

Or the grantor may appoint him to hold of the next Lord . As if before the Statute of Quia emptores terrarum , there were Lord mesne and Tenant , and the tenant infeoffe a stranger to hold of the mesne ; this is good , and the feoffee shall hold of the mesne by the same seruice that his feoffor held , and the feoffor cannot reserue new seruices , for to them the mesne is a stranger . But if the feoffement were to hold of the Lord paramont , that were void . So if the feoffment were to hold of any other stranger .

Statutes .

18 E. 1. Quia emptores terrarum . In all feoffements to one and his heires , the feoffee shall hold his land of the chief Lord of the fees by the same seruices that the feoffor held before . If the feofment be made of parcell he shall hold of the chief Lord pro particula , according to the quantitie of the land , & the feoffor set free for the part .

A mesne , that is , he that holdeth ouer if it be by no greater seruices than the tenant holdeth of him , we cal it oueltie of seruices , whether they be the same as each of other by xx . s. or lesse as he by xx s. and the tenant of him by xxx . s. must acquite the tenant of all maner of seruices against the lords paramout .

But Donees in franke-marriage cannot hold but by fealty . And therefore a gift in franke-marriage , rendring a rent , the 4 H. 6. 22. reseruation is void , for it is contrary to the nature of a franke-marriage , which is , to render nothing till the fourth degree bee past . Some thinke the reseruation good , and the franke-marriage therby destroyed . Old tenures , Fol. 7. But all agree , that the franck-marriage and the reseruation cannot stand together . And that of the donor till the fourth degree be 17. E. ● . past . And therefore a gift in frank-marriage , the remainder in tail to a stranger , is a good frank-marriage , for the reuersion of the fee is in the donor , which maketh a tenure betweene them : otherwise it is , if the remainder were in fee . who must also Littlet . 4. acquit them of all manner of seruices . And therefore the Donees in frank-marriage 12. H. 4. ● . may haue a Writ of Mesne .

Prerogatiue .

One that holdeth of the King , as of his 30. H. 8. Dy. 44. person , which is a tenure in chiefe . But if a Prince of Wales , before Statute of Quia emptores terrarum , make a feoffement to hold of his person , and after is made King , this is no tenure in chiefe , for a tenure in chiefe is the higest & most honourable seruice in law , because it is to the chiefe head of the body of the Realme , and therefore must be immediate vnto the King , & take his originall creation from the King himselfe , not from a subiect . So to hold of the King , as of his honour of Gloucester is no tenure in chief ; for it is not of the Kings person , alienating the Freehold without ( a ) 14. E. 3. Q ▪ impedit . 54. licence , forfeiteth the Land .

Statutes .

Mag Chart. cap. 31. By a common Escheat . of a Baronie , &c. to the king , the Tenant shall not hold in chiefe .

1. E. 6. cap 4. No more when a Seigniorie commeth to the King by treason or dissolution .

1 E 3 cap. 12. The King from henceforth shall not hold as forfeit such lands if they be alienated , but shall haue a fine for them in the Chancerie .

Seruices proper to estates of inheritances , are homage and suite of Court. For Tenant for life shall not Let. 19. doe nor take homage , but onely tenant in fee simple or in taile , in his owne or anothers right . As the husband for lands that he so holdeth in the right of his Wife , if he haue an issue by her , shall doe homage in her life time ; but not after her death , if he holds himselfe in as Tenant by curtesie . Neither can a man at this day make a mannor 23. H 8. Br. comprise 31. notwithstanding that he giue Land to many seuerally in taile , to hold of him by seruices & suite of Court , for he may make a tenure but not a Court , for a Court cannot bee but by continuance time out of mind .

Homage is an oth of fidelitie , acknowledging Lit. 18. himselfe to bee the Lords man : wherein the tenant must bee vngirt , vncouered , kneele vpon both knees , and hold both his hands together between the lords hands sitting before him . This is to bee Lit 9. done onely to the Lord himselfe . But the Lords Steward or Bailife may take fealtie Lit ibid. for him , and but once during the Tenants ( a ) Lit. 33. b. 24. H. 8. Br. Br. foaltie 8. life . So as hauing done it once , he neither shall doe it againe to the heire of the Lord , or grantee of the seruices , nor to the same Lord , if other lands doe afterwards discend to the Tenant that are holden by homage of him . And though it bee in the Kings case .

Prerogatiue .

The Kings Chamberlain shall take homage F. N. B. 256. ● . for him .

Statutes .

33. H. 8. cap. 22. A fee set downe for respiting 14 H 3 Stat. Hib. so reciteth it . of homage in the Exchequer or other Courts .

When an inheritance descendeth to coparceners , the eldest onely shall doe homage ,

Prerogatiue .

But if they hold of the King , all of them must doe it .

When one and his Ancestors , whose heire he is , haue held by homage of a Lord and his Ancestors , whose heire the Lord is , time out of minde , and the Lord hath receiued homage , for the Alienee of Tenant Lit. 33. by homage ancestrell , holdeth not by homage ancestrell , nor shall haue warrantie from the Lord , because the continuance of the tenancie in the Tenant is discontinued . No more shall the Tenant himselfe by homage ancestrel , if he alien in fee , and afterwards take it backe againe . And if the Lord by homage auncestrell 18 H. 6. 2. grant his seignorie , the Tenant neede not atturne , vnlesse the grauntee will warrant the land to the Tenant and his heires , for otherwise his warranty were lost , because by atturnment the homage auncestrell is destroyed . that bindeth him to warrant 45 E 3. 23. and acquit the Tenant . And the tenant 11 H 4. 52. may haue a Writ of mesne . But if the Lord Lit. 33. haue not receiued homage , he is not bound . Therefore such a one may compell the Lord to receiue his homage by a Writ de homagio capiendo . 45 E. 3. 13.

Suit of court is a seruice by comming to the Lords Court . For suit of Court Old tenures . F●l . vlt. one shall bee distreyned and not amerced , which prooueth it to bee suit seruice . But for a suit reall ( which is to come to the Leet ) he shall be amerced and not distreined : yet a tenure to come to a leet or hundred , 12. H. 7. 17 : and to doe there some speciall seruice , as to be a Crier , &c. is a good seruice , but not sute seruice . And euerie sute seruice is d. 21. E. 4. 25 ▪ intended to a Court Baron .

Land in the Lords hands ( whereof seuerall men hold by suit of Court ) is termed a Mannor : the land considered apart from the seruice , is termed demesnes .

Statutes .

Marl. ca 9. None shall be distreined to doe suite of Court vnlesse he bee specially bound to it by his Charter of feoffement ; except such as they or their ancestors were woont to doe it , fortie yeares before the making of this Statute , whether they were infeoffed by deed or without .

The eldest Coparcener shall onely doe suite of Court , and the other parceners contribute . And where there be many feoffees , the Lord shall haue but one suite , and the feoffees contribute .

The particular kinds of seruices ( wherby lands of inheritance are distinguished ) be Socage and Knights seruice : both draw vnto them certaine commodities to the Lord , partly in the tenants life , and partly after his death .

That in his life is a reasonable aide or portion towards the making of the Lords eldest Sonne a Knight ; and towards the marrying of his eldest daughter . It is called ayd pur faire fits Chiualier , 40. E. 3. 22. and pur file marier . And if the Lord confirm to his tenant to hold by fealtie and certain rent , releasing all other seruices and demands ; yet hee shall haue reasonable aide , for it is incident to the seruices , and not released by those words .

Statutes .

Westm 1. cap. 31. Reasonable aide shall be twentie shillings for a whole Knights fee , and as much for xx . l. land in Socage : & so after the rate of more , more , and of lesse , lesse . The time of leuying it to make his sonne Knight , must be when he is fifteene yeares old ; to marrie his daughter when she is seuen . If the father after the aid leuied die before he marrie his daughter ; the fathers Executors shall bee charged to the daughter of so much as the father receiued , or his heire , if his goods be not sufficient .

25. E. 3. cap. 11. Reasonable aid to make the kings eldest son a knight , or to mary his eldest daughter , shall be leuied of all Land holden of the King , without mean , according to the rate in the former statute .

The other after his death are Wardship , and reliefe .

Wardship is the custedie of the bodie & Land of the heire within age , which shall Fitz. gard 67. be till xiiij . of a woman .

Reliefe is a portion to be paide by the heire to the Lord .

Socage is a tenure to be don out of war : Lit. chap. of Socage . As if one hold by fealtie onely , or by fealty and certain rent , or by homage and fealty , or by homage , fealtie , and rent for all manner of seruices , or by escuage certaine , that is to say , by paying a certain summe of monie , as halfe a Marke , &c. and no more or lesse ( howsoeuer the Parliament assesse it ) towards finding of a man for the war when the King makes a voyage royall towards the Scots , &c. or by paying a certaine Rent for Castle-ward , &c.

Where the next of Kinne , to whom the inheritance cannot discend , As if land discended of the part of the father , then the mother , or next cosine of the mothers side : if of the part of the mother , then the father , or next friend of the fathers side shall haue the heires wardship till xiiij . to the Heires owne vse . And therefore must render an account to the heire at his full age , of the issues and profits of his lands , & of the value of his marriage , if he marrie him within fourteene yeares of age . And if he die before the heires age of fourteene , yet his executor shall not haue the Wardship ; no more shall the husband after the death of his wife , Gardian in Socage . But if the wife be Gardian in Socage , and the husband ( or they both by indenture ) let the land ; yet the wife after her husbands death may enter : for in as much as she hath it onely in the right , and to the vse and benefit of the Infant , the ordering and directing of this land shall not be taken from her by any act of her husband .

Statutes .

Marleb cap. 17. Gardian in Socage may not do wast , exile , nor distruction , nor giue nor sell the marriage but to the commoditie of the heire .

Here for reliefe the Lord shall haue presently Littlet . ibid. so much as one yeares rent amounts vnto . As if the tenant hold of the Lord by Fealtie , and x. s. rent payable at certaine termes of the yeare ( as halfe yearly or quarterly ) then the Tenant shall pay vnto the Lord x. s. for reliefe ouer and aboue the x. s. that he shall pay for the rent , and that by & by , without tarrying till the day of payment of his rent , & of what age soeuer that the heire be .

Prerogatiue .

Tenure by Socage in chiefe giueth the King primer seisin , or the value of that land 33. H. 8. Br. Liuerie & onster lomaine 60. Stamf. prer . c. 35. H. 6. 52. F. N. B. 250. by a yere , if the heire be of the age of xiiij at his ancestors death : therfore there the heire shal be driuen to sue his liuerie , but not if he be vnder xiiij , at the death of his ancestor . And if being vnder xiiij he sue his liuerie , it shall be vna cum exhibibus ; but not if hee sue it at xiiij . If one hold of the Kings person to doe something concerning war , but not to be performed by the person of a man , as to giue him yearely a bow , sword , dagger , &c. it is called pettie Sergeantie , and is but a tenure in Socage .

Knights Seruice is a seruice touching Lit. chap. of knight-seruice . war to be don by the body of a man . As if one hold by Escuage vncertaine , that is to say , by being himself or some other for him with the King 40 dayes well and conveniently arrayed for the warre ( if he hold by a whole knights fee ; or 20 dayes if hee hold by the moity of a knights fee , & so by proportion ) whensoeuer the King maketh a voyage royal into Scotland , &c. else to pay so much mony as shall be assessed by parliament . F. N. B. 83. c. Or if a man hold of any Lord to keepe his Castle in time of warre ( which is called Castle-gard ) or to blow a Horne in time of inuasion by enemies , which is called Cornage .

To all knights seruice homage is incident , 7. E. 4. 28. but not vnto Socage . Here the Lordship is the (a) (a) Littlet . 22. Lords (b) (b) Lit. 72. to his own vse , Therfore his executors shal haue the ward during the heires nonage (c) (c) Br. gard 111 ▪ & that til xxj of an heire male . And therfore if the lord marie a male that is his ward , before 21. yet he shal be in ward for the land til that age .

Statutes .

Mag chart . ca. 3. The lord shal take Homage of the heire before he haue wardship .

Marl c. 6. If one infeoffe his heirs within age to cause the lord to lose his Wardship , & die , yet the lord shal haue the wardship .

So when a fraudulent feoffement is made by a Tenant , vpon condition to reuers , after certaine yeares , to him or his heires , if the feoffees pay not a certaine summe , to the value , or more than the value of the Land . In this case the Lord shall haue a Writ , de custodia reddenda ; and if ( being able to auerre this matter ) hee recouer , yet the feoffees shall haue the Land againe , when the heires come to age . The Lord not being able to auerre this , shall render the feoffees their costs and damages .

32. H. 8. Cap. 1. Two Iointenants or more , and the heires of one holding of the King , and he that fee dieth , the King shall presently haue the wardship and marriage of the body of his heire , if hee be within age . Sauing to euery woman her dower of two parts of those lands , deuided from the third part , as aboue said , and not otherwise , and sauing to the King during the Wards minority , the reuersion of such Iointenants , and Tenants in dower .

Magna Chart. Cap. 3. The heire being made Knight within age , yet the land shall remaine in the Lords custodie to the end of the tearme .

The wife shall be barted of her dower , both dower (a) (a) 2 H. 7. 6. at the Common law , and dower (b) (b) 4 H. 3. dower . 174. ex assensu patris , or , (c) (c) 11 H. 3. dower 187. ad ostium ecclesiae , so long as she deteineth the heire from him . But in pleading she must shew 2 H. 7. 6. the heires name , and whether it be male or female .

Wardship of the bodie giueth the Wards 2 H. 7. 9. marriage to the Lord , as a thing of meere right , pertaining to him . And that whether he will be married by the Lord or not .

Statutes .

Merton . Cap. 7. The Lord marrying the heire within foureteene yeares of age , in such sort as he be disparaged , shall loose the custodie and whole commodity of the wardship , if the Wards friends complaine of it .

The heire full of age shall satisfie his lord for the value of his marriage , as much as any man would giue , before hee receiue his land .

Merton . Cap. 6. An heire , after foureteene yeares of age , marrying himselfe without the Lords licence ( who tendreth to him a couenable marriage ) the lord shall hold the land , after the heires full age of one and twentie years , so long till he may receiue the double value of the marriage .

Westm. 1. Cap. 22. The Lord may hold the land of heirs females , two yeares after their age of 14. within which two years , if he marry them not , they shall goe quite , without giuing any thing for the Wardship or marriage . And if they wil not accept a couenable mariage tendred by the lord , he shall hold the land til xxj and ouer , till hee haue taken the value of the marriage .

4. & 5. Phil. & Mar. cap. 18. A woman aboue xij , & vnder xvj , agreeing to a person that contracteth matrimony with her contrarie to the form of the stat. ( which see fo. 〈…〉 ) the next of her kinne to whom the Inheritance should come after her death , shal from the time of such assent , haue all the lands , &c. which he had at the time in possession , reuersion , or remainder during her life .

If one hold sundrie Lands of diuers Lords , the wardship of bodie goeth to the Lord of that land which the Tenant held first . Who is called a Lord by prioritie , and F. N. B. 142. the other by posteriority . And it is the feofment of the land which maketh the prioritie : for the pleading is , That hee holdeth this land of him per antiquius feoffamentum , then he holdeth the other land of the other . Therefore if the Tenant of Lands holden by prioritie , maketh a feoffement in fee , and take an estate backe againe in fee , this land shall bee holden by posterioritie . But if the lord by prioritie grant his seigniorie in fee , yet the tenure shall bee of the grantee by prioritie . So though the grantor take an estate of the Seigniory backe againe in fee .

Prerogatiue .

The King shal haue the wardship of bodie , 12. E. 3. prer . 23. though the tenure of him be by posterioritie . But his Grantee of the Seigniory shal not .

The eldest child (a) (a) 33. H. 6 55. whether son or daughter , being heire apparent to the father , shal not be in ward for his bodie during his fathers life . But if one hauing a sonne , take F. N B. 143. l. a wife seised of Knights seruice , and hath another sonne by her , and after the wife dieth : this second sonne shall be in ward during his fathers life , vnlesse the husband be intituled to be tenant by curtesie .

Prerogatiue .

Tenure by Knights seruice in chiefe , giueth to the King the wardship of all other Stamf prer . 1. The stat. of prer ▪ c. 1. 16. in this poynt but a declaration of the Common Law . lands also . And further , (a) (a) 33. H 8. Br. liuery ouster lemaine 66. primer seisin , or the value of them all by (b) (b) Stam prer. 14. halfe a yere ( if the heire were in ward ) by a whole yeare ( if he were not ) (c) (c) Br. Relief . 12. which primer seisine must be paid , and reliefe also .

Reliefe for land holden by Knights seruice , amounteth to an C. s for a whole Knights fee , to a C. marks for a Baronie ; and to an C. pounds for an Earledome .

Mag. Chart. cap. 12. calleth this old Reliefe , & according to the old custome of the fees , which proueth that statute to be but an affirmance of the Common Law .

If the heire be within age at the Tenants Old Nat. Bren per Br. releif . 13. death , no reliefe shall be paid to the lords that are to haue the Wardship . And if one hold of seuerall common persons by Knights seruice , the Lords by posterioritie shall haue no reliefe , because they are to haue the Wardship of the Land holden of them , though the Lord by prioritie onely 24 E. 3. 24. haue the wardship of the bodie . But if in that case there bee any Land holden by Knights-seruice in chiefe , the heire at his full age shal pay reliefe to the other lords . For there the King hath the Wardship of all his lands .

Prerogatiue .

Grand Sergeantie , that is to say , Tenure ● . 33. H 8. Dy. 44. of the Kings person , for euerie grand Serieantie is a tenure in chief , being of none but of the King , to doe vnto him a more speciall seruice whatsoeuer by the person of a man , as to beare his banner or Lance , Lit. 34. to lead his horse , to carrie the sword before him at his coronation , to be his sewer , butler , or caruer , to be one of the chamberlains of the receits of the Exchequer , or to finde a man to war for him whersoeuer within the foure Seas , for if he can find none to do the seruice for him , he must doe it himselfe , is a b. 11. H. 4. 72. Lit 36. special knights seruice in chiefe , where the ( d ) Lit. 35. 11. H. 4. 72. king in stead of reliefe , shal haue the value of the Land by a yeare .

CHAP. 7.

Of Rent-charge . Lit. 48.

REnt charge is a rent with libertie to distraine . As when a man seised of land granteth by a Deede Polle , or by Indenture , a yearely rent going out of the same Land to another in fee or in fee taile , or for terme of life &c. with clause of distresse ▪ or maketh a feoffement in fee by Indenture , reseruing to himselfe a certaine yearly rent , with clause of distresse .

CHAP. 8.

Of Rent Secke .

BAre hereditaments concerning land ( for which no distresse can be taken ) are a Rent secke and common .

A Rent Secke is a Rent without Lit. 48. libertie to distreyne . As where a Rent is so granted or reserued as before , without clause of distresse .

When a Rent is granted for equalitie of partion among Coparceners , As vpon two houses , one worth xx . s. a yeare , the other worth x. s. allotted one to the one coparcener , the other to the other ; & that coparcener that hath the house worth xx . s. a yeare , to pay v. s. yearely to the other , this rent may be distrained for though no such libertie be granted .

The grant of a seigniorie , rent charge , & rent seck , as also of the remainder or reuersion of any of these , or of the land it selfe , is nothing worth without Attornement , that is to say , the agreement of the tenant that presently must be charged . As Lord , mesne , and tenant ; the Lord grants his seigniory , Lit. cha . atturemēt . the Mesne must atturne , and not the tenant parauaile : for the Mesne is Tenant to the Lord , Lord , and Tenant , the Tenant letteth the Land for life , or giueth in Taile , sauing the reuersion to himselfe : now if the Lord grant his seigniorie , he in the reuersion must returne to the grantee , & not the tenant for life or in taile : for he in the reuersion is tenant to the Lord , and not the other . But if the Tenant had let his land to one for life , the remainder in fee , there vpon a grant of the seigniorie , the Tenaunt for life must atturne ; for he is tenant to the Lord . So is not he in the remainder , whilst Tenant for terme of life liueth . If lands be let for yeares , or giuen in taile , sauing the reuersion : Vpon a Graunt of the reuersion , the Tenant of the land must atturne . And an Attornement may either be by words ; as to say , I agree or am content with the Grant ; or I attorne to you , & become your Tenant by force of the grant : or else by deliuering to the grantee , a penie , halfe penie , or farthing in name of Attornment , or by any other matter implying an agreement , as a surrender to the grantee of the reuersion , praying in aide of him , &c. And if such attornment be not to the grantee in the life of the grantor , the Graunt is meerely void .

In the grant of a reuersion depending Lit. 128. vpon a Freehold , the Attornement of the Freeholder is sufficient , though hee be not the tenant that presently must bee charged . As if lands be let to a man for yeres , the remainder to another for life , and he in the reuersion grant his reuersion to another ; the Attornement of him in the remainder is sufficient .

CHAP. 9.

Of Common .

COmmon is a profit to bee taken in anothers land . As (a) (a) 9. H. 6. 35. feeding his beasts , &c. And if a man giue to I. S. in frank mariage with his daughter , Common for all his beasts , or other mens ( if hee should haue none of his own ) to doe his businesse yearely , & to feed with the beasts of the grantor where they should goe : there if the grauntor come afterwards to haue no beasts , yet the Grantee shall haue his common . But if the graunt bee wheresoeuer the beasts of the grauntor go , &c. there the grantee shall not haue common , but when the others beasts are in common . Also vpon a grant of common throughout a mannor , yet hee shall not common in gardein , or land sowed , &c. nor take his common with beasts that are ● E 2. dower 123. not commonable , as hogs , &c.

So of a common of estouers , that is to say , taking of reasonable house-boote , and hay-boote , &c. And such manner of profits Ibid. 2. E. 2. ( though they be appendant to the freehold ) cannot be parted . For if such an heritage discend to parceners , one shall haue the whole profits , and the other Sisters an allowance . And the wife for her dower shall haue but an allowance onely .

Statutes .

Merton Cap. 4. The Lord of wast woods and pastures , may approoue against his Tenant , if he leaue sufficient common and pasture to his Tenant , with egresse and regresse according to his land .

Westm. 2. Cap. 46. Such a Lord may approoue in like sort against his neighbours which haue common appurtenante , and for his Winde-mill ; necessarie increase of Court , or Court-lodge .

Hither belongeth chemin , or way ouer ones land from one certaine place to another , whether from close to close , or from his house , or the kings high street , or church . and other Hereditaments of like nature .

CHAP. 10.

Of Villeines .

BAre hereditaments that concern the person , or meerly of the persons themselues , or by reason of the person .

Of the first sort are villeines . A Villeine is such a seruant as himselfe , and whatsoeuer he possesseth , Land , 22. Ass. pl. 37. rent , &c. but not things in action , as an obligation , debt , couenant , or warranty made vnto him , is the Lords (a) (a) 3 H. 4. 15. if hee claime it . But the wife which the villein marrieth after his purchase of land , & before the Lord 19. E. 3. Dow. 171. enter , shall be indowed . And if he make a feoffment before the Lord enter , the feoffee shall retaine it , and his Executors shall haue the goods not claimed by the lords in his life time .

Statutes .

19. H. 7. cap. 15. Vpon a feoffement made to the vse of a villeine , the Lord may enter into the land it selfe .

Prerogatiue .

The Lord cannot seise his villein in the Kings presence . 27. Ass pl 49.

The children of a Villeine are also Villeines . And if one confesse himselfe a Villeine 18 E 4 30. b. 18 E 4 ibid. 19 H. 6. 32. in Court of Record , the issue hee had before are frank : but those born ( b ) after are villeines .

Villenage beginneth by confessing a mans selfe to be one in a Court of Record . 41. E , 3 villen 6. And therefore in a Praecipe quod reddat , if the Tenant say that he is Villeine to I. S. & holds the land in Villenage ; the demandant saith he is franke , &c. and he is found frank by the Iurie : yet he remaineth a Villein to I. S.

A Villeine is set free , we call it manumission or infranchisement , when the lord inableth him to possesse any thing against 11. H. 7. 13. Lit●tlet 45. himselfe . As by granting him an annuity , making an obligation or lease for yeres vnto him , or a feofment of any lands by deed , or without : & whether it be in fee simple , fee taile , or for life . But to make a lease at will vnto him , is no infranchisement : for he hath no certaintie of his estate , seeing the Lord may put him out when he will .

Statutes .

9 Ric. 2. cap , 2. In a suite by the Villeine against his lord , the lords shall not be barred of their villeins , because of their answer in Law .

CHAP. 11.

Of Annuitie .

THose by reason of the person , are Annutties , and Corrodies , or Office .

Annuitie is a yearely rent to be Lit. 48. had of the person of the Grantour . As vpon an annuitie granted , or a rent out of his coffers , or a rent out of land , without saying more . But if the Deed be , That if A. be not yearely paid x. s. at Easter ; hee may distreine for it in the Mannour of D. This is a Rent-charge ( for the Mannor of D. is charged with a distresse ) but no annuitie : nor the person of the Grantor charged because he granteth not any rent , but granteth onely that he may distreyne . So if by expresse words he insert in the Deed of the grant of a Rent-charge , Prouiso quod non extendat ad oner andam personam meam per breue de annuitate , &c.

CHAP. 12.

Of Corrodie .

COrrodie is a partition for ones sustenance . Be it bread , ale , herring , a a. 25. Ass. pl. 7. b. 31. H. 6. 16. Ass. 16. yearely robe , or summe of money for the robe . So of a chamber and stable for my horses , when the same is coupled with other things , as with a certaine messes of flesh , bread , ale , &c. But a chamber and stable themselues are not any Corrodie . And in the first case they shall passe without liuerie and seisin , but not in the other .

CHAP. 13.

Of Office .

OFfice is a dutie of attendance vpon a charge . And therefore the grant of an office to an ignorant man that hath vtterly no skill at all , is meerely voyd . As if the king by his letters Patents make a Clark of the 5. E. 4 Rot. 66. per Br. office 48. Crowne in the Kings Bench , which was neuer exercised in the Office , nor in any other Office there , & so vtterly insufficient to serue the King and his people ; the grant is voyd , and the Iustices may refuse him . So is the presentment of an vnlearned man to a Church , meerely void . Likewise the Non feasance and the not attendance vpon an 39 : H. 6 31. office , hath a Condition in Law annexed to it . As if the Marshall suffer but one voluntarily to escape 〈◊〉 he prisoners , it is a forfeiture . But in negligent escapes what shall make a forfeiture of the office , and what not , both for the number of negligent escapes , and for the greatnesse and smalnes of them ( as if some that escape were committed vnto him for surety of peace , & were suspitious men ) lieth wholly in the discretion of the Court : & the King may himself ● H. 7. 29. haue an office : as a forestship granted to one in taile , the remainder to the King , and his heires is good : for although he cannot in respect of the Maiestie of his person , exercise the office himselfe ; yet he may grant it ouer to one that may exercise it .

Statutes .

5. E. 6. cap. 16. The office or deputation of any office , or any part therof which concerneth the administration or execution of Iustice , or the receite , controllment , or payment of the Kings monie , &c. or suertie of the Kings lands or customes , or any administration of necessarie attendance in the Kings Custome-house , or the keeping of the Kings places of strength , or the Clarkship of any Court of Record , shall not bee bargained & sould , or any reward or agreement of reward taken for it , vpon pain , that the seller , &c. shall forfeit all his interest in the office or deputation , &c. And the buyer be a disabled person , to occupie or inioy the same : And all bonds , &c. to bee voide , as against him by whom they are made . Prouided , That all Acts executed by any person offending before he be remooued from his office , &c. shall remaine good .

This Statute extendeth not to any office of inheritance , nor to any Parkership , nor to any offices to be giuen by the chiefe Iustices of the Kings bench , or Common place , or by any Iustices of Assise .

CHAP. 14.

Of Franchises .

BEside the Hereditaments alreadie handled (a) (a) 15 E. 4. 7. 4 El Pl. 219. 6. F. 3 per 30 H. 8. Dy. 44. there be certaine other deriued from the Kings Prerogatiue , which are termed Franchises . For all Franchises are deriued from the Crowne : and therefore are extinguished if they come to the Crown againe , by escheat , forfeiture , &c. For the greater drownes the lesse .

A franchise is a royall priuiledge in the hands of a common person : so we cal euery subiect : and is forfeited by misusing of it . As keeping Faire or market vpon Monday 22 Ass pl. 34. when Wednesday is granted him : or keeping Faire vpon two daies when hee hath but one granted : for that is a misuser . ( But keeping market vpon a Monday and Wednesday , when only Wednesday is granted , is a forfeiture but of that which he vsurpes more than is granted ) Claiming a faire , &c. 2 H. 7. 11. for two dayes by Patent , when onely one is granted , is a forfeiture of both . But if he claime one by Patent , and another by Prescription , & this latter found against him ; yet he forfeiteth but that day onely . Misvsing 22. Ass. ibid. of any point , where there be many in one Franchise , is a forfeiture of them all . But not where the Franchises are seuerall . But non vser of a market , &c. is no forfeiture 2. H. 7. ibid. of it , as it is of the office of the Clarke of a Market , and such like , which of necessitie must be vsed .

Statutes .

27. H 8. cap. 24. No subiect shall haue authoritie to pardon any felonie , or any Accessaries to felonie , or any outlawrie for such offences . Nor to make any Iustices of Eyre , Assise , Peace , Gaole-deliuerie . All originall Writs , inditements of Treason , Felonie , and Trespasse , and Processe vpon the same , shall be onely in the Kings name . And the Teste in his name that hath the Franchise .

Euerie Writ and Enditement whereby a thing is supposed to be done against the Peace , shall be supposed to be done against the Kings peace onely , and not against the peace of any subiect .

The King shall haue all fines , issues , amerciaments , & forfeitures lost by any Officers of Franchises for non execution , or insufficient retornes of processe , or for any misdemeanor concerning their office , with many prouisoes in the same statute .

The kinds of Franchises are diuers , & almost infinite .

Of such sort are the libertie of hauing a Court of ones owne ; of drawing causes out 9. H. 7. 11. of the Kings Court into his owne . In the first case we call it tenere placita , when hee is to hold it before his bailif in such a place , and therein a man may prescribe . ( In the other case we call it Conisance of plea : and that lieth not in prescription but in demand , and is alwayes of Record ) of returning Writs , &c. Also Warrens which a man 35. H. 2. 〈…〉 . may haue in anothers land , as well by the Kings grant , as by Prescription . And if the King grant to one Warren in his land , and afterwards the grantee alien the land , reseruing the franchise . Markets , (a) (a) 2. H 7. 11. 22. Ass pl. 34. Fayres , tolle (b) (b) 9. H. 6. 45. of euerie buyer for things he buyeth there , not (c) (c) 28. Ass pl. 53. being for his own expences , For (d) (d) 9. H. 6 45. neither shall the seller pay toll , but the buyer : neither shall a man pay toll for the things he bringeth to the Faire , but for the things he selleth . But by custom he may for euerie thing brought to the Faire , & for his standing also . and whatsoeuer liberties & commodities else that ( created first by the kings special grant , or of their own nature belonging to him ) are giuen to common persons to haue any manner of estate in .

CHAP. 15.

Of Chattells : where , of Testaments .

SVch then is the nature of an hereditament in his sundrie sorts and kinds . Chattells are possessions wherein there cannot be seuerall estates .

All ones owne Chattels real , as (a) (a) 20. E 4. 9. a Lease for yeares , &c. and personall , as corn (b) (b) Park . 99. growing vpon land , but not trees , for they are parcell of the Freehold , &c. whether in possession , or that any is indebted to him in , but not those he is onely to recouer dammages for , as in goods taken from him , or to bee accounted for . ( c ) Neither c. 7. El. Pl. 290. could the Executor at the Common Law haue an action of account or trespasse De bonis asportatis in vita testatoris , may bee giuen away or deuised by his Testament . otherwise called his last Will : & the things deuised are Legacies .

Testament is an appointment of some person , whom we call an executor , to administer them for him after his death . For without naming Executors , or if they all 37. H 8. B. test. 20. refuse it , it is no Will at all : yet the legacies shall be paid in both cases , and the Testament annexed to the Letters of Administration . But is a good will of land though no Executor be named : for land is not Testamentarie And Administration is it which makes an Executorship : That if one 3. N. 67. make three Executors , and will that none shall administer but onely one ; this one is sole Executor . Also this Administration is for the Testator and his vse , so as the Executors themselues cannot make their Will (a) (a) 19. El. Pl. 325 of these goods , nor (b) (b) 17. H. 8. 22. 21. H. 7. 29. partition between them , &c. nor the husband which marieth a wife that is an Executor , shall haue those goods by intermarriage with her : neither shal the Executors forfeit them by outlawrie . 10. E. 4. 1. Therefore Executors represent the person of the Testator . So as a villeine Executor may haue an Action of Debt against Littlet . 41. his Lord , for debt due to the Testator . And ( a ) 21 H. 6 30. outlarie Excommengement , &c. is no dishablement ( b ) 42 E. 3. 13. to bring an action as Executor . ( c ) 48. E. 3. 14. And all of them are but one person : wherevpon ( d ) 2. E. 3. Quid iuris clamat vpon it is , That the release or Attornment of one is good for both : that in an Action ( e ) Till the Statute 9 E. 3. cap. 3. brought against them , as debt , couenant , and such like ; one cannot answer without the other by course of the Common Law : and that they cannot haue euerie one by himselfe , a seueral plea in abatement of the Writ , &c. 36. H. 6. 17.

Yet their power , both for the time when , and the things which they shall administer , may well enough be diuided . As a man 32. H. 8. B. exe . 155 may make A. & B. his executors , & that A. shal not entermeddle during the life of B. or make one his Executor touching his goods in D. and another his Executor touching his goods in S.

Statutes .

32. H. 8. cap 1. He that hath Lands , Tenements , or hereditaments in Soccage , and none holden by Knight-seruice , or Soccage in chiefe , may deuise all by his Will in writing , or giue all by an Act executed in his life . So may he that hath land holden by Soccage in chief , & other holden of a common person by Soccage , & none holden by Knight seruice : sauing to the king , primer seisin , releife , suing of the same out of the Kings hands ; fines for alienation , &c. & al other duties for the Soccage in chief , as before hath beene accustomed .

He that hath land , &c. holden by Knight seruice ( whether he haue other lands holden of the King , or of any other person , by Knight seruice , or otherwise , or not ) may doe the like for two parts in three to be diuided in certaintie , for the aduancement of his wife , children , and payment of his debts . Sauing to the King the Wardship , or primer seisin , of the third part , without any charge , dower , &c. and fines for alienation .

He that hath lands , &c. holden by knight seruice ( whether of the King alone by a Knight Seruice not in chiefe , or of a Common person , or some holden of the King , some of a common person ) and other lands in Soccage , may deuise by Will , or giue by any Act executed in his life , two parts of that holden by knight seruice , and all the Soccage : Sauing to the Lord of the land holden by Knight Seruice , the Wardship of a full third part thereof , without any charge , dower , &c.

Prouided , That euerie one shal sue his liuerie , reliefe , and heriot , as if this Act had neuer been made .

34 H 8. cap. 5. The former Statute shall be extended to inhable deuises or other acts onely of lands in fee simple .

And if the partie that maketh the Will or other Act , be seised in Coparcenarie , or in Common , it shal be good for so much as in himselfe of right is .

The wardship , reliefe , primer seisin , &c. shall be of lands that discend immediately after the death of him that maketh the wil or other act , as well in fee-taile as in Fee-simple : and the deuise of two parts residue shall be good , though it be of all his fee simple lands . Such a will shal be good for two parts ( in case onely where two may be deuised ) though it made for the whole , or more than two parts .

Such Wils made by any woman couert , or person within xxj yeares of age , Ideot , or non sane memorie , shall not be good .

And so some other things there , for the explanation of the former statute .

Westm 2. cap. 23. Executors from henceforth shal haue a Writ of account , and like action and processe in the same Writ , as their Testator should if he had liued .

4 E. 3. cap. 7. Executors shall haue an Action for a trespasse done to their Testator : as of his goods and Chattels carried away in his life , and recouer their dammages in like manner as he whose executor he is should haue done if he had liued ,

The Executors must prooue (a) (a) 21. E. 4. 24. or make probate of the Will ( to be a true one ) in the Spirituall Court , and be (b) (b) 21. El. Pl. 54● sworne to see it performed .

If many Executors be made , and one refuse ; yet he may administer at his pleasure , 21. E. 4. 23. and the other must name him in euerie Action for any dutie due vnto the Testator , and his release shall be a barre of the whole dutie . And if he suruiue the other Executor , he shall haue the action , and not the Executor of him that died .

Otherwise it is if they al refuse , for there 36. H 69. the Testator dieth intestate .

But an Executor once administring , As 9. E. 4. 47. if he sell land in vse , appoints by the wil to be sould , and the mony to be disposed , &c. can neuer refuse after .

Executors must answer all certain duties of the Testators , But not for (a) (a) 11. H. 4 46. a trespasse done by him , burning of a Writing bailed vnto him by Deede indented ; receit (c) (c) F N. B. 117. ● . 2. H. 6. 12. of rents , or occupation of other mens lands , as Bailife , hauing sufficient of his Chattels which we call assets entermaines , to doe it . And therefore shall bee charged of their owne goods , if they waste the Testators .

But so , as duties that grow by specialtie 11. H. 7. 1● are to be answered before other duties , and legacies to be last of al deliuered : without 21. E. 4. 21. which deliuerie , the deuisee can neither enter (d) (d) 20. E. 4 9. into a Tearme , nor take (e) (e) 2 E. 4. 30. 37. H. 6. 30. a chattell personall deuised to him . But vpon a lease deuised for xx : yeares to one for the fi●h x. yeares , the remainder or remnant of the terme to another : or deuised to one for 20. El. Pl. 519. so many yeares as he shall liue , the remainder to another : a deliuerie to the first Deuisee serueth for him in the remainder also . 21. El. Pl. 539. So , though it be but the occupation of a term , which is so deuised : for the occupation and profits of the land is all one with land it selfe . But if the occupation of a Booke , 37 H. 6. 30. & per 20. El. Pl 521. glasse , or other Chattell personall bee deuised to one for life ; and after his death , to another in like sort : there a deliuerie to the first is no deliuerie to the other ; for their occupations are seuerall , and in such Chattels personall , the occupation is distinct from the propertie .

In these deuises the Testators intent ( standing with the rules of Law ) shall be taken . As where a man deuiseth Lands 1● . H. 7. 13. ( deuisible by Custome ) to his sonne and heire after his wiues death ; the wife hath an estate during her life , by implication , in the intent of the deuise . A deuise to one 27. H. 8. 27. and his heires males , is an estate taile . But 29. H. 8 Dy. 33. a deuise to I. S. in fee , vpon condition , if he pay not to I. D. a certaine summe of monie , then I. D. to haue it in fee ; is a voyde Condition and remainder , for it is contrarie to Law . But a deuise of the Fee-simple to Alice S. and after her death to B. is only 19. El. Dy. 357. an estate for life , the remainder for life to B the remainder to Alice in fee . So as the husband of Alice ( if she die in the life of B ) cannot be Tenant by Curtesie .

The Executor of an Executor , is Executor 10. E. 2. Ex●c . 110. to the first Testator , and may haue an Action of Debt for the arrerages of an Annuitie due vnto him .

Statutes .

25. E. 3. Cap. 5. Statut. 4. Executors of Executors shall haue Actions of Debt , Account , and of goods carried away of the first Testators : and execution of Statute merchants , and Recognisances made vnto him .

If no Will be made , the Ordinary shall administer al the chattels that were in his 7. El. Pl. 277. possessions . For he which had the charge of his Soule in his life , is presumed the fittest person to haue the care of disposing his goods in pios vsus after his death . And therefore the Ordinarie may seise the goods and must keepe them without wasting , & may giue , alien , or sel them at his wil , and dispose the monie comming therof ad pios vsus . And if he doe not so he breaketh the confidence which the law reposeth in him . But yet this gift or alienanation remaineth good by law . Howbeit being a spirituall gouernor he shall not be subiect to temporall suits , nor haue any Action of debt or otherwise for any thing due to or by the intestate .

Statutes .

Westm 2. cap. 19. The Ordinarie shall answer for debts wherein the Intestate was bound , as Executors should .

31. E. 3. cap. 11. The Ordinaries shall depute next friends of the intestate to administer his goods , who shal sue and be sued , and be accountable to the Ordinarie , s as Executors should .

21. H 8. cap. 5. Administration shall be committed to the widdow of the Intestate or to the next of his bloud , or to both , at the discretion of the Ordinarie . Where diuers persons next of the bloud ( which in deede are in equality of degree with the intestate ) claim administration , or wher one only claimeth it as next of the bloud ( where in truth diuers are in equalitie of kindred , as aforesaid ) the Ordinarie shal be at his choice to accept one or moe , making request . Where but one or more , and not all ( being in equalitie of kindred ) make request ; the Ordinarie shal be at libertie to admit the widdow , and him or those onely making request , or any one of them , at his pleasure . The Ordinarie shal commit administration according to the rule aforesaid , vpon paine of ten pound .

The Statute Magna Chart. Cap. 18. is , That the Kings debts shall be leuied of the dead mans goods , and the surplusage deliuered to the Executors Saluis pueris , & vxori rationabilibus partibus , which proueth that this rationabile parte was at the Common law .

But (a) (a) Magn. Charta cap. 28. 16. &c. v● in F. N. B 122. l. ● Br. ration part . 6. whether any Will be made or no , his wife , and such children as are not aduanced by him in his life ( as if a daughter be couenably married by him , this is a ( b ) 3. E. 3. d●t . 156 sufficient aduancement ) shall haue a part to their owne vse ; that is to say , one third of all ( after his debts payd ) to his wife , and the other to his children . And a Writ de rationabili parte bonorum is giuen to recouer it .

CHAP. 16.

Of Chattels reall .

CHattels , are Reall , or Personall . Reall ; as termes for yeares , and wardships , whereof wee haue spoken before .

CHAP. 17.

Of Chattels Personall .

PErsonall as Plate , Iewels , Siluer , Gold , Implements of houshold , Cattell , and all goods and moouables whatsoeuer , Corne sowen vpon the ground &c. For that is deuisible by will , shall be forfeited in outlary of Park . 99. 5. H. 7. 10. Debt or Trespasse .

The ownership of a chattell personall , is termed a propertie , which of wild beasts 3. H 6. 55. 12. H. 8. 3. 18. H. 8 2 For sowle of Warrein . both Fowles of the Aire , Fishes in the Sea , Beasts vpon the Earth , and generally all Fowle of Warrein , Feasants , Patridges , Deere , Conies , Hares , and such like cannot be in any , and therefore it is no felony 12 H 8. 3. 18 H. 8. 2. 3 H. 6 55. to steale them : and a writ of Trespasse shall be Quare warrenam suam intrauit & mille lepores cepit , without saying suos , Nor after they are made tame , longer than they remaine in ones possession . As my tame 12. H. 8. 3. Hound that followeth me , and is with my seruant ; my Hawk that is flying at a foule ; my Deere that is chased out of my Parke or Forest , and the Forester maketh fresh suit : 12. H. 8. 11. these all remaine in my possession , and the propertie is in me : but if they straie , it is 12. H. 8. 3. & 11. lawfull for any man to take them . Otherwise 18. H. 8. 2 it is of Hens , Capons , Geese , Duckes , Peacocks , &c.

Prerogatiue .

Treasure hid in (a) (a) Stamf. 10. the earth , not vpon the Earth , nor in the Sea , and (b) (b) 27 Ass. pl. 19. coyne though not hidden , being found (c) (c) 10. El Pl. 322 is the Kings : we call it Treasure-troue .

Cattell also that stray into anothers ( d ) 14 H 6. 5. land are the kings after a yere and a day , ( e ) 31 E. 3 estrar . 4 if being proclaimed at the Market in two ( f ) Br. Estray . 10. seueral townes next adioyning the owner ( g ) 33. H. 8. Br. Estray . 4. doe not claime them . For if a Lord keep a stray three quarters of a yere , and yet within the yeare it strayeth againe , and another Lord getteth it , the first Lord cannot take it againe : for till a yeare and a day past , & Proclamation made , he hath no propertie . And therefore the possession of the second Lord is good against him .

Goods wrecked are also his . Stamf. prer . 37. & D 〈…〉 B wreck● 3 that this was at the Common law .

Statutes .

West . 1. c. 4 Where a man , dog , or cat escape aliue out of ships , it shal be no wreck . But the things shall bee prised by the Sherife or Coroner , and deliuered to those of the Town where they be found , to answer for them . So as if any within the yere and day prooue that the goods be his , they shal be restored to him .

The King being Tenant in Common of an entier Chattell personall , shall haue 10. El. Pl. 322. the whole . As if an obligation be made to two , or two possessed of a horse , and one is attainted , the King shal haue the whole dutie of the Obligation , and the horse .

Goods that belong to an Alien enemie , (a) (a) 7. E 4. 13. 38. H 8. Br. deuisen 10. 8. 16. 20. any body may seise to his owne vse . But an Alien borne in amitie may haue propertie in goods , and buy and sell , & their bargaines good : and may also bring personall Actions .

The taking of goods by an Alien enemie 7. E. 4. 13 : in battaile , deuesteth the propertie from the owner ▪ if he come not before Sun set to claime them .

Church-wardens are inhabled to haue 12. H. 7. 27. goods to the behoofe of the Parish . For they are charged to find diuers things belonging to the Church , as ornaments , and such like : And therefore in reason they should be inhabled to purchase goods . And thereto extendeth their Corporation . And all the Church goods , as (a) (a) 8. E. 4. 6. bookes & ornaments , (b) (b) 11. H. 4. 12. bels hung vp in the Church , are theirs , and (c) (c) 11. H. 4. 12. they may haue an appeale of robberie of them , or a (d) (d) 8. E. 4. 6. trespasse , and count , to the dammage of the parishioners . But they cannot giue or release them , for 13. H. 7. 10. that is to the disaduantage of the Church . ( f ) 8. E. 4. 6. And if they do , the Parish may chuse new Church-wardens , who shall haue an Action of account against them . (g) (g) 12. H. 7. 27. But church-wardens are not inhabled to take a feoffement , a lease for life , or perhaps for yeares , or such other things as haue continuance .

CHAP. 18.

Of Baylement and Contracts .

TO Chattels personels , Bailement , and Contracts doe belong ; Baylement is a deliuerie of goods in possession , and is either to keep or imploy . To keepe when onely the custodie is committed to him , and is a simple Baylement or pledge .

A simple Baylement , when he receiueth them to keepe for another : whether it bee 5. H. 7. 18. for the Baylor to redeliuer him againe : in which case the Bailor may retake them without request : or for a stranger to bayle 1. E. 5. 2. them ouer to him . In which case , before such bayling ouer , the Bailor may countermand the Bailement , and command the Bailee to deliuer them him againe , & shall haue an account vpon refusall . For in neither of these cases the propertie is out of the Baylor .

A pledge is when he receiueth them in 5. H. 7. 1. assurance for another thing had of him at the time . As to take a chayne of gold for monie then deliuered , &c. but not for satisfying of a debt he oweth . But the propertie of the pledge remaineth in the owner ; For he shall beare it if it be casually lost or broken : and the other that hath the pledge shall not be attached by it , in asmuch as he is not owner .

The baylement of goods to imploy , is , when the Bailee hath the things themselues to vse to anothers profit . As to sell meliori modo quo poterit , &c. Where , if he sel that for xij . l. which is worth 1000. l. and refuse a better prise , the partie hath no remedie .

Contract is a mutual agreement for the verie propertie of personall things where the dutie growing vpon it canot be apportioned . As if I sell my owne horse and the horse of I. S. to one for x. l. and I. S. taketh his horse from the vendee , yet the vendee must pay me the whole x. l. Of this kind of contracts are buying and selling , borrowing and lending , and such like , and in all these cases an Action of Debt lieth .

The sale of another mans goods in open market ( we call it market ouert ) without Couine or notice whose they are , altereth the propertie if tolle be paid for it .

Hither belong certaine ( as it were ) contracts in Low , though not arising from the speciall agreement of the parties . As hee that findeth anothers goods is chargeable by reason of the possession to him that right hath : he that receiueth monie to ones vse , or to deliuer ouer to him , is chargeable as a receiuer . He that entreth into land of his owne head , and receiueth the profits of it , or parents that occupieth land purchased by an infant , are chargeable as Bailifes . And if a Liberate be deliuered to the Clarke of the Hamper , who hath assets in his hands , an Action of Debt lieth against him . So doth it vpon euerie iudgement .

CHAP. 19.

Of Accord and Arbitrement .

THese are the things which belong to Chattels personall in generall : for the interest of personall things , vncertaine , accord ( otherwise called a concord ) and arbitrement lie .

As of a trespasse done , for the dammages are vncertaine ; but of debt or dammage recouered in certain , it is otherwise , vnlesse it be ioyned with trespas or other things vncertaine : for then all put together , lie in arbitrement or concord . So of Wast , detinue of charters of land , which are things in the realtie , annuitie , &c. they lie not in arbitrement or concord .

Accord , is an agreement betwéene the parties themselues : not by meditation of friends ; for then it is an Arbitrement vpon a satisfaction executed : As for one 15. H. 6. accord . 1. at his owne cost to agree , I. S. and another , whom I. S. hath trespassed ; this may be a satisfaction to I. S. Otherwise it is , if hee doe but indeauour to agree to them . And this satisfaction must be executed : for a tender (a) (a) 17 E. 4. 8. of monie without payment , or an (b) (b) 6. H. 7. 11. agreement to pay monie at a day to come , is no satisfaction before the day come , and the monie be paid : nor shall be pleaded in barre of an Action of Trespasse : for vpon an Accord , the partie hath no meanes to compell him to pay it , as he hath vpon Arbitrement . But being paid at the day , it is a good plea if the other afterwards bring an Action .

Arbitrement is an award of satisfaction ( c ) 16. E. 4. 9. by others whom they chuse to iudge betweene them , As to arbitrate because A. 19. H. 6. 36. ( one of the parties ) hath done a greater trespasse to B. ( the other partie ) than B. hath to him ; therefore that A. should giue B. monie in satisfaction , and B. bee quit against him , is a good award . But that one shall be non suite in an Action , is not good ; for after non suite hee may begin againe , whereas the Arbitrement ( which must bee in some sort a satisfaction for the dammages ) ought in that respect to bee a determination of things awarded . where the award of a personall Chattell altereth the propertie thereof . So as hee may haue a detinue (a) (a) 2. El. Dy. 183. for it , or debt if it bee of monie , or such like , to hee paide for (b) (b) 16. E. 4. 9. a debt due , or (c) (c) 19. H. 6. 38. amends of a Trespasse . And therein an Arbitrement differeth from an Accord . But an award of an acre of land , &c. is not good vnlesse the acre be deliuered .

Et iam prima mei pars ex exacta laboris .
The third booke of Law.
CHAP. 1.

Of a wrong without force .

FOr of possessions ( the first & hardest part of Law ) wee haue hitherto spoken sufficiently . The other resteth , which ministreth Iustice in the punishment of offences .

An offence is the doing of any wrong . And is a wrong without force , or to the which force is coupled .

In those of the first kind , the offendor is to be amerced , or to pay a pettie summe of money to the King . And (a) (a) 38. E. 3. 31. 9. H. c. 2. if he be a lord of the Parliament ( whom we call a Pier of the Realme ) then a C. s. As if (b) (b) 38. E. 3. ibid. ones writ abate , or if in (c) (c) 9. H. 6. ibid. an Action of Trespasse against two , for hunting and taking two Deere , one Defendant bee found not guiltie , the other guiltie of taking only one Deere ; here the plaintife ( if he bee a Peere of the Realme ) shall be amerced CC. s one C. s against him that was found not guilty as all ; the other hundred shillings against him that was acquitted of one of the Deere .

The Kings wife shall neuer be amerced . 18. E. 3. 2. br. 355. And therefore a writ brought by her is good enough , though this clause , Si fecerit te securum , be left out , for she shal not be amerced for her non suite .

CHAP. 2.

Of Trespasses vpon the Case .

OFfences without force , are trespasses vpon the Case , or Reall wrongs .

Trespasse vpon the case is such an offence , whereby any thing is indammaged : And is a misuser or deceit .

Misuser , when by meere wrong it is indammaged . Of which kind there be manie , and those of diuers sorts . As if a man maliciously vtter any false slander to the indangering of one , in Law . As to say , He hath reported that monie is fallen ; for hee 9. El. Vttings case . shall be punished for such a report , if it bee false . The touching of him with some hainous crime , as that he hath gone about to Sir Th. Cokains case . get poison to kil the child that such a woman goeth with ( yet it is no felonie ; ) lien (a) (a) So it hath beene adiudged in waite to robbe him ; procured (b) (b) 26. El. Cracknel . 5. c. another , or agreed (c) (c) 33. El. Cebot against Haines adiudged . with another to murder him ( though he were not murdered in Deed ; ) (a) (a) 27 El Hacks c. sought his life for his land , &c. or the impairing his trade of life ; As to cal a marchant (b) (b) 27. El. Bartons case . bankerupt ( for it is his liuing , but so it is not of a gentleman ; ) an Attornie (c) (c) 26. El. Ambodexter , or to say that hee dealeth (d) (d) 27. El. Burc . c. corruptly . But in all such cases , words of choller and heate , as to call one cosoner , (e) (e) All th●se cases haue so beene adiudged or commonly receiued for Law . 13 H 7 per 11. El Dy. 285. 30. H 8. Br. Act. sur case 104. and craftie knaue , common extorcioner , and drunkard , witch , rogue , pillorie-knaue , villeine ( vnlesse hee say villeine to such a man , or regardant to such a manor ; ) words vttered in a suite in law , as to bring a writ of forger of false deeds against a nobleman , or any other ( though it be false ) will beare no Action ; for these are not maliciously . So if he be able to iustifie the words , for then ( g ) 7. El. Dy. 236. it is not falsely . As that he called him periured , by reason of a periurie committed in the Star-chamber , murderer , thief , or such like , vpon a Conuiction ; (f) (f) 31 El Nowels case but not vpon an Enditement or Common voice and fame , though the defendant himself suspect him . if one hauing another mans goods , (h) (h) It hath beene oftentimes adiudged , that in such cases the conuersion is trauersible . conuert them to his owne vse : if a (i) (i) 7. H 6. 5. & 17. El. in Mans●rs c. no action of debt lieth vpon it ( at the Common Law ) but an action of trespasse vpon the case . Sherife suffer one in execution for debt to goe at large : if a Smith (k) (k) 48. E. 3. 6. cloy my horse : but not if he take him to cure ( without warranting of him ) and doing all he can , yet the horse impaire . If being committed to the F. N. B. 93. H. Gaole , the Gaolet of malice put vpon me so many yrons , or otherwise vse me so hardly that I become lame therby , &c.

Statutes .

Westm 1. cap. 33. He that publisheth any false newes and tales , whereby discord , or occasion of discord and slander may grow betweene the King and his people , or the Nobles , shal be kept in prison vntil he hath brought him forth into the Court , that did speak the same .

2. R. 2. cap. 11. The like for him that telleth false lies of Nobles and great Officers of the Realme , whereby discord may arise betweene the said Lords and Commons .

12. Ric. 2. cap. 11. In the case of these former Statutes , if the party canot bring forth him that spake the same , he shall bee punished by the aduice of the Counsell .

But two aboue the rest do here require more speciall consideration ; that is to say , Disturbance , and Nusance .

Disturbance is the hindering of that which in right belongeth vnto one to doe . As for a man to vse his Common ; to reduce a water-course that is misturned , to present vnto a Church , &c.

Nusance is annoyance done to ones hereditament . F N. B. 184. a F. N. B. 184. d. As leuying a Faire or market to the Nusance of another Faire or Market , building a house so neere mine , that the rayn which falleth from that house falleth vpon mine , &c.

All manner of nusances are to be remoued , and common nusances , As a wall , (a) (a) 33. H 6. 26. &c. built vpon the High-way , trees (b) (b) 42. Ass pl. 5. growing vpon the riuer banke , whereby a water-course is stopped , any man may pull downe .

Deceit , when the dammage groweth by F. N B. in his writ of Deceite . an vndue sleight . As if a man purchase a writ in my name out of the chancerie , I not knowing of it , whereby I am to pay a fine ; or if one ( whom I make my Attornie in a plea of land against finee ) make default , whereby the land is lost : Or if in a Praecipe against diuers Tenants , a man purchaseth a protection for one of them , supposing him to be beyond-sea in the Kings seruice , where indeede he is and alwaies hath beene in England , by means wherof the demandant is delayed : or if in a Praecipe quod reddat , the Sherife returne the tenant summoned , where in deed he was not , whereby he looseth the land : or if in play one winne anothers monie with false dice , or if he that felleth any thing doe vpon the sale , warrant it to be thus and thus , whereby the other is deceiued . So that the warrantie must be parcell of the contract : for if it be (a) (a) 5. 7. 41. after , ( at another place ) or (b) (b) 11. E. 4. 6. a seruant make the warrantie vpon the sale of his masters goods ( which in law is the masters sale , & warrantie of the seruant ) it is a void Warrantie , and no Action of deceit lieth vpon it . Also the warantie can reach but to things in being at the time , not to things to come : as that a horse ( c ) will carrie you xxx miles a day : nor to things which ma● bee discerned by my fiue sences to be otherwise ; as cloths of murry color to be blew , vnlesse the buyer in this case bee blind . But where they are warranted to be of such a length , & are not , there an action of deceit lieth : for that canot bee discerned by sight , but by a colaterall proof , the measuring of them .

CHAP. 3.

Of certaine offences punishable by amercement by the K. Prerogatiue .

CEertaine offences against the law , are in nature of trespasses vpon the case , and by the kings prerogatiue punishable like to them . As suing an action without iust cause , or giuing iust cause of an Action : for (a) (a) So are all th● precedents . in euery action where the matter passeth against the plaintife ( be it by verdit , demurrer , or otherwise ) the plaintife is to be amerced , & the def. in det , detenue , couenant , repleuin , Quid iuris clamat , &c. (b) (b) 11. H. 4 45. but not in trespasse , for there he shal be fined & imprisoned . Non-suit (c) (c) 22. Ass pl. 32. in an action , (d) (d) 7 H ▪ 6. 36. 40. E. 3 20. fault in the original writ hee bringeth : or ( by the Sherif ) in the return of a writ : making (f) (f) 10 E 4 Br. amerciament 46. default when he should appeare . ( as the Iurors at the Habeas corpora ) and whatsoeuer other offences ( not beeing with force and armes ) which offer no direct iniurie to a common person .

CHAP. 4.

Of Discontinuance .

HItherto of Trespasses vpon the Case .

A reall wrong is that which medleth with the Freehold otherwise than it ought : and is a Discontinuance , or Ouster .

Discontinuance , when he that hath an estate Taile , or Fee-simple in anothers right , As the husband in right of his wife . A Deau sole seised in the right of his deanrie : Deane and Chapter , Gardeine , and Chapleines ; as also Maior , and comminaltie of lands in the right of their Corporation . maketh a larger estate of the land than he may . As by a Fine or feoffement for life of the lessee , in taile or in fee , which is called a discontinuance . But the Graunt of a rent , release , or confirmation to a lessee for yeres in fee , make no discontinuance , for they passe without liuerie , and therefore passe no greater estate than the Grauntor had .

Statutes .

32. H. 8. cap. 28. All Leases by deed indented for life or yeares , by any person of full age , hauing an estate in fee or in fee-taile , in his owne right , or in the right of his Church , or wife , or ioyntly with his wife , shall be perfectly good .

This extendeth not to Leases of land in the hands of any farmour , by vertue of any old Lease , vnlesse the same bee expired surrendred or ended within a yeare after the making of a new ; nor to the grant of any reuersion , nor to any lease of land which hath not most commonly beene let , or occupied in farme by the space of xx . yeares next before , nor to any lease made without impeachment of Wast , or made for aboue xx . yeares , or three liues from the day of making . And that there bee reserued yearely payable to the lessours , their heires and successours , according to their estates , the rent accustomably yeelded within twentie yeres next before : which heires and successors shall haue the like aduantage against the Lessees , their executors and assignes , as the Lessor himselfe might . Prouided the wife bee made party to euerie lease by the husband of any land of her inheritance The Lease to be made by Indenture in both their names , and shee to seale the same , and the rent to bee reserued to the husband and wife , and her heirs , according to her estate of inheritance .

13. Eliz Cap 10. All grants , Feoffements , Leases , and other conueyances and estates , by any Master or Fellows of a Colledge , Deane and Chapter , Master or Gardein of an Hospitall , Parson , Vicar , &c. other than for xxj years , or three liues , from the time of such lease or grant , reseruing the accustomable yearely rent , yearely payable , shall be void .

14. Eliz Cap. 11. The Statute 13. Eliz. Cap. 10. before , shall not extend to grant assurance , or lease of anie house in Citie , Borough , Towne corporate , or Market towne , or within the Suburbs , ( the same not being their dwelling house , or hauing aboue ten acres of ground belonging to it . ) Prouided the lease shall not be made in reuersion , and the accustomed yeerely rent shall be reserued , the Lessees charged with reparations , and it shall not bee aboue forty yeares . No alienation shall be of such houses , vnlesse that presently vpon such alienation there be an absolute purchase in fee simple of other Lands of as great value .

18. Eliz. Cap. 11. All leases made by such persons ( as 13. Eliz. Cap. 10. before ) where another lease for yeares is in being , not to bee expired , surrendred , or ended within three yeares next after the making of such new lease shall be void . All bonds & couenants for renewing or making of any lease , contrarie hereunto , or to 13. Eiz . Cap. 10. before , shall be void .

1. Eliz. not printed , the like ( as 13. Eliz. Cap. 10. before ) for Archbishops and Bishops , vnlesse it bee of estates made to the King , his heires and successors .

32. H. 8 : cap. 28. No fine , feoffement , or other Act by the husband onely , of any land being the inheritance or free-hold of the wife , shal be a discontinuance or preiudicial to the wife , or such as haue interest after her death : leases within the compasse of this Statute onely except .

Warrantie of an estate of inheritance , or for life , descending vpon him that ought to haue such estate , maketh a discontinuance . As if tenant in Taile of an Aduowson in grosse , suffer an vsurpation by six months , the release of a colateral ancestor with warrantie is a discontinuance , for hee hath fee by the vsurpation .

So it seemeth of a collateral ancestors release , with warrantie to the Grantee in fee of a rent or aduowson in grosse by Tenant in Taile . But if Tenant in Taile of a rent or aduowson in grosse grant it in fee , with warrantie ; this is no discontinuance , but at the pleasure of the issue .

Discontinuance taketh away the entrie of those that come to haue title after his death . If he ( whose entrie is barred by a discent or discontinuance ) haue the freehold cast vpon him by a new title , he shal be in of his ancient title : which is termed a remitter . As if the heire of the disseisor Lit 152. ( in by discent ) make a lease for life to I. S. the remainder for life or in fee to the disseisee , if Tenant in Taile discontinue , & then 11. E. 4. 1. disseise the discontinue , & die seised , whereby the lands discends to his issue ; if the husband make a feoffement in fee of land in 21. E. 3. 26. the right of his wife , and take backe an estate in fee to him and his wife . In these cases the disseisee after the death of I. S. the issue in Taile , and the wife suruiuing , her husband is remitted : but if the husband suruiue , her heire is not ; for there is another tenant of the Freehold , against whom he may bring his Action . And in the case of Tenant in taile before , though the heire of the Discontinue were within age at the time of the discent to the Issue in taile , yet his entrie is gone for eue , r by reason the Issue is remitted .

CHAP. 5.

Of Intrusion , Abatement , Disseisin , and vsurpation .

OVster is , when the Freeholder is ousted , or put out . And therefore it gaineth a Free-hold vnto the partie .

This ouster is of a freeholder in Deede , or in Law . Of the first sort are Intrusion , or Abatement .

Intrusion , which is after the death of Old Nat. Br. 135. Tenant for life , be it a mans own life , or another mans , Tenant in Dower , or by curtesie , &c.

Abatement , which is after the death of 5 H. 7. 6. one that hath the Inheritance , whether the land discend vnto his heire , or he die without heire .

Of the second sort are , Disseisin & vsurpation

Disseisin is the ousting of him that hath Lit. 62. a Free-hold in Deede : which of a rent or other profit is by the disturbing of him in the meanes of comming to it . As in euery Lit. 52 : Rent , whether Rent-seruice , Rent-charge , or Rent-secke . Encloser and Forestaller .

Encloser is , when the Tenant encloseth the Land , so as he cannot come to distrein , or to demand it . But if it be a Parke or such 99. E. 3. 15. like , that hath of ancient time beene inclosed , so as it is not done of purpose to keep him from his rent , that is no disseisin .

Forestaller is , when the Tenant besetteth the way with force and Armes vpon his comming . Of which nature also is the menacing of him , that for doubt of some bodily hurt , death , or losse of member hee dare not come .

In a Rent-seruice and rent-charge , Rescuous , and Repleuin .

Rescuous , when either the partie hauing distreyued ; the distresse is rescued , or being vpon the land to distreyne , cannot be suffered .

Repleuin is , when an Action of Repleuin is brought vpon a distresse taken .

In a Rent-charge and a Rent-seck , denier .

Denier is , when the Rent ( beeing demanded vpon the Land ) is not paid .

Vsurpation is , when the Church becommeth ful by the presentment of a wrong Patron : which is done by the institution of the partie presented .

Prerogatiue .

But against the King , Induction onely doth it . Therefore at the Common law , in a Quare impedit , Plenartie day of the Writ purchased , is a good plea , though it bee by institution onely . And the Plenartie by sixe moneths ( which barreth the right Patron of his Quare impedit , by the Statute Westminst. 2. Cap. 5. ) is accounted from that time betweene common persons . So is it for the King when he presenteth . And in these cases the Ordinary may certifie a plenartie without making mention of any induction , but of admission and institution onely . But against the King plenartie is accounted from the time of induction , and not before . And if a Patron that holdeth of the King , present , and die after admission and institution of his Clark , and before induction ; the King shall present a new . Otherwise it is in the case of a common person . But Plenartie is no plea in a Quare impedit , against a person impersonee ( that is , a Spirituall Bodie politique , which beeing Patron , hath the Church appropriated in succession , ( viz. ) to hold to their proper vse , without presentation , institution , or induction of any incumbent ) for his plea must be , That the Church is full of his presentment , which a person impersonee cannot say .

Statutes .

Westm. 2. Cap. 5. Vsurpation vpon Gardeins tenants in Dower , or vpon femes couert , or houses of religion in time of vacation , shal not put the heires fems , or houses of religion out of possession . But faint recoueries shal not be auoyded in such cases by way of plea.

Plenartie is no plea in a Quare impedit , or darreine presentment , if the Writ bee purchased within vj moneths .

When one parcener presents in anothers turne , yet this gaineth no possession : for the other may present when her turn commeth againe .

CHAP. 6.

Of Trespasses in goods .

SVch is the nature of an offence without force .

An offence with force is a Trespas ( or offence ) against the Crowne . For in all Inditements and Inquisitions , Stat. 37. H. 8. ca. 8. reciteth the Common law to be so . of treason , murder , felonie , trespasse , &c. vi & armis must be in , else it is not good .

Trespasse is a criminal offence punishable by a fine vnto the King . So is euerie contempt punishable : and for this reason no action of Trespasse lieth for the Lessee for yeres , against the Lessor , ( though he distreyne without cause ) for that the Statute of Marlebridge , cap. 4 , is , That he shall not be punished by fine and ransome ; which if he be attainted in this action , he must needs be , and for this the partie must be imprisoned till he doe compound . Therefore after tender of his fine , the king cannot iustly detaine him in prison .

Trespasses touch possessions or the person . Possessions , when the wrong is don in them , namely in goods or land .

Trespasse in goods , is the wrongful taking of them with pretence of title . And therfore altreth the property of those goods . So as one cannot declare in an Action of trespasse , that the defendant took his horse at S. and carried him to D. and there killed him against the peace , &c. For by wrongful taking , the propertie being diuested out of the plaintif , and vested in the defendant , consequently it followeth , that hee cannot kill his owne horse against the peace .

CHAP. 7.

Of Trespasse in Land .

TRespasse in land is , when the trespasse is done vpon an actual possession thereof . For of a trespasse don (a) (a) 11. H. 7. 22. after the death of the Ancestor , and before the heires entrie : after (b) (b) 1. Mar. Pl. 142 breach of the Condition , and before entrie for it : where a lease for yeares is made , reseruing a rent , vpon condition to be voyde if the rent be not paide : or after Michaelmas , and before the Lessees entrie , where a lease for yeres is made to begin at that day : no Action lieth for the heire in the first case ; for the Lessor in the second , nor for the Lessee in the third . Because they were Park 4. not seised of the Land at the time of the trespasse done ; yet the Lessor in the second case might haue made a new lease before his entrie ; for the first lease was meerely void , and the Lessee in the last case , might before Michaelmas grant away his terme .

Where beasts or any other Chattells , shocks of Corne , or whatsoeuer else , whether 21. H. 7. 39. Conisance may be of them to bring a Repleuin , or not : that so the Trespasse may be distreyned by him that hath dammage by it . As one that hath Common 15. H. 7. 13. out of land , though he haue nothing in the land it selfe , so as he can haue no Action of Trespasse against the owner of the beasts , for their entrie into the land , nor the grasse wasted , &c. yet he may distrein them dammage feasant , because of the dammage hee sustaineth . But so cannot Cesti qui vse : for he hath nothing at all to doe in the land , saue that there is a confidence between the feoffees and him : but the feoffees may punish him by the Common law , if he occupie the land , for he is but a meere stranger . And if a stranger of his owne head driue out beasts that are dammage feasant , the owner of the beasts shall punish him , for he is indammaged by this driuing out , and the other hath no losse .

Hither belongeth Eiectment , when a F. N. B. 220. f. 1. H. 6. 1. termer for yeares of land is ousted : Whether by the Lessee or a stranger , but not a Termer for yeares of beasts or other Chattels .

Prerogatiue .

Here ( viz. ) of land , which is a thing permanent for things tronsitorie and remoueable : 1. H. 7. 19. the King may be put out of his possession , and haue his Action according , as rauishment of gard , Quare impedit , &c. But of things permanent hee cannot haue an Action , as a Praecipe quod reddat , eiectment of ward , &c. because of such things he cannot be put out of possession : the King hauing possession by matter of Record , or Stamf. prer. 74. other good title , none can put him out . But 8 H. 4 16. ꝑ Stanf . prer. 57. if hauing no title by matter of Record , or otherwise , he enter vpon me & put me out , there if I enter againe , my entrie is lawfull , and no intrusion . So if the king seise vpon an office , finding that his tenant died seised but of an estate for life , the reuersion to another ; he in the reuersion may enter , and make a feoffement : for the King seiseth by colour of a Record , which Record giueth him no title indeed .

CHAP. 8.

Of Menaces .

TRespasses to the person are with pretence of violence , or violence indeed .

Pretence of violence , as Menaces & Assaults .

Menaces are threatning words of beating one , or such like , through feare ( a ) 18. E. 4. 28. whereof ones businesse is foreslowed . For ( b ) 7. E. 4. 24. a menace onely ( without other losse ) maketh not the Trespasse , but both of them together .

CHAP. 9.

Of Assault .

ASsault is an vnlawfull setting vpon ones person . As offering to ( c ) 40. E. 3 40. beate one , though he doe not beate one in deede , striking (d) (d) 22. ass. pl 60. at one with an Hatchet , or such like , though he do not touch him . Whether belongeth lying in waite , besetting his mansion Booke of Entries fol. 552. house , and not suffering his seruants to goe in and out , &c.

CHAP. 10.

Of false Imprisonment .

VIolence indeede , is false imprisonment , or bodily hurt .

False imprisonment is an vnlawfull restraint of libertie . As (a) (a) 22. ass. pl. 85. arresting one against his will , though it be in the High-streete , and he neuer put in prison in any house ; detaining of a woman (b) (b) 43. E. 3. 20. against her wil , whom he hath rauished . So if a (c) (c) 22. E. 4. 45. master imprison one without cause , and deliuer the key of the dore to a seruant that hath notice of his wrongfull imprisonment of him , if the seruant deliuer him not , he shall bee punished in an Action of false imprisonment . But if the imprisonment be vpon a false & feined suite , as in suing (d) (d) 43. E. 3. 33. execution vpon a statute marchant , when the monie is paid , yet no Action of false imprisonment lieth , for he is imprisoned by course of Law .

CHAP. 11.

Of Batterie .

BOdily hurts are either outward violences onely , or Rape .

Outward violences only , are Batterie and maime .

Batterie is the wrongfull beating of one . But if a man will take away my goods , I may lay my hands vpon him , and 9. E. 4. 28. disturbe him , and ( if he will not leaue ) I may beate him , rather than he shall carrie them away , for that is no wrongfull beating .

CHAP. 18.

Of Maime .

MAime is the wrongfull spoyling of a member defensiue in fight . As cutting off ones finger , knocking (b) (b) 8. H. 4. 31. Corone 458. out ones foretooth , (c) (c) Brit. & Bract. ꝑ Stamf. 38. b. putting ( a ) 28. E 3. 94. out his eye , &c. Otherwise it is of knocking out his grinding teeth , cutting off ones eare , nose , &c. for these are but deformities .

CHAP. 13.

Of Rape .

THese are outward violences only : Rape is the carnall abusing of a (d) (d) 9. E. 4. 26. woman against her will . But if the woman conceiue vpon any ( e ) Brit. per Stamf. 24. carnall abusing of her , that is no rape , for she cannot conceiue vnlesse shee consent .

Statutes .

6. R. 2. ca. 6. If the woman after rape , consent , as wel she as the rauisher be dishabled to haue any heritage , dower , or Ioint-feofment after the death of their husbands and Ancestors , and the next of bloud shal haue title to enter incontinently .

CHAP. 14.

Of Contempts .

CErtaine offences against the King are in the nature of trespasses , and are termed contempts : as (a) (a) 38. H. 39. making rescous vpon his Writ serued , (b) (b) 24. E. 3. 3. going armed in his palace , &c. where sometime the punishment is increased according to the qualitie of the offence , not onely in the fine , but further , in the losse of member , and such like . As a juror 36. H. 6. 27. appearing , and being challenged , if hee doe not appeare vpon demand , when hee is found indifferent , shall bee fined by the value of his land by a yeare . He that smiteth a man (d) (d) 41. E. 3. Coron. 280. in Westminster Hall , or a Iuror in the presence of the Iustices , shall haue his right hand cut off , his land and ( e ) 19. E. 3. Iudgement 174. chattels forfeited , and in the latter case bee committed to perpetuall prison .

CHAP. 15.

Of Offences against the Crowne .

THus much then of Trespasse ; it remaineth to speake of offences against the Crowne , which are criminall offences , punishable by death .

Where further also all the offendors both hereditaments , As lands , rents , &c. whether for life (a) (a) Stamf. 186 b. & 190 onely , or of (b) (b) 22. ass. pl 4 in high Treason . an estate of inheritance , & chattels , not onely in possession , (c) (c) 29. Ass pl. 63. but such as he hath but a right to , As lands (d) (d) 6. H. 7. 9. wherof he is disseised , debts , (e) (e) 29 ass ibid. goods (f) (f) 50 ass pl. 5. to be accounted for , or wrongfully (g) (g) 29. Ass pl ibid. taken ; But (h) (h) 29. Ass. ibid. not such as he is to recouer but dammages for , as in batterie , &c. are forfeite to the King . And that as well in Felonie , as Treason , saue onely in felonie land of inheritance is forfeite to the Lord , as appeareth (i) (i) chap. 16. afterwards .

Hereditaments (k) (k) 30. H. 65. from the time of the offence , ( whether the attainder be by Outlawrie , verdit , or howsoeuer else ) Chattels , though real , (l) (l) 5. Mar. as a lease for yeres , &c. from (m) (m) 8. E. 4. 4. the time of the attainder onely . So (n) (n) 8. E. 4. ibid. as a sale or gift before , is good , for he must liue of them . And therefore after enditement , and before attainder , the goods shall 7. H. 4. 47. Br forf . de terr. 10. not be remooued out of his house , but shal be in the keeping of his neighbors . And in these and all other forfeitures , as vpon an (o) (o) 5. H. 4. forf . 32. enditement of fugam fecit , or (p) (p) 3 E. 3 corone 347. if one be taken with the manner , vpon a robbery , or (q) (q) 22. ass pl. 8. ● . tarrie the exigent , &c. the Towne is chargeable with the goods , and therefore (r) (r) 22. ass. ibid. may seise them wheresoeuer they be .

Statutes .

31. E. 3. cap. 3. No man nor towne shall be charged in the Exchequer , by the extract of the Iustices , of the Chattels of fugitiues , or felons , if they can shew that another is chargeable .

1. Ric. 3. cap. 3. No Sherife , Vnder-shetife , or escheator , Bailife of Franchises , nor any other person , take or seise the goods of any person arrested , or imprisoned , before that such persons , so arrested and imprisoned be conuict , or attainted of such felony , according to the Law of England : or else the same goods otherwise lawfully forfeit , vpon paine to forfeite the double value of the goods so taken , to him or them that shall be thereby indammaged , by Action of debt in this behalfe to be pursued .

The bloud also is here corrupted . So as 37. H. 8. Br. d●n. 42 22. H. 6. 38. a remainder to his right heire , can neuer take effect . The eldest son attainted of felonie in his fathers life time , and him suruiuing , or his issue (a) (a) 32. H. 8. Dy. 48 ( if he die before ) cannot inherite : and besides , shall be an impediment , that the younger brother cannot , ( b ) 22 H 6 ibid. but it shall go to the Lord by escheat . Otherwise (c) (c) 32 H 8 Dy. ib. it is if the eldest sonne die without issue in his fathers life time .

Lastly , the wife looseth (d) (d) Lit. 169 her dower , And notwithstanding (e) (e) 3 & 4 Ph. & Mar. Dy. 140. the husband alien the same before the offence commited .

Statutes .

1. E. 6. cap. 12. No dower shall bee forfeit , by the husbands attainder , of any murder , or felony whatsoeuer .

Prerogatiue .

Those that flie for feare of the offence 3. E. 3 corone 209. 3. E. 3. corone 289. 5. H. 4. forf 32. ( we call it a Fugam fecit ) forfeit their thattels Accessaries after the fact , that is to say witting mainteiners ( and (f) (f) 12. E. 3. corone 377. 14. E. 2. ꝑ 19. El. Dy. 355. if it bee of one outlawed in the same County , though they haue no other notice of it ) as by (g) (g) 8. E. 3 cor. 427. receiuing one that flieth for it into his house , and shutting the doore , so as the Countrey thinking him to be there , he escape whilest no man followeth him ; ayding ( b ) 26 ass pl. 47. him with money , but not with good words , as wholsome aduise speaking or writing for his deliuerie , And therfore also that suffer (i) (i) Stamf. 35. h. one arrested whether by themselues or any other to escape which ( k ) 9. H 4. 1. we call a voluntarie escape , are guiltie of ( l ) Stamf. 22. i. the same offence .

Prerogatiue .

Concealing the offence , without discouering it vnto the king , or his Councell , or to some Magistrate , is called misprision , and that forfeiteth ( a ) chattels , and hereditaments during their life .

CHAP. 16.

Of Felonie .

OFfences against the Crowne bee of two sorts , Felony , and High-treason . Felony is an offence of the Crowne not bent immediatly against the State , where the forfeiture of the offenders (b) (b) 27. E. 3. Escheate 17. inheritance is giuen to the Lord ( whether it be in petie (c) (c) 22. ass. pl. 49. Treason , or other Felonie , and (d) (d) Stamf. 198. a. at any time after he is attainted ; And therefore the Lord may haue a writ of Escheat before execution . But (e) (e) Stamf. 190. ● . of lands ( wherof one is seised in the right of his wife ) the King shall haue the issues during the husbands life .

Prerogatiue .

The King , both (f) (f) Stamf. 190. a. here , and wheresoeuer (g) (g) Stamf. 190. ● . the offendor was dispunishable of wast ( as if hee were seised of land in the right of his wife ) is vtterly to wast the inheritance , by rooting vp the houses & trees , plowing vp the meadowes , digging vp the land , &c. And this is in detestation of the offence .

Statutes .

Magn. Charta , cap. 22. The King shal haue the land by a yeare and a day , & then render it to the Lord of the fee .

Prerogatiue , cap. 15. giueth the king the profits by a yeare and a day , and moreouer the wasting of it .

CHAP. 17.

Of Stealth .

FElonie is a bare Felonie , or pettie treason .

Bare Felonie is a Felonie of the lowest nature , and is punishable by Stamf. 182. hanging .

This is simple , or mixt .

Simple , as stealth , and man-slaughter .

Stealth is the wrongfull taking of goods without pretence of title . And therefore altereth not the propertie , as a trespasse 4. H. 7. 5. doth , so as vpon an appeale the partie shall re-haue them .

Statutes .

21. H. 8. cap. 7. ( made perpetuall , 5. Eliz. cap. 18. ) The seruant that hath any goods or chattels deliuered him to keepe by his master , and ( with an intent to steale ) doth either goe away therewith , or being in seruice , imbezle , or conuert the same to his owne vse , shall be iudged a theefe , if the value of the goods amount to xl . s.

This extendeth not to Apprentices , or any person within eight yeares of age .

Inne-kéepers must answere for goods 22. H. 6. 21. of their guests stollen : though they let them haue a chamber with a key vnto it , to keepe their goods in . But if the guest suffer with his good will a stranger ( whom he knoweth not ) to lodge with him in the chamber , and the stranger rob him , the Inkeeper shall not be charged . Otherwise it is , if he be lodged there by the Inne-keeper .

Prerogatiue .

Goods confisked ; that is to say , which ( a ) 3. E. 3 corone 371. the théefe , attainted for stealing another thing , for if it bee for stealing the same goods they are said to bee forfeit , and not ( b ) 3. 3. 3. coron. 355 confisked , disclaimeth to haue any propertie , in and waifes ; that is to say , which a ( c ) 12. E. 45. theefe ( but not one that committeth a trespasse ) waiueth ; are the Kings , if he ( whether any officer of his , or the Lord of the ( d ) 21. E. 4. 16. Franchise , seise them before the partie from whom they were stollen . But if the party from whom they were stollen seise them first , ( though it bee not in xx yeares after they be stollen ) or doing his diligence to apprehend the theefe , which is called fresh 21. E. 4. ibid. 7. H. 4 43. suite ; whither the theefe bee taken at his suite or not , conuict him afterwards vpon an Appeale ; he shal haue his goods again .

Statutes .

21. H. 8. cap. 11. The partie shal haue restitution of his goods without fresh suite , if he or any for him giue in euidence , by reason whereof the other is attainted .

The stealing of goods which exceed not the value of xii . b ( called pettie Larcenie ) 27. H. 8. 22. is a felonie ( for a man may iustifie the calling of one theefe for such an offence ) that doth onely forfeit his Chattels .

CHAP. 18.

Of Man-slaughter .

MAn-slaughter is the killing of any person (a) (a) Stamf. 21. c. borne into the world , though he be not baptised . But (b) (b) Stamf ibid. ● ass. pl. 2. to kill an infant in venter sa meere , is no felonie .

Statutes ,

21. E. 1. Stat. de male fac⃛ in parcis : It is no Felonie for Forresters to kill misdoers , if they will not submit themselues .

But if one liue a yeare after an act committed , which was the cause of his death , as beating , (c) (c) 3. E. 3. Corone 303. poyson (d) (d) Stamf. 21. d. giuen him , &c. it is no felonie in him that did the Act : but this death shall bee accounted a naturall death .

The killing of one by (e) (e) 2. H. 4. 18. chance ( which we call by misfortune , or misaduenture ) in the doing a lawfull act . But not if A. B. be ( f ) Stamf. 16. c. fighting and C. comming between to part them , bee slaine by either of them both without any ill entent , for that is felony at the least if not murder , in him that killeth C. because the thing which they were doing was vnlawfull , or in his owne defence , which we call Se defendendo , flying ( g ) 4. H. 7. 2. as farre as he may to saue his life , for otherwise ( h ) 43 ass pl. 31. it is felonie , though the other pursue him , doth onely forfeit his chattels , and he must haue a charter of pardon .

Statutes .

Gloucest . cap. 9. Hee that killeth a man by misaduenture , or se defendendo , must put himselfe vpon the countrey , and if he bee found to haue done it so , the King if he please may pardon him .

Marlb . cap. 25. To kill a man by misaduenture shall be no murder .

But the killing of one that attempteth to robbe him ( whether (e) (e) 26. ass pl. 32. vpon the High-way , or (f) (f) 26. ass pl. 23. when men come to his house , & compasse it about to burne it ( though they do not burn it ) whereupon he issueth out & killeth one of them , is neither felonie , nor causeth any forfeiture at all .

Prerogatiue .

Any vnreasonable thing killing a man : ( a ) 8. E. 2. Corone 389. As the wheele of a mill , when one falleth from the bridge into the water , and is carried by the violence of it vnder the outward ( b ) 3 E. 3 coron. 140. wheele ; the taske of Corne that a man falleth from , and so receiueth his death : it , and euery thing mouing with , it is forfeit to the King . As if a man beeing vpon a Cart ( c ) 8. E. 2. cor. 397 carrying Faggots , and binding them together , fall downe by the mouing of one of the horses in the cart , and die of it : both that and all the other horses in the cart , and the cart it selfe , are forfeit . And these are called Deodands .

CHAP. 19.

Of Chance-Medlie .

Manslaughter is Chance-medlie , or murder .

Chance-medly is man-slaughter without former malice . As if 1. Mar. Pl. 100. certaine set vpon one to kill him , and I. S. hauing no malice against him , & being in the companie , and seeing them combating , take part suddenly , and together with the rest smite him that he die , this is Chance-medlie in I. S.

CHAP. 20.

Of Murder .

MVrder is Man-slaughter vpon 18. El. Pl. 474. former mallice : which wee call prepensed malice . As if one to kil his Wife , giue her ( lying sicke ) poyson in a rosted apple : and she eating a little of it , giue the rest to a little child of theirs , which the husband least he should be suspected , suffereth the child to eate , who dieth of the same poyson ; this is murder though the wife recouer : for the poyson ministred vpon malice prepenced , to one ( which by a contingencie procureth the death of another , whom he meant not to kill , nor bare any malice to ) shall bee as great an offence , as if it had taken the effect which he meant , proceeding from a naughtie and malicious intent .

Felonie de se , That is , he that murdereth 3. El. Pl. 258. himselfe , doth onely forfeite his Chattels , But not his lands ; neither doth it worke corruption of bloud , nor looseth the wiues dower , because it is no attainder indeede : But his Chattels he dotb forfeit , reall and personall goods , debts , &c. And this forfeit shall haue relation to the time of the act in his life , which was the cause of his death . So as husband and wife beeing possessed joyntly of a terme for yeares of land , and the husband drowning himself , the term is forfeite to the King ; and the wife suruiuing shal not haue it : for the Kings title is from the casting of himselfe into the water , which was before the wife had any title by suruiuor . And this forfeiture is as strong to giue away the term as an expresse grant , which the husband might haue done and barred his wife .

CHAP. 21.

Of Robberie .

MIxt , is that kind of bare Felonie which riseth from the former .

Whereof there bee two sorts , Robberie , and Burglarie .

Robberie , is stealth from ones person by assault in the high-way . But if either nothing (a) (a) 9. E. 4 2● . bee taken , though hee command him to deliuer his purse or money , or money taken , but (b) (b) 5. El. Dy. 224. without putting the person in feare by assault and violence ( as where one is indited Quod vi & armis , apud B. in via regia ibidem xl . s. de pecunijs numeratis , &c. felonice cepit de persona I. S. ) it is no Robberie . And therefore in this latter case he may haue his Clergie at this day .

CHAP. 22.

Of Burglarie .

BVrglary is the night-breaking of an house , with an (a) (a) 1. E. 6 Br. Corone 179. intent to steale or kill ; though none be killed , nor any thing stollen . And so it is of a (b) (b) 1. E. 6. ibid. stable , parcell of a house , but (c) (c) 13. H. 4. 7. not of breaking ones Close to kil him , nor ones house , if it be but to beate him , nor though it be to kil him , if it be in the day time . ( d ) Stamf. 30. b.

CHAP. 23.

Of pettie Treason , properly so called .

ANd of bare Felonies so much shall suffice . Pettie Treason is a Felonie , (e) (e) 1. E. 3. 24. For where one is arraigned for falsifying the Kings seale , ( which is a pettie Treason ) a Charter of pardon of all Felonies is a good plea. ( f ) 1. R 2 4. F. N. B. 269. b. of higher nature than bare Felonie is ; the punishment whereof is burning .

This is against mortall creatures , or against God .

Against mortall creatures , as Petty-treason ( a ) 22. ass pl. 49. 21. E. 3. 17. Corone 477. ( properly so called ) and Sodomitrie . Pettie treason ( properly so called ) is the killing of any to whom priuate obedience ( b ) 12. ass pl. 30. 19. H. 6. 14. his masters wife . is due : as ones master , mistresse , husband , &c. for which in stead of burning , ( c ) 1. R. 3. 4. ( which the woman here shall bee ) a man ( d ) 12 ass pl. 30. 1. R. 3. 4 ▪ shall be hanged and drawne . ( e ) 21. E. 3. ibid. 19. H. 6. ibid.

CHAP. 24.

Of Sodomitrie .

SOdomitrie is a carnall copulation against nature , to wit , of man or woman F. N. B 269. b. they shall be burnt , and that by the common Law . in the same Sexe , or of either of them with beasts .

CHAP. 25.

Of Heresie .

AGainst God , is that which immediately ( f ) Lect. Frowick . No Sanctuarie lieth in case of Heresie , for it is treason against God . is bent against his Maiestie , as Heresie , and Sorcerie . Heresie is a presumptuous oppugning of an Article of Faith : whereof what it is , ( g ) F. N B. 269. b. Sorcerers , Sorceresses , and Heretiques shall be burnt , and that by the Common Law F. N. B. 269 b. the Common-Law taketh no notice . But in case of Heresie , the partie before hee can be burnt , must be conuict in a Prouinciall Sinode ; and after abiuration , make a relapse into the same or some other Heresie .

CHAP. 26.

Of Sorcerie .

SOrcerie is a consulting with Diuels , F. N. B. 269. b. 45. E. 3. 17. and containeth vnder it , Coniuring , Nigromancie , and such like .

CHAP. 27.

Of Pettie Treason , growing by Prerogatiue .

HEre diuers offences are accounted ( a ) 26. ass pl 63. felonie , in respect of the ( b ) 3. H. 7. 10. Kings Prerogatiue , As to counterfeit ( c ) 1. E. 3. 24. the Kings coyne , great seale , or Priuie Seale ; to acknowledge any forrein person to haue any power within the Realme . As (d) (d) 30. ass pl. 19. by pleading an Excommunication vnder the Popes Bull. and are punishable as Pettie Treason .

CHAP. 28.

Of High Treason .

HIgh Treason followeth , which is an offence of the Crowne , directly ( e ) 25. E. 3. cap. 2. maketh a declaration of all these to bee high Treason . against the State . As in compassing the death of the King : For entending his death ( without ( f ) 13. H. 8. 12. more ) is Treason ; otherwise it is in felony , except an act be done , or the Queene his wife , or of his sonne and heire , by leuying warre within the Realme , or adhering to his enemies : or them comforting , ayding , &c. and is punishable by drawing , 1. H. 7. 24. Stamf. 182. c. hanging and quartering , in a man , drawing and hanging in a woman .

Statutes .

25. E. 3. de prodicionibus cap. 2. It is made high treason to kill the Chancellor , Treasurer , or Iustice of either Bench.

Iustices of Eire , or of Assises , or any other Iustices assigned to heare and determine in their place , doing their office .

To counterfeit the kings mony .

To bring false coine into this Realme , counterfeit according to the mony of England ( knowing the same mony to be false ) to marchandise , or make payment with it .

To counterfeit the Kings great seale , or priuie seale .

1. Mar. cap. 6. Seale manuell , priuie Signet , or priuie seale .

Strange coine currant in this Rlalme .

1. & 2. Ph. & Mar. cap. 11. To bring wittingly false forreine coyne hither , to the intent to vtter it within the Realme .

1. Eliz. c. 11. To clip , wash , round , or file , any mony of this Realme , or currant here : and causeth forfeiture of land for life only . But no dower shall be forfeited , nor bloud corrupted .

18 Eliz. cap. 1. To Impaire , Diminish , Falsifie , Scale , or Lighten any money by any Art , waies or meanes whatsoeuer .

1. Eliz. cap. 1. Aduisedly , maliciously , and directly , to affirme , set forth , and defend the third time by expresse deed or act , or to put in vre , or to execute any thing , for the defence or setting forth of the spiritual authoritie or iurisdiction of any forraine person , heretofore claimed or vsed in any of the Queenes dominions .

So for any person compellable to take the Oath .

To refuse ( after lawfull tender ) the Oath to acknowledge the Queene supreame gouernor in all causes within her dominions .

13. Eliz. cap. 1. To put in vre any bull , or instrument of absolution , or reconciliation from Rome , or to take vpon one ( by colour of any such to absolue or reconcile any person , or to publish any such Bull or instrument . To receiue such absolution , or to procure , abet , or counsell any offendor to vphold him . To practise to absolue , persuade , or withdraw any person within the Queenes dominions , from their naturall obedience , or ( for that entent ) from the Religion now established here , to the Romish religion , or to mooue them to promise obedience to the Sea of Rome , or other Estate , or willingly to bee absolued , withdrawne , or to promise such obedience .

1. Eliz. cap. 6. Maliciously , directly and aduisedly , to say or hold opinion ( the second time ) that the Queenes Maiestie , or her heires of her bodie , be not right Kings and Queenes of this Realme , or that any other person ought to be .

Their abbettors , procurers , counsellors , aydors , &c. To affirme by any writing , printing , deed , or Act : The first time , their abbettors , &c.

33 H. 8. cap. 20. Attainder of high treason by the course of the common law , or statutes of this Realme , shall be of as great force as an attainder by Parliament . And the King shall haue the reall possession of euery thing forfeited without inquisition , or office : sauing to strangers , &c.

29. Eliz. cap. 2. No attainder of high treason ( for which the party is once executed ) shall bee impeached for any error , by the heires , or any claiming vnder them .

26. H. 8. cap. 13. & 5. & 6. E. 6. cap. 11. Any offence ( made treason heretofore ) done out of the limits of the Realme , shall be inquired here by Commission , and like processe vsed , as if it had bin don within the realme .

One resiant out of the limits of the realme , may be out-lawed for high treason .

An estate taile shall be forfeit for High-treason .

The fourth booke of LAW.
CHAP. 1.

Of Courts .

THus we haue gon through both the parts of Law ; there remaineth yet one generall and common affection scattered , throughout the whole Law , ( as the bloud is through the bodie , ) which we call an Action .

Action is the handling of a cause in controuersie before certaine Iudges : who ( in respect ot the place where they are set to doe Iustice ) are commonly called a Court.

Statutes .

36. Ed. 3. cap. 15. All pleas which bee pleaded in any of the Kings Courts , before any of his Iustices , or in his other places , or before any of his other ministers , or in the Courts and places of any other Lords within the Realme shall be pleaded , shewed and defended , answered , debated and iudged in the English tongue , & that they be entred and inrolled in Latine .

Of all apparent faults proceeding from the Action , As in false Latine (a) (a) 4. H. 6. 16. or default of forme in the writ , insufficiencie in ( b ) 5. E. 4. 7. an office or Inditement , misawarding of Processe ( as if of an exigent where no exigent lieth : ) impossibilitie in the plea , as in ( c ) 7. H. 6. 5. account , supposing him to bee his Receiuor for vij yeares , and the defendant pleads , fully accounted such a day , which is the first of those vij yeares ; The Court must take notice . To abate the Writ , award a Supersedias vpon those offices , Inditements , or Processe , to stay Iudgement if the defendants plea bee found against him , &c. though the partie except not to it . And 4 H. 6. 16. therefore although hee that casteth an Essoyne cannot pleade in abatement in the Writ , by way of plea ; yet if it be a matter apparent to the Court , ( as Henricus , &c. Dux Hiberniae , where it should bee Dominus ) he & euerie other stranger , as amicus curia , may . And the Court is bound to abate it ex officio , though the Tenant or defendant make default .

Euerie Court hath power to award forth Precepts . And if the Precept bee 14. H. 6. 20. in a Sommons ad Warrantizandum . F. N. B. 73. in a Repleuin . not serued , another of the like nature shall goe forth till it bee serued . Therefore the second Processe is called a Sommons ( or attachment , as the first Processe was ) sicut alias ; the third a Pluries , the fourth , and al the rest , Plus pluries .

To euerie Court doe belong both Clarkes and Officers .

A Clarke is hee that serueth for things to be done in Court , as entering the pleas , and such like .

Any error that appeareth to the Court to be the Clarkes ( misprision ) mistaking , may bee amended at any time . As a good originall Writ or precept ill entered in the 7. H. 6. 4● . Rolle . A Writ against A. and B. and the 44. E. 3. 18. whole Processe continued against B. & C. not A. and B. a Scire facias out of a fine & 20. E. 47. parcell of the land omitted .

Statutes .

14. E. 3. cap. 6. No Processe shall be adnulled or discontinued by the Clarkes mistaking in writing one syllable or one letter too little , or too much , but shall speedily be amended , without any aduantage to the other .

9. H. 5. cap 4. made perpetuall .

4. H. 6. cap. 3. The Iustices before such pleas or Records bee made , or shall bee depending by adiournement , errors , or otherwise , may make such amendment as well after iudgement as before .

4 H. 6. cap. 3. The former Statutes shall not extend to Records and Processe , whereby any person shall be out-lawed .

8. H 6. cap. 12. No iudgement or Record shall be reuersed or adnulled for error , assigned in rasing or interlining , adding , substracting , or diminishing of words , letters , titles , or parcell of letters in any Record , Processe , or warrant of Atturney , originall Writ , or iudiciall Pannell , or retorne , though to the Iudges of the Courts wherein the said Records and Processe be certifyed ( by Writ of Error , or otherwise ) the same appeare suspected . But the Kings Iudges of the Courts where the said Records and Processe be certifyed by Writ of Error , or otherwise , shal examine the same by themselues and their Clarkes , and amend therein ( in affirmance of the first Iudgement ) al that seemeth to them to bee the Clarkes misprision : Except Appeales , Inditements of Treason , and of Felonies , and the Outlawries of the same . And the substance of the proper names , syr-names , and additions , left out in originall Writs of Exigend , and other Writs containing Proclamation . And if any Record , Processe , Writ , Warrant of Atturney , Returne , or Pannell , to be certified defectiue , otherwise than according to the writing which thereof remaineth in the Treasurie , Courts , or places from whence they be certified ; the parties in affirmance of the Iudgements of such Records or Processe , shall haue aduantage to alledge variance betwixt the same Writing and the Certificate : which being found and certifyed , the same variance shall bee by the said Iudges amended , according to the first writing .

27. Eliz. cap. 7. After demurrers ioyned and entred , the same Court may amend all imperfections , defects , & wants of forme , other than those onely which the party demurring shall particularly expresse with his demurrer .

Officers are those which are to serue the Courts Precepts , and where the Precept so requireth , to certifie the Court thereof : which we call a returne .

So vpon a Writ to inquire of dammages , it is a good returne that the Inquest gaue 44. E. 3. 3. no dammages . For he returneth what they did .

But vpon a Capias returned Cepi corpus , he 44. E. 3 2. shall be amerced if he haue it not there at the day . For the Writ is , Capias ita quod corpus eius habere possis , &c. tali die , &c.

Statutes .

Westm 2. Cap. 39. Dammages giuen against the Sherife if he returne not at all , or returne a tardie , vpon Writs deliuered or offered to be deliuered him by Billet . So vpon returning Mandaui Balliuo libertatis falsely : vpon resistance of any Great man to execute the Kings Precept , the Sherife shall take the Fosse Comitatus , and see it serued .

Stat. Ebora● 12. E. 2. Ca. 5. Bailifes of Franchises must deliuer their returnes of the Writs to the Sherife by Indenture , and if he change the Returne , the Lord of the libertie , and the partie , shall recouer double dammages .

The Sherif , &c. must set his proper name to all returnes .

27. Eliz. C. 12. Euerie Vnder-Sherife , Bailife of Franchise , Deputie , or Clarke of the Sherife , &c. must take an oth for the supremacie , and for the true , speedie , and indifferent returning of Writs , and impanelling of Iurors , without taking aboue the fees allowed .

29. Eliz. Cap. 4. Sherifes may take for the seruing of any extent or execution only xij . đ. of and for euerie xx . s. where the summe exceedeth not C. l. and vj đ. of and for euerie xx s. beeing aboue an C. l. that they shall leuie , or extend and deliuer in execution , or take the bodie in execution for .

Courts are Courts of Record , or Court Barons . For against a recouerie pleaded 9. E. 4. 42. in antient demesne , or other Court Baron ; one shall not say , nul tiel Recorde , for it is no Record , but nul tiel recouerie , and it shall be tried by the Countrie . Otherwise it is in the Kings Courts .

Of Recorde , which are the Kings Courts , as he is King . Otherwise , if the 9. E. 4. ibid. King haue a Court as Lord of a Mannour , that is but a Court Baron . And these haue that credit , that no auerment can be taken against any thing there entered or done . And therefore worke an Estoppell to the 15. El. Pl. 434. parties in like sort , as Indentures did before . ( a ) 21. H. 9. 24. As vpon a Lease made by fine , both ( b ) 5. E. 4. 1. parttes are estopped to say the Lessor had nothing in the land .

So of Pleas in Barre , Replications , Returnes of the Sherife , &c.

Statutes .

1. E. 3. Cap. 4. Statut. 1. Auerment giuen in a Writ of false Iudgement against the Record certifyed .

Things also that cannot be granted but by Deed , passe here , and that more strongly , by matter of Record .

The King taketh Hereditaments , 18. Eliz ploy. 483. 21. H 7. 19. 39. H. 6. 26. Stamf. praef. 56. though it be but for yeares . Otherwise it is of an Obligation or Chattell personall , by matter of Record onely : for to personal and transitorie things , as Catalla felonum & fugitiuorum , wrecke of Sea , treasure troue , and the profits of land of persons out-lawed in a personall Action , &c. the King is intituled without office or other matter of Record : but to take a Free-hold by a Condition 3. Eliz. ploy. 229. broken , or purchase of his Villeine , or such like , hee cannot without office or matter of Record . Otherwise it is , where the Law casts a Free-hold vpon him , as in a gift in Taile , the remainder to the King . 3. Eliz. ploy. 229. 5. E. 4. 7.

And therefore also the King taketh a Free-hold without liuerie or seisin by deed inrolled : but cannot be infeoffed by Deed , without inrollement of Record , for that no Liuerie can be made vnto him .

Villenage beginneth onely by confessing Lit. 39. a mans selfe to be one in a Court of Record And therefore in a Praecipe quod reddat , 41. E. 3. Villen . 6. if the Tenant say , That he is a Villeine to I. S. and holds the Land in Villenage , the demandant saith that is franke , &c. and he is found franke by the Iurie : yet he remaineth a Villeine to I. S.

Duties of the Testator growing by record , 21. E. 4. 21. must be answered by Executors before other duties .

Courts of Record are the Parliament , 1. H. 7. 20 the higher house . Br. Recogn . 8. the lower house . or Courts that haue ordinarie iurisdiction . For the Parliament when it is sitting , may take a Recognisance , and doe such other things as to a Court of Record appertaineth .

The Parliament is a Court of the King , Nobility , and Commons assembled , Hauing an absolute power in all causes . As to make Lawes , to adiudge matters in Law , to trie causes of life and death ; to reuerse 23. El. Dyer 375. 1. H. 7. 19. errors in the Kings Bench , especially where any common mischiefe is , that by the ordinarie course of Law there is no meanes to remedie : this is the proper Court for it . 37 , Ass pl. 17. And all their Decrees are as Iudgements . And if the Parliament it selfe doe erre ( as it 21 E. 3. 46. Br. Parliament 16. may ) it can no where bee reuersed but in Parliament .

Statutes .

4. E. 3. Cap. 14. & 36. E. 3. Cap. 10. A Parliament shall be holden once euerie yeare .

1. H. 4. Cap. 14. No Appeale shall bee pursued in Parliament .

Prerogatiue .

Statutes of restraint binde not vnlesse they concerne the Common-wealth , or hée be specially named : As the Statute of Westm 2. which altereth fee-simple Conditionall , into an estate Taile , that Tenant in Taile shall haue no power to alien , doth binde him : for it is for the Common-wealth . So as Lands being giuen to the King in Taile , the Remainder ouer , if the K. haue issue who alieneth , & dieth without issue ; hee in the remainder may enter . But if by Statute one be attainted , and his lands forfeit , with a prouiso that of such lands as hee was seised to the vse of any other cesty qui vse may enter ; that bindeth not the King that cesty qui vse should enter vpon him , for it is not for the Common-wealth . But the Statute of 1. H. 5. cap. 5. that in Enditements , addition must bee giuen to the partie indited , bindeth the king in that case because Enditements are especially named .

He may licence things forbidden by the Statutes . As to coyne monie which is made felonie by the Statute , and was before lawfull , for that is but malum prohibitum . But malum in se , as to leuie a nusance in the High-way , hee cannot licence to do : but when it is done he may pardon it . But where the Statute saith his Licence shal be void , there it must haue a clause of Non obstante ; that is to say , this clause , ( notwithstanding any Statute ) else it is not good . As the Statute 23. H. 6. cap. 18. is , That the Kings Grant to be Sherife of any County , longer than a yeare , shal be void , notwithstanding that the clause of Non obstante bee in the Patent : yet with a clause of Non obstante such a Grant is good , and not without it . But neither without nor by that clause , hee can dispence with a Statute before it bee made . And therefore a licence to carrie Bell-mettall out of the realm ( notwithstanding any statute made or to bee made ) is not good , if a Statute be made after that to prohibite it . For hee cannot dispence with an Act of Parliament before it be made .

Courts of Record which haue an ordinarie Iurisdiction , are either generall , whose Iurisdiction extends throughout the Realme , or but within some Countie : wherefore these latter , for their order and 34. H. 6. 41. course of proceeding , doe in all things fashion themselues to the example of those higher courts , as of the parents from whom they come .

The former are those that are holden in Terme time onely : the whole yeare hauing foure Termes , Michaelmas , and Hillarie Terme , Easter and Trinitie Terme , and euerie Terme seuerall dayes of Returnes . If either the returne day , or first or last day of Terme fall vpon the Lords day , then the day following is taken in stead of it .

Michaelmas Terme ( beginning the 16. of October , and ending the 28. of Nouember ) hath 8. returnes Octabis Michaelis that is the 8. day after the feast of Saint Michael . Quindena Michael , that is the 15. day after . Tres Michael , that is at the end of 3. weeks after . Mense Michael , that is at the end of a moneth after . Chrastino animarum , that is the next day after Chrastino Martini , Octab. Martini , Quindena Martin .

Hillary Terme beginning the 23. day of Ianuary , and ending the 12. of Februarie hath foure returnes : Octabis Hillarij . Quindena Hillarij , Chrastino purificationis . Octabis purif .

Easter Terme beginning 17. dayes after Easter and ending the Monday next after Assention day , hath fiue returnes . Quindena pasche , Tres paschae , Mense paschae , Quinque paschae , that is fiue weekes after Chrastino Assentionis .

Trinitie Terme beeginneth 12. dayes after Whitsunday , & continuing , 19. daies , hath fiue returnes , Octab Trinitat . Quindena trinitat' , Chrastino Iohannis Baptistae Octab. Iohannis Baptistae , quindena Iohannis Baptista .

Statutes .

32. H. 8. cap. 21. Trinitie Terme shall begin the Monday after Trinitie Sonday for keeping of Essoynes , profers , returnes , &c. The full Terme shall begin the Friday after Corpus Christi day . And haue foure returnes onely , Crastino Trinitatis , Octabis Trinitat' : quindena Trinitatis , Tres Trinitatis . The rest are cut off .

To these Courts belongeth the power of sending forth writs .

A writ is a Latin letter of the kings from thence in Parchment sealed with his seale .

All Writs haue a salutation , Rex to such a one salutem , And a conclusion expressing the name of one which is witnesse to the writ , called Teste ( who in writs out of the Chauncerie is the king himselfe : in other writs the chiefe Iustice of the place ) the place as apud Westmonastarium , &c. and the time both day and yeare of the making of it , if it be returnable , the day of the returne is also appointed in it .

The third writ ( which is the Fluries ) not serued , is a contempt , whereupon an Attachment 2. E. 4. 1. lieth . And therefore the third Fitz. Nat. Br. 68. ● writ hath alwayes this clause in it , Vel causam nobis significes . So may the second which is the Alias also haue , if the Plaintife Fitz. Nat. Br. ibid will .

The officer of these higher Courts is the sherife to whom is committed the custodie 2. H. 6. 7. of the Countie .

For matters spirituall , as certifying excomengement and such like , the ordenary 7. E. 4. 14. is their officer .

And to the Sherife the writ must bee directed , though it bee for a thing done in a franchise , and he shall send to a Bailife of the franchise : who shall serue it as a seruant to the Sherife , and the Sherife returne it .

And though the Sherife serue an execution 2. H. 6. ibid. in a Franchise , yet it is good . And the Lord of the Franchise is driuen to his action vpon the case against the Sherife , for the Sherife is immediate officer .

But in a place excepted out of euery 2. H. 6. ibid. countie ( as the pallace of Westm is ) it shal bee directed to the Gardian of the pallace , for he is immediate officer to the court , and in the nature of a Sherife .

So certificates of excommengement & , 7. E. 4. 14. 8. H. 6. 3. 12. E. 4. 15. such like must be made by the Ordinarie , not by the Commissarie , Archdeacon , or any other , though hee haue an immediate iurisdiction , vnlesse he were speciallie admitted an officer to the court .

These generall courts , are the Chancery and two benches : the Kings Bench , and Common-place .

Chancery which beside that it dealeth with matters of Conscience , and moderating the strictnesse of the common law by an absolute power , dealeth also in ordinary course of law in diuers cases especially , in suits concerning the King , as petitions . Scire facias to repeale his patents , &c. and so it is a court of law and of record , where the Iudge is the Chancellor hauing the custodie of the great Seale of England , vnder which passe all Writs out of the Chancery with Teste meipsos ; and also the Kings ; (a) (a) 4. El. Pl. 213. graunts , being therefore called letters patents , Though it bee of things which he hath in his naturall capacitie , as by descent from his mother , &c. and are ( b ) C● . Court● fol. 108. entred of record in this Court .

Statutes .

18. H. 6. cap. 1. The Kings letters patents must beare date the day of the deliverie of the warrant to the Chancellor , and not before , otherwise they are voide .

3. E. 6. cap. 4. Euery one that hath any interest in any land or office by or vnder authoritie of the kings letters patents ( made after the fourth day of Februarie 27. H. 8. ) may make his title auowrie plea , &c. aswel against the king as any other by an Exemplification ( or constat ) vnder the great Seale .

13. Eliz. cap. 6. So of the Patentees of King Henrie , 8. E. 6. Queene Marie , Philip and Marie , & her Maiestie that now is and all claiming vnder them .

Such graunts are effectuall to passe a freehold from the King without any liuery 38. H. 8. Br. Patents 101. of Seisin . And therefore his letters pattents being Tenant in Taile make no discontinuance . And being matters of record , which being no lyuerie , they take effect from the time of the date . Therefore the Kings Charter of pardon shall bee pleaded 37. H. 6. 21. without shewing when it was deliuered , because being a matter of record , it shall haue relation to the date , and not to the liuerie . Otherwise it is of a deed .

In default of a Chancellor , the Lord-Keeper of the great Seale hath his authoritie . Stat. 5. El ca. 18.

The Keeper ( or Master ) of the Rols , is an assistant to this Court .

In the Kings Bench and Common place , the Iudges are one chiefe Iustice , and thrée ( or sometimes more ) other Iustices . The teste of their writs is , teste Iohanne Popham ( the chiefe Iustice , &c. )

The Kings Bench is that which dealeth 10. El. ploy. 320. properly with Pleas of the Crowne , both hearing and determining them .

The Common place which dealeth properly 10. Eli. ibid. with common Pleas , such are those termed which concerne possessions .

Prerogatiue .

The King hath a proper Court of this kind , for al things touching his reuenues , 10. Eliz ibid. called the Exchequer .

The Iudges whereof are called Barons , or housebands for the Kings Reuenue : being one chiefe Baron and three other . And this also hath a Court of Chancery before the chancellor & Barons of the Exchequer , called the Exchequer chamber .

The Escheator here is a special officer , 4. E. 4. 24. He may take Inquisitions virtute officij . and hath a kind of Court for finding out the Kings title to lands , tenements , or other things .

Statutes .

14. E. 3 cap. 8. No Escheator shall tarrie in his office aboue a yeare .

These are the Courts whose jurisdiction extends throughout the Realme .

Those which deale but within some Countie , are the Sherife in his turne , and the Coroners .

The sherifes turne is a Court of record F. N. E. 82. for offences which are common grieuances . As a robberie , (a) (a) 22. B. 4. 22. bloudshed , clipping & washing of siluer and gold , night walking , the not repairing or making cleane of a bridge or a ditch , (b) (b) 10. H. 6. 7. fraies and assaults , &c. But not (c) (c) 22. E. 4. ibid. murder or breaking of ones hedge , &c. for they are no common grieuances , but a wrong to one singular person .

Whereunto euery man of the age of 12. F. N. B. 161. Brit. per Br. leet 39 years & vpwards ( being within the precinct ) oweth suite , & must be sworne to the Kings Allegeance . And this is called a suit 12. H. 7. 18. 25. E. 3. 23. ● reall , being not due by reason of mens freeholds , but of their body , because they are resiant within the precinct of the Leet . But Brit. per Br. ibid. women are not compellable to come thither nor to be sworne to the king . And therfore when a woman is outlawed , she is said to F. N. B. ibid. be waued and not outlawed , because she is neuer sworne to the Law .

Piers of the Realme are excepted : And Stat. Marl ca. 16. so reciteth it . persons of Churches , and other men of Religion , as appeareth before .

The offendor here shall be amerced , and distreined for that amercement , throughout 2. H. 4 24. 8. R 2. auowry 194. the whole precinct of the Countie .

Statutes .

Magn̄ Chart. 35. The sherife shall make his turne throughout the Hundred but twice a yeare , that is to say , once after Easter , and againe after Michaelmas . And the view of frankpledge shall be made as she turne of Michaelmas .

31. E. 3. cap 14. Stat. 1. The turne must be yearly , once within a moneth after Easter , and another time within a moneth after Michaelmas : if they hold them in another manner , they shal loose their turne for the time .

1. E. 3. cap : 17. Endictments in Sherifes turnes must be by Rols indented , one part to remaine with the enditors , the other with the sherife .

1. E. 4. cap. 2. vpon endictments and presentments taken before Sherifes , or their ministers , at their turnes , or Lawdayes , they shall not attach , arrest , or imprison , nor leuie any fine , or amerciament of any person so indited ( or presented ) but shall deliuer the same enditements or presentments to the Iustices of peace of the same Countie , at their next Sessions , who shall proceed thereupon , as if they were taken before them .

1. Ric. 3. cap. 4. None shall bee returned vpon pannell of enquirie of the Sherifes turne , but men of good name and fame , hauing within the same freehold land to the yearely value of xx . s. or copie land to the yearely value of xxvj . s. viij . d. and euery enditement otherwise taken shall be void .

The Coroners Court , is a Court for Stamf. ●● . matters of the Crowne . Batterie , mayme , rape , murder , &c.

Statutes .

Westm 1. cap. 10. Coroners shall be chosen in all Counties , of the wisest and sufficientest Knights .

14. E. 3. cap. 7. That no Coroner shall be chosen , vnlesse he haue land in fee sufficient in the same Countie , whereof he may answer to all manner of people .

28. E. 3. cap. 6. Al Coroners of the countie shall be chosen in the full Counties , by the Commons of the same Counties , of the most connenient and most lawfull people that shall bee found in the same Counties to do the office . Saued alwayes to the king , and other Lords which owe to make such Coroners , their seigniories , and franchises .

Westm. 1. cap. 10. The sherifes shal haue Conterrols with the Coroners , as well of their appeales , as of enquests of Attachments ; and of other things which to that office doth belong .

Westm 1. cap 10. Coroners must take nothing for doing their office .

Vpon iust cause of exception to the sherife , processe out of the higher Courts shall 14. H. 7. 31. 4. H. 7. 3. be directed to the Coroners .

Prerogatiue .

The Steward and Marshall of the Kings house , haue a Court , for al personel Diu. of courts f. 102 actions , and pleas of the Crowne , arising there . As debt , couenant , trespasse , &c. & by the common Law they might hold plea of freehold it selfe , as it seemeth by the statute of Artic. super Chartas cap. 3. which saith , from henceforth they shall not hold plea of Diu of courts f 102 Stamf. 57. a. freehold . Also they may enquire of treason , murder , felony , manslaughter , bloudshed , &c and take appeales of al kinds of felony and maime .

Statutes .

Artic. super Chart. cap. 3. They shal not hold plea of any contracts & couenants but such as one of the kings house maketh with another of the same house . Nor of any trespasse , vnlesse the partie were attached , and the plea determined before the kings departure from the place where the trespasse was committed .

Any thing attempted here against , is void .

Pleas of felony ( that cannot be determined , before the Steward , because the felons cannot bee attached , or for other like cause ) shall be referred to the common law .

5. E. 3. ca. 2 & 10. E. 3. ca. 2. Enquests shal be taken there by men of the county about , and by no men of the kings house , except it be in couenants , contracts , & trespasses , when either partie is of the kings house .

5. H. 6. cap. 1. The defendants may auerre that themselues or the plaintife ( at the time of the suite commenced ) were not of the Kings house against the Record .

13. Ric. 2. cap. 3. The iurisdiction shal not passe aboue 12. miles about the K. house .

33. H. 8. ca. 12. The Lord Steward of the Kings house alone , and ( in his absence ) the Treasurer and Comptroler of the K. house , with the Steward of the Marshalsy , or two of them ( whereof the Steward of the Marshalsy to be one ) may without commission heare and determine all treasons , misprisions of treasons , murders , manslaughters , & bloudshed , within the K. house , although the king be remoued before . The enquiring and verdict must be by the kings houshold seruants in the Check Roll.

No Clergie , nor sanctuary , to any that is found guiltie before them .

By reason also of certaine franchises , grow two other Courts of records , which deale within some certaine precinct : a Leet and Court of Pipowders .

A Leet is a Court of Record , hauing Fit . N. B. 82. 23. E. 3. 22. the same iurisdiction within an hundred onely , or some lesse preciuct , which the Sherifes turne hath in the Countie , the ●1 . E. 4. 22. profit of , it beeing to a common person . Therefore it (a) (a) 22. E. 4. 22. dealeth with offences that are common grieuances . And (b) (b) F. N. B. 161. Brit. ꝑ Br. l●et 39. all ( but Piers of the Real me ) owe suite vnto it , and must be sworne to the Kings Allegeanee . And the (c) (c) 2. H. 4 24. 8. R. 2 Auowry 194 offendor for an amercement shall be distreined through out the precinct of the Leete . And that as well out of the Land holden of the Lord of the Leete ( where the offence was done ) as within it . The Sherifes turne as an ouerseer of this Court , is to (d) (d) 31. H. 6. leet 11 enquire whether the tythings be whole , or no : to (e) (e) 12. H. 7. 18. present defaults that are not redressed in the Leete : And if ( for misuser or other cause ) the Leet be seised into the kings hands , all the people shall come to the sherifes turne . But (f) (f) 29. E. 3 21. Auowry 247. otherwise the sheriefe in his turne hath no power to enquire of an offence done within the Leete .

A Court of pipowders is a Court of record , (ff) (ff) 6 E. 4. 3. 7 E 4 23. A writ of Errour lieth there , and not a writ of false iudg . incident (g) (g) Stat. 17. E. 4. ca 2 so reciteth it . to Faires and Markets : but by (h) (h) 13. E 4 8. Ibid. custome , a Court of pipowders may bee held , out of Faire or Market : for all actions arising there , by reason of any contract , couenant , trespasse , debt , &c. (i) (i) 4. M. Dy. 133 ▪ And the suite must at the same time be commenced .

Statutes .

17. E. 4. cap. 2. made perpetuall , 1. R. 3. cap. 6. No plea shall be holden in Court of Pipowders , vnlesse the plaintife or his Atturney sweare , that the matter of declaration was done in time of the same Faire , & within iurisdiction thereof , but that oath shal be no conclusion to the defendant , but that he may pleade as he might before . Euery Steward , &c. holding plea contrarie , forfeiteth C. s. 42. ass. pl. 12.

The King ( by commission vnder his letters pattents ) but not by writ , may erect other Courts at his pleasure .

Such were Iustices of Eyre , and such Courts of record in Corporations , and other places , by speciall Charter .

The Kings Councell also is a Court , to deale with the punishment of contempts , and called the Starre-Chamber . But this is no Court of Law .

Statutes .

3. H. 7. cap. 1. The Chancellor , Treasurer , and priuie seale , or two of them ( calling vnto them a Lord Temporall , and another spirituall of the Kings Councell , and the two chiefe Iudges ) may examine ryots , maintenances , &c.

These are the Courts of record . A court Baron is the Court of a common person . F. N. B. 239. ꝓ Br. iurisd . 99. F. N. B. 239 g. And is for personall accounts vnder the value of xl . s. For a Trespasse lieth not in a Court baron of damages aboue xl s. And a Supersedeas lieth to the Sherife , vpon diuers plaints in the Countie Court , euery one vnder xl . s. when all are for one entire debt of xl . s. Or vpon an Action of Couenant brought there to the damage of aboue xl . s.

These cannot be kept oftner then euer is three weeks . But so it bee not oftner then Br. leet 32. from three weeks to three weeks , it may be holden as often as the Lord wil. And therefore 21. E. 4. 5. to hold of one by doing suite at his court of D. at Mich and at Easter , it is to be entended at his Court Baron ; for though a court Baron be commonly holden from 3. weeks to 3. weeks : yet suite of Court may be once , twice , or thrice a yeare , as it is first reserued .

The processe here is by precept to the bailife , good enough , though it bee but by 16. H. 7. 14. word : Inasmuch as the triall in a Court Baron is all by the Countrie , and not by Record : for all is but matter enfait .

The sutors are the Iudges , both in an hundred Court , Countie Court , or Court 6. E. 4. 3. Baron , and the bailife and sherife are but ministers .

A Court Baron is the Lords , or the F. N B. 82. Countie Court . The Lords is either of a particuler mannor , or of a whole hundred . For a Court Baron is incident to euery (a) (a) 34. H. 6. 49. mannor , and to euery (b) (b) 13. H. 7. 19. 12. H 7. 17. hundred .

The hundred Court is that whereunto all the inhabitants within the hundred owe suit . By reason of their tenements . And is in effect but a Court Baron .

The Countie Court , which is incident 12. H. 7. 18. to the Sherife . For the Sherife hath two Courts by the common law , for gouernment of the shire : his Countie Court , ( wherein one shall haue remedie against another for any matter betweene them ) and the sherifes turne . But the pleas holden before him in the Countie Court are not of F. N. B. 1● . Record , though it be by writ of Iustices .

CHAP. 2.

Of Writs Originall .

OF an action , there be two parts , Suite , and Iudgement . 10. El. Dyer 2●● . 5. El. Dy. 220.

Suite , is the parties dealing in the action : and therefore all that while it is said to depend in plea , but not after Iudgement . The partie that bringeth the action , is called Plaintife in a personall action : demaundant in a reall : he against whom it is brought , Defendant in the first , Tenant in the other : who for their helpe are allowed councell learned in the Law .

Statutes .

Westm 1. cap. 25. No minister of the King may maintaine another in any action in the Kings Court to haue part of the thing , or other profit by couenant vpon paine of punishment at the Kings will .

Westm. 2. cap. 49. None of the Kings officers shall take , or purchase , or bargaine for land , tenement , or aduowson whilest the thing is in plea , vpon paine to bee punished at the kings pleasure , as well the purchaser as the other .

Artic. super chart . cap. 11. Neither the Kings officer , nor any other shall do so vpon paine of forfeiting to the King so much of his lands as a mounteth in value to that he purchaseth . Any may sue for the King before the Iustices , before whom the plea hangeth .

32 H. 8. cap. 9. None shall , buy , sell , or get , or take promise , or grant to haue , any pretensed rights or titles to lands , &c. except the seller , or those ( by whom he claimeth ) were in possessions , or tooke the profits , by space of a yeare next before , vpon paine that the Seller , &c. shall forfeit the value of the land , and likewise the buyer knowing the same . Prouided , hee that is in lawfull possession by taking the yearly profits , may buy , &c. anothers pretensed right .

Gloucest ▪ cap. 8. Atturnies may be made in all pleas , where appeales lye not .

Met. cap. 10. In suits ; at a Countie , tything , hundred , wapentake , or Court of the Lord .

Westm. 2. cap. 10. A generall Atturny may be made , in all Counties where Iustices do iourney .

3. H. 7. cap. 1. An appeale of murder or death , may be pursued by Atturney .

The suite hath two parts , the beginning and proceeding .

The beginning is the proper dutie of the plaintife . And hath two parts .

The first matter of the suite , and originall processe .

The first matter of the suite must alwayes be brought in that Countie where the cause of suite groweth . As actions of 14. E ▪ 4 4. debt vpon an escape , may be brought in the Countie where the arrest or escape was . But not in any other Countie : A (a) (a) 2. Mar. Br. attaint 104. trespasse of battery , goods carried away , or writings broken , may be brought in any Countie ; for they are not locall . Otherwise it is of trees , or grasse cut downe , they must bee ( b ) Br. bill 35. brought in their proper Countie , if it be by bill , the Countie is set at the margent .

Statutes .

6. Ric. 2. cap. 2. Debt , account , and all such actions shall be brought in the countie , where the contract was made .

The first matter of the suite is for euery man by writ out of the Chancerie , or in Courts where writs lye not by plaint or bill : for the King alone by enquirie .

In all of the first kind , the plaintife must find suretie by some that will be pledges to prosecute the suite . And so is the forme of euerie originall Si ( the Plaintife ) fecerit it securam de clamore suo prosequendo , The entrie is , plegij de prosequendo Iohannes D●● . Rich. Roo . And these may be either to the 9. E. 4. 27. officer , or to the Court where the suite is . But a poore man in stead of sureties shall Regist fol. 228 et per Br pledg 29. giue his faith to prosecute it : whereupon the forme for him is , Et nisi fecerit & praedict , ( the plaintife ) fecerit te securum de clamore suo prosequendo per fidem suam quia panper est .

Writs that begin the suit , are originall , or Commissionall .

Originall which appoint the first processe , if the plaintife find pledges returneable in the Kings Bench , or Common place .

This must be (a) (a) ● . E. 3. 4. true Latin , for vpon habeas ibi hos (b) (b) 9. H. 7. 16. breue , or vxori (c) (c) 3. E. 3. 86. where it should be vxor , and such like , the writ shall abate , and beside (d) (d) 3 E. 3 ibid. All this that followeth is the rule of the Register . formal , As ( e ) the Generall to be put in demand , and in plaint before the speciall . As land is generall to pree , pasture , wood , ioncarie , marsh , &c. Wood is the generall of all trees growing , and therefore shall bee put in demand before Alders and Willowes which are but species of it . The entier shall be demanded before the moyetie or part or parts . The more worthie thing shall be demanded before the lesse worthie , as a messuage before land : for land that hath building vpon it , is more worthie then land without building . A Castle , before a messuage , or a mannor ( and yet it may bee parcell of a mannor . ) But the reason is because a castle is more worthie . As being a place of force and defence against the enemie in time of warre , and against Rebels in time of rebellion , a place in time of peace fit for the correction and imprisonment of great Malefactors , and a magnifical habitation for Noblemen ▪ So in a repleuin , if it bee of two Chattels , one quicke and the other dead , the liuing thing shall be first demanded .

Also it must expresse the name of baptisme , and surname , or in liew thereof , the name of dignitie both of the plaintife and defendant . But not the name of his office , which is no dignitie . As pr. q. r. Iohanni Duci (a) (a) 8. E 4. 24. E 4. 24. saith , the reason is because there are in England no more Dukes of that name : and so i● may well enough be knowne of whom it is meant : and also for the selemnitie of the creation . But otherwise it it of knights for there are 1000. Knights in England . Therefore there the writ must be pracipo I. S. militi . Lancast . is good , but not Iohanni Rectori (b) (b) 27 H. 6. 3. de D. without expressing his surname . But when an officer is to sue by reason of his office , as a (a) (a) 13. E. 3. br. 675 in act reall . prebendary (b) (b) 12. H. 4. 20. in Assise . 10. H. 7. 5. in wast. 18 Ed 4. 17. in annuitie . person , executor (c) (c) 30. H. 6. 5. gardein (d) (d) 9 E. 3. 465. 33. H. 8 Dy. 50. 37. H. 6 29. 27. H. 6. 3. by Knight seruice , &c there he must expresse the name of his office : or when one bringeth an appeale of murder , ●s brother and heire , &c.

Where there be many of one name , diuersitie of the names must be put by addition of eigne puisne , &c. else the writ shall abate .

A Corporation may sue by the name that they are corporate , without name of Baptisme or surname , as pr q. r. maiori & comunici L. &c. or Decano et Capitalo D. &c.

Statutes .

1. E. 6. cap. 7. The acceptance of a new name of dignitie shall not abate the writ .

The kings seruants in his Court or other by speciall grace of the Chancellour Regist. fol. 2●8 . & per Br. pledg 29. may here bee admitted to finde pledges in the Chancery . And then the forme is , Quia praed . ( the plaintife ) fecit nos secures de clamore suo prosequendo pro C. de com . L. et D. de com . S. summoneas , &c.

CHAP. 3.

Of Common pleas .

WRits original are concerning Lit. 116. Common Pleas , or appeales that concerne life .

Those that concerne common Pleas , lye not for or against 18. E. 4. 4. a fem couert without her husband , but (a) (a) 1. H 4. 5. Stamf. 62 , a. an appeale of felonie against her doth .

Many hauing or giuing ioyntly cause of action , may sue or be sued together in one : which is called Ioinder in action . As A. is bound to B. in one statute merchant , and 20. E. 3. Audit . Querela 28. after A. and diuers others are bound to the same B. in another statute , and B. by one deed releaseth to them all , and after sueth execution seuerally : They shall ioyne in an Audita querela , because of this Ioynt release . So one Decies tantum shall be against 36. H 6. 28. all the Iurors that take money to giue their verdict , for it is the entire act of all .

Seuerall actions of one nature , as debt , and detinue ( for these are of one nature , inasmuch 3. H. 4. 13. as the warrant of Attorny in a writ of detinue , and also the essoin . shall bee in placito debiti ) may be ioyned in one originall with seuerall praecipes , or commandements to be executed .

Prerogatiue .

Here in place of action against the King , petition must bee made vnto him in the Chancery , (a) (a) Stanf . prer. 73. or in (b) (b) Stanf . prer. 73. Parliament , for (c) (c) Stamf. prer. 42. no action did euer lye against the K. at the Common Law , but the partie is driuen to his petition , and (d) (d) 34. H. 6. 5. if the Eschetor seise goods without cause , or seise the goods of one outlawed , which outlawry is after reuersed , and account for them in the Exchequer ; the partie must sue by petition for them . And that ( in the case of hereditaments ) 9. H. 6. 15. though the King haue granted the same away . For vpon an office finding I. S. ( who was attainted of felonie or treason by matter of record before ) to be seised of certaine land , if the King seise and grant it ouer , yet a stranger that hath right to enter or bring his action may do neither against the patentee , but must to the K. by petition . Whereupon processe shall goe out against the Grantee to maintaine his title . As the Stamf. prer. 76. king grants ouer his wardship , or any other certaine estate in the land : the Scire facias for him that sueth the petition , must be against the patentee , not against the heire , in whose right the king is seised , for hee is not to pleade with the Heire , but with the King or him that hath his interest . And in a petition to reuoke letters pattents made to two 7. H. 4 33 ▪ &c. a Scire facias vpon it : the death of one of the patentees abateth not the petition , for the petition is not sued against the patentees , but against the king , nor they need not to be named in the petition , but in the Scire facias .

But whilest personall things seised for the King , remaine in the officers hands , ● . E. 4. 24. the partie that hath right may trauerse the Records that entitle the King , and so haue his goods againe , or sue the officer , or disturbe him to take the profits : As where it is found that one outlawed in a personall account , was seised of certaine land ; and in this case he shall not be driuen to a petition : otherwise it is in case of a freehold , or inheritance .

Petition is a supplication declaring the ● . E. 4. 52. parties right , where mention must be made of all the Kings title ; else it shall abate . For vpon an issue in the petition found against thc king , he shall be concluded for euer to claime by any of the points contained in the petition .

CHAP. 4.

Of Reall Actions .

THese Writs concerning Common pleas are Reall or Personall . And Lit. 116. they both againe are precipes , or Si fecerit te securum .

A precipe is that which willeth the Sherife to command the defendant to do somewhat in certaine that the plaintife sueth for , which if he do not , then to serue the first processe . The forme is , Praecipe A. quod reddat B. &c. Et nisi fecerit , &c , tunc somon' , &c. And is a praecipe quod reddat which lyeth for things in render . As of reall things , land and such other things in demesne , rent , corody , &c. of personall things , mony , goods deteined , and the like . A praecipe quod faciat which lyeth for things not in render , whether they lye in Feasaunce as a writ de consuetudinibus et seruities , Secta ad molendium , &c. or in sufferance , as a quod permittat , or in other things of any such like nature .

A Si fecerit te securum , is that which willeth the first processe to be serued without more a doe . The forme is , Si A. fecerit te securum de clamore suo prosequendo tunc sumon' , &c.

Reall actions where a freehold shall be 10. E. 9. 23. recouered are possessory or in the right .

Possessory which are to recouer a possession , as all Assises , Writs of Ayell , Besayell , and Cosinage .

In the right which are to recouer a possession mixt with the right of all which examples do follow after .

And both these may either bee of a possession F. N. B. 5 ● . or right in himselfe , or descended from his ancestors : which we call auncestrell .

Reall actions in the right , are either founded vpon the right , or for the meere right .

Statutes .

Merton cap. 8. Seisin of ones ancestor in a writ of right shall be from the time of Henrie the second .

In a mort dauncestor writ of Niefe and of entrie , from the last returne of king Iohn out of Ireland .

In an Assise of Nouell disseisin , from Henrie the thirds first passage into Gascoygne .

Westm 1. cap. 38. Seisin of ones ancestor in a Writ of right , shal be from the time of Richard the first .

In an Assise of Nouell disseisin and nuper obijt , from Henrie the thirds first passage into Gascoigne .

In a mortdancestor cosinage , ayell , entry , and Writ of Niefe , from Henrie the thirds Coronation .

32. H. 8. cap. 2. Seisin in a Writ of right shall be within lx . yeares .

In a mortdancestor , or in another possessory action , vpon the possession of his Auncestor or Predecessor , shall bee within l. yeares .

A Writ of the possession of the plaintife himselfe , shall be within xxx . yeares .

An Auowrie or Cognisance , for rent , suit or seruices of the seisin of his Ancestor , or of his owne , shall be within xl . yeares .

Formedon in remainder , reuersion , Scire facias , vpon a fine , shall be within l. yeares after the title accrew . If a man prescribe in land , rent , or such like , of the possession of his ancestor , or predecessor , he shall alledge seisin in them within lx . yeares next before the time of the prescription , title , or claime .

1. Mar. cap. 5. The Statute of limitation of 33. H. 8. cap. 2. shall not extend to a writ of right of Aduowson . Quare impedit , Iure patronatus , Assise de Darrein , presentment , droit de gard of any lands holden by knight seruice , but the time of the seisin alledged shall bee as it was at the Common Law .

These kind of reall actions , viz. where the freehold shall be recouered , lye onely against the tenant of the Freehold . Therefore Lit. 115. a release of all actions reals , is no plea , vnlesse he were Tenant of the Freehold at the time of the release , for else hee had no cause of any such action against him . Neither Old tenures fol. 2. is any such action maintenable against lessee for yeares , for he hath not the Freehold . Nor the disseisee cannot haue a praecipe quod reddat against the disseisor , which is parnor of the profits for yeares onely , notwithstanding 6 E. 6. Pl. 87. the Statute , because by the Common Law , no action lyeth against 4. E ▪ 4. 32. him . And for this cause also , non tenure of the whole , or though it be but of parcell of the thing demanded . Ioynttenancie with one not named in the Writ . Entiertenancie of the whole , or seuerall tenancie of parcel , 19. H 6. 32. 22. H 6. 12. when the Writ is brought against two or more , are good pleas in abatement of the ( a ) 45 E. 3. 5. Writ . ( b ) 37 H 6 8. 27. H. 8. 30.

Statutes .

25 E 3 cap 16. Non tenure shall not abate the writ , but onely for the quantitie .

37 E. 3. cap 17. No writ shall be abated by knowledgement of villenage , if the demaundant or plaintife will auerre that hee that alledged the exception was free , day of the writ purchased . With the freholder , may be ioyned in action , any hauing title to enter : as the morgagor with the morgagee , 41. E. 3. 16. the Lord with his villeine , but not the disseisee with his disseisor .

CHAP. 5.

Of a Plea of Land .

A Reall praecipe quod reddat , is that which is for reall things in render . And is a plea of land or other such reall precipe

A plea of land which is for land or other such things in demesne , where land in certaine is demanded , it must alwayes bee brought in a ville , or place knowne out of any ville And not in a hamlet which is parcell of a vill . But personall actions , as trespasse , and such like , may be in a hamlet . So of Dower and Assise , for there no land in certaine is demanded ; and also in an assise , he shall recouer by view of the Iurie . So in a Scire facias out of a fine nuper obijt , a Writ of mesne , couenant , wast , quare impedit . These may be in a Hamlet . Otherwise it is of a Writ of right of Aduowson .

A plea of land is a Writ of Entrie , or a writ shewing the demandants title .

A writ of Entrie is that which is to disprooue the Tenants possession by the meanes of his entrie .

Wherein Tenant in fee simple demanding Old N. B. 124. Fit . N B. 201 ● & f. of the possession of his ancestor shall say in the writ , Quod clamat esse ius & hereditatem suam . Tenant in Taile or for life , shall not so . But in his declaration set forth Fit . N●t Br. ibid. his speciall estate .

A Writ of Entrie is either against the first partie , or in the degrees .

Against the first party , when it is against him to whom the first allienation was , or that made the first disseisin .

That in the degrees , is in the Per , or in the Per and Cui .

In the Per , when he against whom it is brought commeth in immediatly vnder the first partie , as heire vnto him , or by alienation from him .

In the Per & Cui , when he against whom it is brought commeth in immediatly vnder the first parties heire or allience : For if more then these two alienations ( the Per , or the Per and Cui ) passe , the demandant is driuen to his writ of right . And the reason is , that there may be an end of suits . For no Writ of Entrie in the Post lay at the Common Law . But the same is giuen by the statute of Marlebridge . cap. 29. Which writ of Entry in the Post giuen now by that Statute , lyeth when hee against whom it is brought commeth in neither in the Per not Per and Cui , then the Writ shall be In quod , &c: nisi post dimissionem , &c. Out of all degrees , as by abatement , disseisin , eschete , recouerie , Election , Succession , Dower , Iudgement , &c. or as the third or more feffees .

The forme of all which is thus In a writ of Entrie , in the nature of an Assise , against the partie himselfe that did the disseisin , Praecipe A. quod reddat B. vnum Messuagium , &c. de quo A. iniuste et sine Iudicia disseisiuit B. &c. or in the other forme disseisiuit C. patrem , or other ancestor of B. cuius heres ipse est , &c. In the Per thus . In quod idem A. non habet ingressum nisi per C. qui illud ei dimisit qui iniuste B. &c. ( or in the other forme ) qui iniuste , &c. E. patrem , &c praedict. B. &c. In the Per and Cui thus . In quod , &c. nisi per C. cui D. illud dimisit qui inde iniuste B. or ( in the second forme ) qui iniuste E. patrem , &c. praed. B. In the post thus . In quod , &c. nisi post disseisinam quam D. iniuste fecit praed. B. or ( in the other forme ) iniuste fecit E. patri , &c. praed. B. &c. In such like manner it is of a Dum fuit infra aetatem , and of all other Writs of Entrie vpon an alienation . Marleb . cap. 29.

Writs of Entrie grow either without wrong at the first , or vpon a wrong .

Those without a wrong at the first , are grounded vpon a determination of the first estate , or a dishabilitie in the person that made it .

Vpon a determination of the estate , either by reason of a particular estate ended , or a condition broken .

Of a particular estate ended is an ad terminum qui praeterijt , or Entre ad Communem Legem .

Ad terminum qui praeterijt , is vpon a deforcement by the lessee or a stranger after a Lease for yeares , or life expired , whether the Lessee did allien , or not . But not after the death of Tenant in Dower , or by Curtesie , for that is not properly called a Terme

Entrie ad communem legem , is when tenant for life , be it his owne or anothers life , tenant in Dower or by curtesie of England doth alien and die , and hee in the reuersion for life , may haue this writ .

Of a condition broken , as Causa matrimonij praelocuti . Causa matrimonij pralocuti , is for a woman that giueth land to a man to marrie her , and he will not : but it lyeth not for a man that giueth lands to a woman .

Grounded vpon the disabilitie , are a Dum fuit infra aetatem , and a Dum non fuit compos mentis .

Dum fuit infra aetatem is by the infant , when he commeth to his full age , vpon an alienation by himselfe , or his auncestor , being within age .

But the clause that he is of full age , viz. qui plenae est aetatis , shal not be inserted in the Writ , if either it be brought in the degrees Per , cui , or post , or vpon the ancestors alienation .

Dum non fuit compos mentis , is vpon the alienation of himselfe , or his ancestors being of non sane memorie .

Those vpon a wrong at the first are either vpon a discontinuance , or an ouster .

Vpon a discontinuance , as a Cui in vita , or a Sine assensu capituli .

A Cui in vita , for the wife after the husbands death vpon his alienation of her fee simple , fee taile , or freehold , whether whether dower or otherwise , or of such a ioynt estate in them .

And in this writ claiming a fee simple , but not an estate Taile or a freehold , for there the Writ shall make speciall mention of the estate , she shall say , Quod clamat esse ius et hereditatem suam , though it be of her owne possession .

Statutes .

Westm 2. cap. 3. A cui in vita giuen to the wife after her husbands death , vpon his losing of the land by default . And the Tenant that recouered against her husband must maintaine his owne right .

If it be an estate of fee simple , and she bring not in her life time a cui in vita , the heire shall haue a Sur cui vita . But of an estate taile onely , a formedon lyeth in this case for the heire .

And of this nature is a cui ante diuortium , when it is brought by the wife after diuorcement , vpon such an alienation as before .

A fine assensu capituli is for the Successor of a Bishop , Abbot , Prior , Deane , Prebendarie , or Master of any Hospitall after the discontinuance of the Predecessor , viz. when they alien the lands they haue in the right of their Church , house , Abbey , or Priorie , without the consent of their couent , Chapter , or Confrers , &c.

Vpon an ouster , or either vpon an intrusion or a disseisin .

That vpon an intrusion is called a writ of intrusion , and is for him in the reuersion or remainder in fee simple , or for life , not in taile ( for hee shall haue a formedon ) nor for yeares , because he hath not the freehold , after the death of tenant for life in Dower , or by curtesie .

And if land bee giuen to two , and the heires of one , and hee that hath fee dyeth , and after him tenant for life dyeth . Now the heire of him in the remainder shal haue this writ . And it lyeth also for the assignee of the assignee of him in the remainder .

Vpon a disseisin , is when the disseisin is done to him or his Ancestors . As a writ of Entrie in the Quibus ; or which is all one in the nature of an Assise .

Writs that shew the demandants title , are meere possessorie , or in the right .

Meere possessorie are those which are brought by the next heire vpon an abatement after the death of any auncester , other then his father , mother , brother , sister , vncle , Aunt , Nephew , Neice , for vpon an abatement after the death of any such auncestor , an Assise of mortdauncestor lyeth as shall appeare afterwards : seised in demesne as of a fee simple the day of his death , though hee were disseised the very same day , and so died not seised at all . Of this nature are ,

A Writ of Ayell after the death of his grandfather or grandmother .

A writ of Besayel after his great grandfather or grandmother .

I writ of Cosinage after the death of his great great grandfather or grandmother , or any other collaterall Cosin , as the great great grandfathers brother .

Statutes .

Westm 2 cap. 20. In a Writ of Cosinage , Ayell , and Besayell , the point shall bee enquired whether the demaundant bee next heire aswell as in a mortdauncester .

In the right , is that which is to disproue the right of the Tenant , and is a Writ of right in his nature , or a Praecipe in Capite .

A Writ of right in his nature which sheweth how the demaundants right is growne . And is a formdon or a writ of Eschete and Dower , vnde nihil habet .

A Formdon is a Praecipe quod reddat , entitling the partie by the forme of the gift .

And is a formedon in remaynder , or a Formedon in reuerter : for a formedon in descender lyeth not at the Common Law , but is giuen by the Staute of Westm 2. Old Nat. Br. ꝑ Br. Formd 69. 3. El. Pl 235. cap. 1.

A Formedon in remaynder is for him in the remaynder for (a) (a) Old Nat. Br. 148. 149. life , or in (b) (b) F. N. B. 217. d. fee vpon a Lease for (c) (c) Fitz. ibid. life expired . For after an estate taile expired , it lay not at the Common Law : because it was a fee simple , whereupon a remainder could not depend .

A formdon in reuerter is for the donor Fit . N Br. 219. c. 30. E. 1. formd . 65. alter the issue in taile determined , as at the Common Law , if the donee alien before issue had , and after die without issue : or if he haue issue , and after he or his issue dye without issue . Contrarie it is if he had issue and then had aliened , and dyed without issue .

A writ of Eschete is for the Lord that hath a seigniorie in fee , or for life vpon an eschete .

Dower , vnde nihil habet , is a writ for Old Nat. Br. 6. ones dower , which hath receiued no part at all of it .

Statutes .

Westm 1. cap. 48. A writ of dower vnde nihil habet , shall not abate though she haue receiued part of her dower before the writ purchased , vnlesse it were of the same partie against whom the writ is brought , and in the same Towne .

A writ of dower lyeth against gardein Br. pr●● . qd rodd . 35 by knight seruice , though he be not tenant of the freehold .

A praecipe in capite is a praecipe quod reddat , for the meere right : and therefore lieth Fit . Nat. Br. 5. f. onely for Tenant in fee simple of lands holden in Chiefe .

Statutes .

Washm̄ 2. cap. 4. In place of a writ of right , a Quod ei deforceat is giuen to Tenants for life or in taile vpon loosing by default .

CHAP. 6.

Of a writ of right of ward , and a Writ of right Sur disclaimer .

OTher reall praecipe quod reddats , are those which are in respect of a seigniorie , as a writ of right of ward , and a writ of right sur disclaimer .

A writ of right of ward , is to recouer the wardship . If of the bodie , it lyeth both for gardein in soccage , and by Knight seruice : Fitz. Na. Br. 139. If of the land , it lyeth onely for gardein by Knight seruice .

Statutes .

Marleb . cap. 7 In a writ De communi custodia , if the deforcer come not at the grand distresse , the same Writ shall be reitterated , as oft as well it may bee within halfe a yeare following , and euerie time the Writ read , and Proclamation made in the Countie Court , if he come not to answer , nor the Sherife find him within halfe a year , he shall lose the custodie . Sauing his action another time , if he haue right .

Westm. 2. cap. 35. In a Writ of ward of land , or heire , or both , either of the parties dying before the plea determined , a resomons shall bee . And in the grand distresse day must be giuen that three Countie daies may be holden before the returne , in euerie of which Proclamation shall bee made , whereupon the defendant not appearing , Iudgement shall be giuen for the Plaintife . Sauing the right of the defendant , if afterwards he will claime it . So shall it be done in a writ of eiectment of gard .

A writ of Right Sur disclaimer is for the Lord to proue the Lands to be holden of him , when in an action where the seruices should bee recouered , As in an auowrie made vpon the Tenant for them : for there 13. H. 7. 27. he shall recouer the seruices inclusiue , inasmuch as he is to haue a returne in an Assise ibid. or praecipe quod reddat of rent ( for there the seruices are expresly demanded ) but not in a per quae seruitia ( for there no seruices but an Atturnement onely is demanded ) nor in a 5. E 4. 2. 13. H. 7. 27. 15. E. 4. 29. Iustification , in a repleuin , or an auowrie in an action of Trespasse ( for there the defendant shall neuer haue a returne , nor recouer his seruises expresly nor includedly , the Tenant in Court of record , viz. in Old Nat. Br. 162. the Common place , but not in Court Baron or Countie Court . For there if the Lord make auowrie vpon the Tenant , and hee disclaime to hold of him , the Lord shal be amerced , disclaimeth to hold of him .

And if in this writ of right sur disclaimer , Ibid. he can proue the land to bee holden of him , he shall recouer the land it selfe for euer : because the disclaimer is of record . 16. H. v. 1. 34. E. 3. Dis● . 24. Therefore by such a disclaimer , he is barred of all possessorie actions for the seruices , as an Assise , Cessauit , rauishment of ward , and such like : but not of a Writ of Eschete , Right of ward , right of customes , and seruices , &c. And though the Lords distresse & 16. H. 7. 1. auowrie were lawfull , yet the Tenant so disclaiming , shall recouer dammages of him , for the disclaimer giueth the Lord a better aduantage , viz. the Land it selfe .

Statutes .

Westm. 2. cap. 2. If the Tenant disclaime in Countie Court , or other Court not of Record , the Lord may remoue the plea before the Iustices to cause it to be of Record . So as he may haue a Writ of right sur disclaimer .

Glocest . cap. 4. ● Explanat . cap. 4. when land is giuen in feefarme , rendring or doing so much as amounteth to the fourth part of the value of the Land , if he ( whose land is charged ) let it lye fresh by two yeares , so as no distresse can be found in it , nor render , or do that which is contained in the writing , the other shall recouer the land by a Cessauit . But the donee comming before Iudgement , if he render the arrerages and damages , and find sufficient to do from thenceforth , that which is contained in the writing , shall tetaine his land .

Westm 2. cap. 21. If a man detaine from any Lord his seruice due by two yeares , the Lord shall recouer the land by a Cessauit . This lyeth also for the heire of the Lord against his Tenant , his heires , or those to whom he alieneth the land .

Westm. 2. cap. 41. So if religious houses that haue land giuen them , &c. withdraw the almes , &c. by two yeares , the donor shall haue the like action .

CHAP. 7.

Of a Writ , De cousuetudinibus & Seruitijs , and Secta ad moiendinum .

A Reall praecipe quod faciat is either to recouer hereditaments , or some reall thing that concerne them .

Those that are to recouer some F. N. B. 151. g. hereditament demanding of 〈◊〉 owne seisin are in the debet and solet , demanding of the ancestor seisin , they are in the debet onely , and then are in all respects as writs for the meere right , that is to say , are triable by battaile , or grand Assise

These are either in respect of a seigniorie , or to recouer some other hereditament .

In respect of a seigniorie , as a writ De Consuetudinibus et Seruitijs , and a secta ad molendinum .

A writ De consuetudinibus et seruitijs lyeth Fit . N. B. 151. b. for the Lord that hath an estate for life or a greater estate , in the seigniorie , and is deforced of his seruices

Secta ad molendinum lyeth for the Lord , when the Tenants that hold of him by Fit . N. B. 122. ● . grinding their corne at his Mill , withdraw their suit , and grind elsewhere .

Statutes .

Marleb . ca. 9. The Processe either where the Lord distreineth against the forme of this Statute , or the Tenants withdraw the suits due , is attachment , ( wherein onely essoin is allowable , and deliuerance of the distresse incontinently to remaine so till the plea be ended ) Venire facias , and the grand distresse . At which day not appearing , the distresses deliuered shall so remaine till recouerie in the Kings Courts , til which time the Lord ( in case he bee defendant ) must distraine no more ; and the Plaintife shall be dismissed without day , if the defendant come to answer , and the matter passe , against him , the Plaintife shall recouer damages .

This of damages to be recouered ( in case where the Tenant is defendant ) is to be vnderstood of withdrawing the suit from the Lord himselfe , and not from his predecessors .

CHAP. 8.

Of a Quare impedit , and a quod permittat . ,

FOr other heraditaments are a quare impedit , and a quod permittat .

A quare impedit lieth vpon a disturbance , Fit . Nat. Br. 33. h. where he , or his ancestors , or those from whom he claimeth , hauing at any time before presented to a Church , himselfe is now disturbed .

Statutes .

25 E. 3. cap. 3. Stat. 3. Vpon the Kings collation or presentment to a benefice , his title shall bee well examined , and beeing found before Iudgement vntrue , or vniust , the collation or presentment shal be repealed . And the patron or possessor which sheweth the false title , shall haue thereupon Writs out of the Chancerie , as many as are needfull .

Marleb . cap. 12. In a Quare impedit , and Assises of Darrein presentment , day shal be giuen from xv . dayes to xv . dayes , and from three weeks to three weeks . And in a quare impedit the processe shall be a summons , attachment or grand distresse .

Westm 2. cap. 5. If Coparceners make partition to present by turne , and one of them present accordingly , he that is afterwards disturbed shall haue a Scire facias , ( and not be driuen to his quare impedit ) and recouer his presentation with damagess .

An auowson ( after the death of one that hath presented ) being assigned in dower , or to Tenant by Curtesie , and they present , the heire if he be disturbed after their death shall haue a quare impedit , or darrein presentment at his pleasure . So of an auowson demised for life , yeares , or in taile , when 6. moneths passe hanging a quare impedit or darrein presentment , so as the Bishop presenteth by lapps , the patron shall recouer damages to two years value of the Church . Otherwise damages to halfe a yeares value : The disturber not being able to render damages , shall in the first case haue imprisonment of two yeares , in the second of halfe a yeare .

A Quod permittat lyeth for one that hath Common of pasture for his beasts , being Fit . Nat. Br. 123. ● . disturbed by a stranger , so as he cannot vse his Common .

CHAP. 9.

Of a Curia claudenda , Writ of Couenant reall , mesne and warrantia chartae , where of fines .

THose that are to recouer some reall thing concerning hereditaments are a Curia claudenda , or a Couenant reall , and other writs sounding in that nature .

A Curia claudenda lyeth for a (a) (a) F. N. B. 128. a. freeholder , not for a Tenant for yeares , when one that hath a Close next adioyning to him , ( b ) F. N. B. 127. b. & 128. a. F. N. B. 146. f. which he should keepe enclosed , will not do it . A writ of Couenant reall , lyeth vpon a Couenant to do a thing reall , as to leuie a fine of lands , &c. Writs in the nature of a couenant reall , are a writ of mesne and a warrantia chartae .

A writ of mesne lyeth for the Tenant ngainst the mesne , when the Lord paramount Fit . N. Br. 135. m. doth distreine the Tenant whom the mesne ought to acquit .

Statutes .

Westm. 2. cap. 9. The Tenant distreined by the chiefe Lord may haue a writ in the Countie where he is distreined against the mesne , who hauing land in that Countie , and not appearing till the grand distresse , day shall bee giuen in the grand distresse , so as two Counties may bee holden before the returne . Wherein the Sherife shall proclaime that he come to answer the Tenant at the day . At which day if he come not , he loseth his seruice , and the Tenant shall hold of the chiefe Lord by the same seruices that the mesne held . The chiefe Lord may not distreine the Tenant of the demesne if he offer the seruice due . And exacting of him more then the mesne ought to doe , that Tenant shall haue the remedy that the mesne might haue .

Vpon a returne that the mesne had nothing to be sommoned by an attachment shall go out , and vpon a nihil returned , the grand distresse with proclamation as before .

The mesne hauing no land in that countie but in another vpon such a returne by the Sherife , the partie shall haue a Writ Iudiciall to summon the mesne in that Countie where it is testified that hee hath lands , and both there and in the other Countie shall proceed to the grand distresse , and proclamation and Iudgement as before .

The mesne comming into the Count and acknowledging , or being adiudged to acquit his Tenant , and not doing it , the Tenant shall haue a Iudiciall Writ of acquittance . Whereupon if the mesne come in , and the Tenant can auer that he hath not acquitted him , he shall bee satisfied of his damages , and be quit of the mesne , and hold of the chiefe Lord , and if the mesne come not at the first distresse , then another distresse shal go out , and proclamation , and so proceed to Iudgement as before .

This statute extendeth only where there is but one mesne betweene the Lord that distreineth and the tenant , the mesne of full age and the Tenant , tenant in fee simple .

A Warrantia Charta lyeth for him that hath lands or Tenements warranted vnto F. N B. 134. d. him , either by feoffement , (a) (a) 12. H. 4. 22. release , or confirmation with clause of warrantie , where his hereditaments are lyable from Fit . Nat. Br. 134. k ●2 . H. 6 22. the time of the action brought . Therefore it is pollicie for one to bring his Warrantia charta before he be sued . For vpon vouching when he is once sued , he recouereth in value but such lands as the vouchee had at the time of the voucher .

And vpon these writs of (a) (a) 42. E 3. 5. Couent reall , (b) (b) T. H Eitz . mesnes (c) (c) Iohn per Dy. 179. warrantie of Charters , as also vpon a Writ of (d) (d) 21. E. 3. 18. customes and seruice , s a fine may be leuied .

A fine is the acknowledging of an hereditament in the Kings Court according to the couenant , to be his right that doth complaine , He that complaineth is called plaintife , and the other deforceant . And this acknowledging of it to be ones right is called , A fine sur conueyance de droit , But if the right be ackowledged to bee his , as that which he hath of the gift of the Conisor , it is called a Fine sur conisance de droit come ceo quel ad de son done . The forme of a fine is , Haec est finalis concordia facta in curia dn'i Regis , &c. vnde plac' conuentionis pendet in ead' curia sc. qd. prad' I. S. recognouit tenementa praed esse ius ipsius A. &c.

A fine may be leuied vpon a writ of warrantie of Charters , for it is in effect but a 42. E. 35. 40. E. 3. 7. couenant betweene the parties before the Iustices , and entred of record . And before the Statute of Westm. De his quae concordata sunt ( which giueth a scire fac. ) if the fine were not executed , the partie should haue a writ De fine fracto , and recouer dammages onely , which proueth that a fine is but a couenant of record .

Where one of them must needs haue such an estate at the time of the fine leuied , for against the plea that the parties to the fine 22. N. 6. 57. had nothing &c. it is no good replication , that the parties were seised &c. for if one 27. H 8. 4. 37. H. 6. 5. of them were seised it is sufficient . Which forme of pleading ( viz that one of the parties was seised ) proueth that if he haue 7. Eliz. Ploy . 360. left an estate for yeares the fine is voyd . And a fine of the land it selfe will passe away a reuersion depending vpon an estate estate for life . And this is as it were a feoffement of record . So as a freehold passeth ( a ) Lit. 12. is that in a feoffement made on pai● . &c. where a freehold passeth , be it by deed or without , there must needs be liuery of seisin , which words ( en pais ) are put to exclude fines that are feoffements of record . thereby without any liuerie of seisin . That where of the fine is leuied , or any thing contained in it , as a rent Common , &c. out of the land , an estate for yeares , or other estate in the land , &c. may be granted backe againe to the Conisor by the same fine . And this is called a fine sur graunt & render . The forme whereof is : Et pro hac recognitione , &c. the conisee concessit , to the conisor , praed' tenem' cum pertium & illa ei reddidit ( b ) 18. E. 422. in ead' curia haben' , to the conisor , &c. ( c ) 36. H. 8. Br. fines 118. for none can take the first estate but those that are named in the Writ of couenant . But euerie stranger may take a remainder . As A. leuieth a fine to B. who rendreth it backe to A. and E. his wife , &c. In this case E. hath no estate , for she was not party to the Writ .

Statutes .

27. H. 1. Stat. 1. cap. 1. De finibus leuatis . Exception against a fine , that the plaintifes or defendants , or their ancestors , were alwayes seised of the lands contained in the fine shall not from henceforh be admitted in the parties to the fine or their heires .

The fines shall two dayes in the weeke be publiquely and solemnly read , and all pleas cease in the meane time .

5. H. 4. cap. 14. All Writs of Couenant and other , whereupon sines be leuied , the Dedimus potestatem , and all knowledges and notes of the same , before that they bee drawne out of the Common bench by the Chirographer , shall be enrolled in a roll to be of record for euer Out of the which execution shal be had , if the notes or fines shal be imbezilled .

23. Eliz. cap. 3. Euerie Writ of Couenant , or other writ whereupon any fine is leuied , the returne thereof , the Dedimus Potestatem and returne thereof , the concord , note , and foot of the fine , the proclamations and the Queenes siluer : Also euery writ of Entrie in the Post or other writ , whereupon any common recouerie is suffered , the Writs of sommons ad warrantizandum , and the returnes of all these writs , and euerie Warrant of Attorny may at any mans request be enrolled . Which enrolment shall be of as great force to all purposes in Law as the things themselues if they were extant .

No fine , proclamation , or common recouerie shall be reuersed by writ of Error , by reason of false Latine , rasure , enterlyning , misentring of the Warant of Attorny , or of any proclamation misentring , or non returne of the Sherife , or by reason of any other defect of forme in words , and not in matter of substance .

Fines executed bind all persons if Lit. 104. claime be not made within a yeare , therefore it is called a fine , Quia finis finem sitibus imponaebat . And in a fine vpon a render , if 7. Ed. 2. 37. Contin . cl●●m 7. the Conisee sue not execution within the yeare but after the yeare , by a scire facias , no strainger need to lay to his claime .

Statutes .

34. Ed. 3. cap. 18. The plea of non claime , of fines from henceforth to beleuied , shall not be any barre .

34. H. 7. cap. 24. Euerie fine after the ingrossing shall be proclaimed in the Court , the same Terme and the three next , foure seuerall daies in euerie Terme , all pleas ceasing the whilest . Which proclamations so made , the fine shall conclude all priuies and strangers , except women couert , persons within xxj . yeares of age , in prison , out of the Realme , or if non saue memorie ( being no parties to the fine . ) So they or their heires take their action or lawfull entrie within fiue yeares after those imperfections remoued . Sauing to all persons and their heires ( other than parties ) the right claime and interest which they haue at the time of the fine . So that they pursue it by action or lawfull entrie within fiue yeares next after the proclamations . And sauing to all other persons such right , title , claime , and interest as first shall grow , remaine or come to them after the proclamations , by force of any matter before the fine . So they take their right according to the law within 5. yeares next after it grow , &c. And those that bee couert Baron , &c. at the time when it groweth , &c. that they or their heires take their actions or lawfull entrie within fiue yeares after those imperfections remoued .

Sauing also to all not parties , nor priuies the exception that none of the parties , nor any to their vse , had any thing in the lands at the time of the fine .

31. H. 8. cap. 36. All fines leuied by any person of xxj . yeares of age of lands entailed before the same fine , to himselfe or his ancestours in possession , reuersion , remainder or vse , shall immediatly after proclamation made , be a sufficient bar against him and his heires , claiming onely by such entaile , and against all other claiming onely to his vse , or the vse of any heire of his bodie .

1. Marl. cap. 7. All fines whereupon proclamations be not , or shall not bee duely made ( by reason of the adiournement of any Terme by Writ ) shall bee as good as if any Terme had beene holden from the beginning to the end , and proclamations therein made according to the statute .

●1 . Eliz cap. 2. Proclamations of fines shall be onely foure times , viz. once in the Terme wherein the fine is ingrossed , and once euery of the three Termes next after .

A femecouert ioyning with her husband Lit. 14● . in a fine it bindeth her for euer . Therefore here the Iustices must examine her to see that she do it willingly . For if she say 15. E. 4. 1. vpon her examination , that the husband did imprison her to leuie the fine , this fine is not to be receiued . A grant by fine of a seigniorie , rent charge , rent seck , remaynder , or reuersion , is presently good . Saue for bringing actions that runne in priuitie betweene the Tenant and him . As an action of Waste or Cosimili casu , when the reuertion 48. E. 3. 15. of Tenant for life is granted by fine , and after Tenant for life a lieneth in fee , a Writ of Eschete or Ward when the Tenants seruices are granted by fine , and after the Tenant dyeth without heire , or his heire within age . But in these cases hee may enter for a forfeiture or eschete , and seise the Ward : and shall also be receiued vpon default of Tenant for life . 37. H. 6. 5.

CHAP. 10.

Of an Assise and Iuris vtrum .

THus much of reall praecipes . Reall si fecerit te securum , are an Assise , ● Iuris vtrum , or other .

An assise is such a reall Plea Fit . Nat. B. 177. ● . meerly in possession .

An Assise of ones owne onely possession is an assise of nouell disseisin , or an assise or Nusaunce . An assise of nouell disseisin is for a freeholder against his disseisor , whether it be of land or rent , or the Baylife of the disseisor if himselfe cannot be found . And beeing of a rent charge , or rent seck , all the Tenaunts of the Land , wee call them terretenants must be named , and the whole land put in view , though hee were 31. ass. Pl 31. 32. ass. Pl. 10. disseised by one Tenant onely . If the Lord distreine the Tenant too often for the rent or seruices : that is to say , such as too great a distresse may bee taken for , as rent seruice , &c. but not for fealtie suite of Court , &c. for which there cannot be any too great distresse . And whether it bee the Lord mediat or immediate , the Tenaunt may haue an assise : the reason is , for that the tenant cannot make rescous .

Statutes .

Magn̄ chart . cap. 12. Assises of mortdauncester and of nouell disseisin shall not bee taken but in their proper Countie by the Iustice of Assise , and if they cannot bee determined there , they shall be determined by the same Iustices in their iourney : vpon a difficultie of any points , they shall be reserued to the Iustices of the Common place and there determined .

Westm 2. cap 18. 13. E. 1. Stat. de Mercator 27. E. 3. cap. 9. Tenant by elegit by Satute marchant , and by statute staple , shal haue an assise or redisseisin .

Westm 1. cap. 47. The gardein or chiefe Lord enfeoffing one of parcell of land in his hand , the heire may presently haue an assise of nouell disseisin against the gardein and tenant , and the gardein shall lose the ward , and all the remnant that he holds of the heires for life .

Westm. 2. cap. 25. A man shall haue an assise for estouers of wood , profit to be taken in wood of nuts , accornes , and other fruits of Corodies , deliuerie of corne , and other vittailes and necessaries of money to bee receiued yearely in a place certaine of Toll , trorage , passage , pontage , pawnage , and such like , to be taken in places certaine . Custodidies of woods , parks , forrests , Chases , warrens , gates , and other Bailywicks , and offices in fee . And in all these cases the writ shall be de libero tenemento . Likewise an assise is giuen for common of Turne land , fishing , and such like . Commons which a man hath appendant to a freehold or without a freehold by speciall deed , at the least for terme of his life .

Westm. 1. cap. 24. An Assise giuen against Eschetor , Sherife , or other Baylife of the King , that seiseth any lands by colour of his office , without speciall warrant or commandement , or certaine authoritie that belongeth to his office so to doe , and double damages to be recouered .

Westm. 2. cap. 25. When Tenant for yeares , or in ward alieneth in fee , the remedie shall be by an assise , as well against the feoffor as the feoffee , during the life of either of them . If by the death of either of them , remedie faile by that Writ , then the remedie shall be by a writ of Entrie .

7. Ric. 2. cap. 10. An assise of nouell disseisin of rent out of Tenements in diuerse Counties , shall bee in the confine of the same Counties .

Westm 2. cap. 25. In an assise , if one named a disseisor do personally alledge an exception whereby the taking of the assise may be deferred , as that another time an assise of the same land passed betweene the same parties , or that there is a Writ of higher nature hanging , &c. and hereupon voucheth Rols or records to warrantie , and at the day giuen him , he faile of that hee vouched , he shall be adiudged a disseisor without taking an assise , render double damages , and haue a yeares imprisonment . If such exception be alledged by the Baylife in the absence of his Master , the taking of the assise , and iudgement shall not thereupon be delayed . But his master afterwards offering to proue before the same Iustices , such an exception shall haue a venire facias for the record , which if the Iustices see , might haue been auaileable to haue barred the plaintife , they shall award a Scire facias against him that recouered , wherein the defendant shall recouer againe his seisin and damages , with his double damages susteined since the first iudgement and imprisonment of that partie that recouered . In like manner if the defendant , against whom an assise passed in his absence , shew any deed , release , whereupon the Iurie were not , nor could not bee examined , because there was no mention of them in the pleading , the Iustices vpon sight of those writings shall award a Scire facias against the partie that recouered , and cause the same Iurors to come before them . And the writings being proued true by their verdict , or by the enrolment of them , like punishment shal be as before .

Westm 2. cap 30. The Iurors shall not be compelled to find a disseisin or no disseisin , but may giue their verdict at large .

Merton . cap 3. A man disseised recouering his seisin by assise of nouell disseisin , or confession of the partie , and hauing the same deliuered him by the Sherife , if he be againe disseised of the same Tenement , by the same disseisor shall haue a writ of redisseisin to command the Sherife , taking with him the keeper of the Pleas of the Crowne , and other lawfull Knights in proper person to go to the land , &c. and by the first Iurors and other lawfull men to make enquirie . This must not be without special commandement of the king .

Westm. 2. cap. 26. A writ of redisseisin shall lye for them that haue recouered by default , redicion , or otherwise , without recognition of the assises and Iuries .

Merton . cap. 3. The redisseisor shall be imprisoned .

Marleb . cap. 8. And not deliuered without speciall commandement of the King , and besides shall pay a fine .

Westm. 2. cap. 26. He shall answer double damages , and not be repleuiable by the common writ .

Westm 2. cap. 8. In fine , writs of redisseisin must be enrolled in the Chancetie , and a transcripsit thereof shall bee sent into the Excheker in the end of the yeare . An assise F. N. B. 184. g. of nusance is for him whose freehold is spoiled by any nusance , for if he haue but a lease for yeares in the land , hee shall not haue an assise of nusance , but an action vpon his Case .

Statutes .

Westm 2 cap. 24. Giueth an assise of nusance against him to whom the Tenement is alienated after the nusance is made

6. Ric. 2. cap. 3. The plaintife , if he will , may haue a writ of nusance in the nature of an assise , determinable before the Iustices , of one bench or other , or before the Iustices of assise .

An assise of his ancestors possession only called an assise of mortdancestor , is for The forme of the writ F. N. B. 195. 14. El. Dy. 310. is that the 3 poynts to be inquired in a Mortdancester ( all expressed in the writ ) are 1 whether the ancestor were seised in see day of his death . 2. whether the demandant be his next heire . 3. whether the ancestor died within fiftie yeres next before the writ purchased . the next heire vpon an abatement after the death at his father , mother , brother , sister , vncle , aunt , nephew , or neice : for of other auncestors , a writ of Ayell , Besayell , or Cosinage , and not a mortdancestor lyeth , who was seised in demesne as of a see (a) (a) F N. B 196. k simple the day (b) (b) F. N. B. 195. d 4 El. Pl. 239. of his death , though hee were disseised the very same day , and so dyed not seised at all . But vpon lands giuen to one and his second wife ( he hauing a sonne by a former ) and the heires of their two bodies , their sonne cannot haue a mortdancestor , ( after the death of his father ouerliuing the second wife ) for hee is not next heire , but his elder brother : and therefore , by the Common Law , hee was driuen to a Formedon endescender , which was nothing else but a Writ formed vpon his case . So if the auncestor were seised in taile , the remainder F. N. B. 195. d. to his right heires , a mortdauncestor lyeth not , for there , of the demesne he is seised in taile , not in fee .

Statutes .

Magna charta , cap. 12. vide supra .

Marleb . cap. 16. A mortdancestor giuen against the Lord that will not render the land to his ward at full age .

Westm. 2. cap. 4. If a woman hauing no right recouer dower against a gardein , the heire at full age shall haue a mortdauncestor against her .

Gloucest . cap. 6. All the heires whereof one is sonne or daughter , brother or sister , nephew or niece , and the other in a further degree shall ioyne in a mortdauncester .

Gloucest . cap. 3. The heire shall haue an assise of mortdauncestor , if Tenant by curtesie alien and leaue no assets .

An assise which may bee either of his owne or his ancestors possession , called an assise of darrein presentment is vpon a disturbance when (a) (a) F. N. B. 31. g. old N B. 33. himselfe or his ancestor did last present : and therefore lyeth for (b) (b) F. N. B. 31. i. 5 H. 7. 16. tenant in years as well as for him that hath an estate of inheritance , or for life .

Statutes .

Magn. chart . cap. 13. An assise of darrein presentment shall bee alwayes taken before the Iustices of the Common place .

Marleb . cap. 12. and Westm 2. cap. 2. A F. N. B. 48. r. Iuris vtrum is such a reall plea founded vpon the right for a Parson or Vickar vpon his predecessors altenation .

Statutes .

14. E. 3. cap. 16. A Iuris vtrum , and other Writs according to their case , giuen to Parsons , Vickars , and Wardeins of Chappels , Prouosts Wardens and Priests of perpetuall Chauntries for lands in frankalmoigne , as well as to Parsons of Churches , or Prebends .

CHAP. 11.

Of a Writ of Partition , Nuper obijt , and a Quo iure .

THis is the nature of an assise , and Iuris vtrum . Those that follow are either a Partitione facienda , & nuper obijt , ( which both lye betweene priuies in bloud ) or a Quo Iure .

A Particione facienda lyeth betweene copercenors to compell particion to be made , Lit. 53 , 65 , 72. but not betweene Ioyntenants , or Tenants in Common , yet partition made there by Lit. 98. 5. E. 3. parti● . 11. assent betweene them is very good , but the husband of one of the coapareeners comming to be Tenant by curtesie , such a Writ lyeth for the other Copercener against him because hee commeth in of the state of his wife ; but not for him , against the other . Therefore here for equalitie of partition , things that otherwise cannot may be granted 2. H. 7. 5. 11 H. 4. 3. 28 H. 6. 2. 21 E. 3. 7. 28 H. 8. Dy. 29. without deed : As a rent , reuertion , seigniorie , way , auowson , composition to present by turne , &c.

Statutes .

31. H. 8. cap. 1. Ioyntenants , or Tenans in Common of an estate of inheritance , may be compelled to make partition , and afterwards shall haue aide to deraigne the warrantie paramount , and to recouer for the rate as coperceners ( after partition ) should .

32. H. 8. cap. 32. Ioyntenants , or Tenants in Common for life or yeares , or where one or many hold for life or yeares with another that hath the inheritance , may be compelled to make partition . Such partition shall bee preiudiciall to none but the parties , their Executours and Assignes .

Nuper obijt lyeth against one priuie in F. N. B. 197. bloud , that entreth after the death of the auncestor that dyed seised in demesne . And therefore beeing but to trie the priuitie of bloud , view , nor voucher , lyeth not , neither is non tenure any plea.

A Quo iure lyeth for the tenant of the F. N. B. 128. land when one challengeth common , there to trie whether in right hee ought to haue any or no.

CHAP. 12.

Of Debt and detinue , whereof a Writ of Annuitie .

THus farre of reall actions . A personall action is that where damages are to bee recouered , for at the Common Law neither shal (a) (a) 22. H. 6. 27. any but the Plaintife recouer damages , (b) (b) Br. Costs 29. nor damages lye but in personall and mixt actions , not in reall , as Dower writs of Entrie , sur disseisin , Ayell , Cosinage , &c. for in them damages are giuen by speciall Statutes . Which being but once suspended , or but against one , is gone for euer , and against all . As if the Creditor bee made an ( c ) 21. E. 4. 3. Executor to his debtor and once administer , or take to wife one of the Executors of his ( d ) 11. H 4. 83. debtor , she hauing administred before , the action of debt is gone for euer . So if two ( e ) 8. E. 4. 3. bee bound in an obligation to a fem sole , and after she taketh one of the obligors to husband , the whole dutie is extinct .

Erecutors bringing an action , must do 21 E. 4. 23. 16. H. 7. 4. it in all their names , as well of those that refuse administration , as of the rest . But an action may bee brought onely against 32 H. 6. 25. those that do administer .

Statutes .

9. E. 3. cap. 3. Stat. 1. In a writ of debt brought against diuers executors , they shal haue but one essoine before apparance , and one after apparance . He ot they that do first appeare in the Court at the grand distresse , shall answer to the Plaintife , and the Plaintife ( if it passe for ) shall haue iudgement and execution of the goods of the Testator against all named in the writ , as well as if they had all pleaded . In personell actions growing in respect of a possession in Common , Tenants in Common are in all respects as Iointenants , for they must ioyne in an action of Trespasse , for a trespasse 22. H. 6. 12. 38 E. 3. 7. done vpon their ground : in an action of account , against their Bailife of a wood , and if one of them dye , the suruiuor shall haue an action of the whole . So if Tenant for life 45. E. 3. 3. the reuertion to two sisters commit waste , one sister dyeth hauing issue , and the Tenant commit wast againe , the issue and her Aunt shall ioyne in an action of wast , and the Aunt sole recouer treble damages for the wast done in her sisters time .

In personell praecipes , damages onely shall be recouered where the thing ▪ cannot be had : for (a) (a) 1. E. 5. 6. damages shall not bee recouered in a Writ of Detinue , if the thing it selfe may be deliuered , damages (b) (b) Br. Detin . 48. I say to the value of the thing demanded : but damages for the detaining shall .

Personell praecipe quod reddats are debt and detinue .

Debt , when any thing is due vpon a contract .

Which if it be (a) (a) 50 E. 3. 16. ●1 H. 7. 5. money due from one to another in their owne right , is in the Debet and Detinet , otherwise in the detinet onely . As in debt , for the rent (b) (b) 50 E. 3. ibid. of Wheate , and Hens reserued vpon a lease for yeares , or of any Chattell , quicke or dead , in debt , (c) (c) 19 H. 8 8. by or (d) (d) 10 H. 7. 5. against an executour for rent , vpon a lease of land , though it be behind after the Testators death : or (e) (e) ibid. vpon a former recouerie of debt or damages against executors , or for arrerages found in an action 15 El. Pl. 441. of account brought by them , for all is in the right of their Testator . But against an heire vpon an obligation , &c. of his ancestor , it lyeth in the debet and detinet , for the assets which he hath in his owne right , maketh it his proper debt . So for an (g) (g) 47 E. 3. 33. Abbot or Prior vpon an obligation of the predecessor , and though he be behind himselfe onely , and against husband (h) (h) ibid. and wife vpon a recouerie of debt and damages against the wife whilest she was sole .

Statutes .

Magn. Chart. cap. 8. The pledges shall bee free so long as the principall debtor is sufficient . And answering the debt , shall haue the lands and rents of the principall till they be satisfied .

2. Ric. 2. cap. 12. No Wardein of the Fleet shall suffer any prisoner in execution to go out of prison by mainprise , baile , baston , without making gree to the partie , vnlesse by Writ , or other commandement of the King , vpon paine to lose his office , and the party to haue a writ of debt against him .

33 H. 6. cap. 10. Euery obligation taken by a Sherife or his ministers by colour of their office , of any person in their Ward by course of Law , shall bee by the name of their office , and vpon condition that the prisoners appeare at the day and place mentioned in the Writs , Bills and Warrants , taken in any other forme , it shall bee void .

32. H. 8. cap. 37. The Executors or Administrators of him that hath any rent or fee farme in fee in taile , or for life , shall haue an action of debt for the arrerages , in the Testators life time against the tenants that should then haue paied it . Or may distreine ( and make auowrie vpon his matter ) in the lands so long as they remaine in the possession of the said Tenant , or of any claiming onely from him .

A husband seised of any such estate ● any rent or fee farme in his wiues right , shall ( after her death ) himselfe , his Executors , or administrators , haue the same remedie for arrerages due in her life .

So of him his Executors and administrators , that hath a rent or fee farme during anothers life , & cesti qui vi , die , the same being vnpayed .

Prerogatiue .

When any of the Kings goods come into a subiects hands , whether by matter of record 10. El. Pl 321. or enfait , so as hee is accomptant for them , his land all times after is chargeable for the same , and subiect to the Kings seisure , into whose hands soeuer it come , whether by descent , purchase , or otherwise .

Statutes .

34. H. 8. cap 2. The land of the heires of high Collectors of any Taske , Subsedie , or lone , and of the receiuors of Courts , shal be chargeable therewith , as well that the heire hath by descent in fee taile , as in fee simple . And also that that is giuen him by the collector or receiuor couenously , and thereupon the heire may haue an action of debt against the Executors and administrators of his auncestor , wherein no essoine , protection , or wager of law is allowable . And haue execution of the goods of the auncestor , ●eing in their hands at the time of the acti●n brought .

13. Eliz. cap 4. The lands , profits , and ●ereditaments of euery accomptant , or of ●im that receiueth money for the Queene , ●r her Successors , to be imployed to the vse ●f the Queene , shall bee extended ( in the ●ature of a Statute Staple ) for the payment of the arrerages . Or the Queen if he do not satisfie within sixe moneths after the arrerage found , may sell his land , and the party may haue the surplusage to bee deliuered vnto him , by him that receiued the money vpon the sale , without further warrant : this sale to be of any land , whereof it is found by inquisition , that the accomptant taketh the profits : which inquisition , if it bee not true , the partie grieued after trauerse of the office , and that found for himselfe , shall haue his land againe without any petition , liuerie , or ouster lemaine . If any such buy land with the Queenes Treasure , since the beginning of her raigne , and pay not the arrerages as before , the Queene shal seise & retaine the land according to the rate that the partie had it . This sale extendeth not to to those officers that haue vsed to disburse the arrerages about their charge , or offices which continue , except the Queene command present payment to bee made , and then they shall haue sixe moneths as before .

This Statute extendeth not to the accomtants , whose yearely rent , or whole receip● from the beginning exceedeth not C C C ● nor to Sherifes , Eschetors , Baylifes of liberties . Also the surerties shall bee ratable according to their habilities charged for the surplusage onely which remaines not satisfied by such sale of the lands of such officers .

39 Eliz. cap. 7. The former Statute of 13. of Eliz. shall extend to sales to be made after the death of the Accomptant or debtor , and to an accompt made , or debt knowne within eight yeares after his death .

And none shall bee taken a debtor but such officers and accomptants ( in this act mentioned ) as vpon their accompts finished ( all reasonable petitions being allowed ) shall remaine debtor vpon the foot of the accompt .

After one yeare after the accompt made or knowne ( all reasonable petitions allowed ) the Queene may by her Letters Pattents sell so much as shall suffise to satisfie it , if any land which he had at any time since 2. April . 13 Eliz. or which otherwise are to be sold by the entent of 13. Eliz. The ouerplus , if any bee , shall bee redeliuered without petition or fee . Euery such sale shall bee as good as if the partie himselfe had made it for money , or other valuable consideration by bargaine , and sale , deed enrolled , feoffement , or recouerie with voucher . And shall barre the partie and his heires , and all claiming vnder him , after he ●hall be debtor or person accomptable , and ●ll whom he might haue barred by any re●ouerie , and all whose lands are to be sold ●y the entent of 13. Eliz. And shall be good ●gainst the Queene and her Successors , and ●ll claiming vnder them for any charge or ●combrance to the Queene or her Succes●ors by the partie .

Prouided , it shall not auoid any lease by ●he Queene in other sort then it should at ●he Common Law , if the Queene were sa●isfied .

This act and 13. Eliz. shall extend to vn●er collectors of Tenthes and Subsedies of ●he Clergie , shall not impeach any assu●ance made before this Parliament , bona fide nor any lease of xxj . yeares , or three liues whereupon so much yearely rent shall bee reserued yearly payable , as hath been within xxj . yeares before , nor customarie estates made according to the custome .

And of this nature is a writ of annuity , which lyeth for him that hath an annuitie (a) (a) F. N. B. 152. a in fee for life , or though it bee but for yeares be (b) (b) F. N. B. 152. b. it money or other things , as clothes , bread , &c. And is in the debet for them (c) (c) F. N. B. 152 c. all : that is to say , for any other thing as well as for money , not in the detinet contrary to an action of debt Detinue Old N. B. 62. when any thing is withholden , which is called De catalis reddendis : if it be for writings , Old N. B. 65. it is called De chartis reddendis .

CHAP. 13.

Of an Action of account , and an action of Couenant .

PErsonall praecipe quod faciats are ●n action of account , and an action of Couenant .

An action of accompt which is for an accompt to be made : as if one bee made a Baylife of a mannor , &c. then it is F. N. B. 116. p. against him as Baylife ; if receiuors of his rents , debts , &c. then as receiuor : if both Baylife and Receiuor , then as Baylife and Receiuor .

Statutes .

Marleb . cap. 23. Attachment giuen in an action of accompt against Baylifes that withdraw themselues , and haue no lands nor tenements to be distreined by .

Westm. 2. cap. 11. Hee to whom the accompt is to be made , may assigne Auditors to take it , who may immediatly commit to the next gaole the accomptant ( beeing found in arrerages ) till hee fully satisfie● whereupon the accomptant finding himselfe grieued , may bring the matter by a Scire facias before the Barons of the Eschequer .

Prerogatiue .

The King may haue it against executors . Lit. 118. And so can no other man .

An action of couenant which is for a couenant , that is to say , an agreement by deed to be holden .

CHAP. 14.

Of writs where the peace is not broken .

PErsonell Si fecerit te securums are of things done without force , or where force is coupled with it .

Of those without force , some goe not so farre as breach of the peace , others do breake it .

Those that breake not the peace , are these that follow .

Rationabili parte bonorum , for the wife & children of one deceased to haue their part of the goods .

Valore maritagij for gardein in Knight seruice , when the heire at full age refuseth to satisfie him for his marriage : and therefore F. N. B. 141. d. f. there in the writ are no words of the heires intrusion into the land .

A writ of forfeiture of marriage is to recouer the double value against such an heire marrying himselfe within age , without the F. N. B. 141 : g. Lords assent , and at full age putting out the Lord .

Entrusion of word , when the heire of land by Knight seruice entreth , and putteth out the Lord , whether during his nonage or after his full age , if the heire both intrude and denie the value of the land also , then this writ of Intrusion of ward may be brought for both .

Eiectione custodiae for any gardein by knight seruice or soccage , against a stranger , F. N B. 140. eiecting him of the land , or bodie of the heire , or both .

Quare eiecit infra terminum for lessee for yeares , against the fe●●●e in fee , or for life F N. B. 197. of his lessor , for in such a case an Eiectione firme lyeth not against the feoffee or lessee for life , because hee is not the person that doth oust him , but his feoffor . And therefore was this writ deuised . And here the terme it selfe shall be recouered , if it be not past , as in an Eiectione firme that commeth after .

Trespasse vpon the case of things not against the peace , as Assumpsits for an assumption So is the Law now adiudged . to be performed , and such like : and this lyeth not against Executors .

Here and in all other actions of Trespasse vpon the case , the writ must comprehend 38. H. 6 9. all the matter of substance , and which is trauersable as clearly as the count , vnlesse it be the day , quantitie of the land , or such like .

CHAP. 15.

Of Trespasses vpon the case , against the peace , deceit , and conspiracie .

THe other that breake the peace but not vi , are called trespasses against the peace .

And of this kinde specially are an action of deceit and conspiracie in the nature of such a trespasse . An action 22. H. 6. 4● . of deceit is vpon any deceit committed , where if it be vpon a non sommons in a plea of land , whereby he loseth the land by default , or such like , it must be brought during the life of the Sommoners , but not when all the Sommoners and veighors bee dead .

In a writ of deceit the Plaintife shall recouer all that hee hath lost . As if it bee brought vpon a recouerie in a quare impedit , 33 H. 6. 10. &c. then damages : if in a formdon then the land onely , but no damages , for he lost none in the formedon before .

Conspiracie in the nature of a trespasse is vpon conspiring by many to preiudice F. N. B. 116. a , b , ● . a man wrongfully . As if men conspire to endite one , because he arrested not a felon that passed by the Towne of M. And thereby they cause him to bee endited and amerced in the Leete of R. and F. and to bee taken and imprisoned for this amerciament till hee bee thereof acquitted in the Leet Or if men affirme and say to one A. that he hath right to such land , and procure him to sue B. tenant of the land , whereby B. is compelled to sell other of his lands for defence of this . Or if men procure one to be endited for hunting in a Parke , whereby he is taken and imprisoned , and put to expences till hee haue acquitted himselfe of this trespasse .

CHAP. 16.

Of Trespasse whereof Parco fracto , rescuous , and eiectione firmae .

SVch are those without force : coupled with force is an action of Trespasse , for a trespasse done whether in goods or vpon his land . And so if it be of a bodily trespasse , as batterie , &c. But in maime and rape it is called an appeale . An action of Trespasse brought in a Court baron , F. N. B. ●39 . d. F. N. B. ●5 . f. 86. a. whether by plaint in the Court of a mannor , hundred , or Countie Court , or by writ in the County Court , must not suppose it to be done by force and armes , for then a ( ● ) F. N. B. 239. d. Supersedeas lyeth shewing that a plea of Trespasse Quare vi & armis shall not be holden in a lower Court then before the King or other Iustices by his commandement . And therefore no Capias lyeth there either in Processe or execution , but in Courts of 3. H 6. 54. Record onely .

Statutes .

Marleb . cap. 38. A writ of Trespasse is giuen to the Successors ( in religious houses ) for goods taken away from the Predecessor , whether hee commenced action in his life , and died without Iudgement , or though he commenced no action .

And likewise to recouer their owne seisin against intrudors in time of vacation , wherein damages are also giuen .

Marleb . cap. 4. If the Lord distreine for his seruices when none are due , yet he shall not bee punished by fine and ransome , but onely be amerced .

Weshm̄ 1. cap. 20. Trespassors in Parkes and ponds attainted at the suite of the partie , besides making large amends according to the Trespasse and fine , at the Kings pleasure , shall haue three yeares imprisonment , and find good suretie not to commit the like trespasse . And if he cannot find suretie , he shall abiure the Realme . Being a fugitiue , and hauing no land nor tenement , whereby to be iustified , he shall be proclaimed from Countie to Countie , and if hee come not therevpon outlawed , if none do sue within a yeare and a day , the King shal haue the suite .

5. Ric. 2. cap. 7. None shall make entrie into lands or Tenements , but where entrie is giuen by Law . And in such case not with strong hand nor multitude of people but in peaceable manner .

He that is conuict of the contrarie shall be imprisoned , and thereof ransomed at the Kings will .

15. Ric. 2. cap. 2. At all times that such forcible entries bee made , and complaint thereof commeth to any Iustice of peace , he shall take sufficient power of the Countie , and go to the place , and if hee find any that hold such place forciblie after such entrie made , they shall be taken and put into the next gaole , there to abide , conuict by the Record of the same Iustice , till they haue made fine and ransome to the king .

8 H 6 cap 9 The like for them that make such forcible entrie into lands or other possessions , or them hold forciblie .

And whether the parties bee present or voided before the Iustices comming , yet he shall enquire of the matter by the people of the same countie in some conuenient place , and shall cause the Tenements so entred or holden to be reseised , and restore the partie ( so put out ) into full possession .

The partie put out or disseised in this manner , shall recouer treble damages against the disseisor , or any feoffee comming in by fraud .

31. Eliz. cap. 1● . No restitution vpon an enditement of forcible entrie , or holding with force , shall be good , where the partie hath beene in quiet possession three whole yeares next before the enditement , and his estate not ended .

Merton cap. 6. A lay man rauishing , or marrying a Ward within 14. yeares of age shall be imprisoned , besides losse of the value of the marriage .

Westm. 2. ca. 35. One that hath no right , taking away the Ward , shall be imprisoned two yeares , rhough he restore the child not married , or satisfie for his marriage . Not restoring him vnmarried , or not be able to satisfie for his marriage , ( in case hee haue married him ) he shall abiure the Realme , or haue perpetuall imprisonment . The forme of the writ both when the heire is in the same Countie or carried into another , is there set downe .

If the defendant there come not vpon the distresse , he shall be outlawed .

The plea shall proceed though the heire dye . If the Plaintife die before the plea determined , &c. a resommons shal be against his executours or heires ( if the executours haue no assets ) to satisfie the value of the marriage .

Speciall actions of Trespas are these F. N B. 100. that follow .

De parco fracto for taking a distresse of beasts and other things distreined for damage fesant , or for rent & seruices behind , not of the pownd , whether common pownd or other place that is a lawfull pownd , and whether hee that so brake the pownd bee proprietor of the beasts , or no. And this lyeth for him that distreined , not for him whose the close was , where one distreineth and putteth the beasts by licence into his friends Close , for it is not the pownd of the owner of the soile , but of him that did distreine , and the other shall haue an action of Trespasse , Quare clausum fregit .

Rescous for taking such a distresse away F. N. B 101. c. F. N. B. 102. f. before it be impounded . And here the partie must needs haue possession of the beasts , or things so recussed ; for if he be disturbed before he do attach or distreine them , a writ of rescous lyeth not , but an action vpon the case .

Eiectione firme when (a) (a) F. N. B. 220. h. lessee for yeares of land is ousted , be (b) (b) F. N. B. 220 f. it by the lessor or a stranger , where the terme it selfe shall bee recouered if it be not past , as in a Quare eiecit infra terminum before .

CHAP. 17.

Of Appeales that touch life .

THese are the Common pleas , an appeale that concerneth life is the parties (a) (a) Lit 116. priuate action , prosecuting also (b) (b) 8. El. Pl. 476. for the crowne in respect of a felonie , be it a (a) (a) 33 H. 8. Dy. 50 petie Treason , or other felonie whatsoeuer . But for (e) (e) 33. H. 8. ● . Stamf. 50. high Treason no appeale lyeth .

Appeales of the death of a man are giuen to the heire of the partie slaine , for the husband shall not haue an appeale of the death of his wife , but her sonne . So the puisne 7 E. 4. 15. brother of the whole bloud shall haue the appeale , and not the elder brother of halfe bloud . But the elder of the whole bloud shall .

Statutes .

Glocest cap. 9. An appeale of the death of a man must be brought within the year .

Magum chart . cap 33. A woman shall haue none but onely of the death of her husband .

2. E. 6. cap. 24. Enditement or appeale good in the Countie where he dies , though the poysoning or stroke were in another .

3. H. 7. cap. 1. One acquitted vpon an enditement of murder , or manslaughter , or as accessarie shall go at large till the yeare and day be passed , within which time no appeale may be brought ( if no Clergie be had before ) and all aduantages therein saued , as if the acquitall had not beene .

So against the accessories , though the principall were attainted at such suit of the King .

CHAP. 18.

Of writs of right Pattent .

THus far of originall writs , Commissionall Old N B. 12. A writ of right patent . F N. B 85. of Trespasse . F N. B. 2 f. of a Writ of right patent . F N. B. 86. of Trespasse vicontiel . are those which are not returnable but determinable before the parties to whom they are directed . And are but in effect commissionarie , or meere commissions : of the first sort are those that giue authoritie to a Court baron to hold plea where the sutors are the Iudges , not the sherife or steward . These are a writ of right patent or a Iusticies . In both which the some course is 6 E. 4 3. ●5 H. 6. 5. holden , as in those that went before , viz. pledges as before , count as in them , and the same both processe that is in the writs originall of that nature . As in a writ of right patent , a praecipe in the nature of a grand cape and petit cape . Triall by battaile or grand assise , &c. in Iustices or viecontiell , writs of debt , accompt , &c. Somons , of trespasse , &c attachment , but not a capias in any case , for that lyeth onely in a Court of record . Also many actions of one nature may be ioyned in one Iusticies with seuerall praecipes . So in plaints , bils , &c.

A writ of right patent is a writ for the (a) (a) F. N. B. 1. b. meere right of Tenements holden of a common person , as land , (b) (b) F. N. B. 30. auowson , or rent (c) (c) 14 E. 3 dr. 31. seruice : but not (d) (d) ibid. rent charge , rent secke , or a (e) (e) F. N. B. 1. b. Common , to be brought in the Lords Court of that mannor . But (g) (g) F. N. B. 3 c. & 8. a , b. if hee hold no Court , or otherwise ( f ) Old N. B. 1. (h) (h) F. N. B. 2. f. yeeld his Court to the King for that time , at the prayer either of the Tenant or demaundant , then it may be in the Kings Court with this clause , Quia B. capitalis dominus nobis inde remisit curiam .

And this must shew by what seruice the F. N. B. 1. i. F. N. B. 4. land is holden . The writ remaineth alwayes with the party himselfe So doth no ( b ) Old N. B. 10. F. N. B. 9. b. Old N. B. 10. Ibid. 8 El. F. N. B. 9 b. It lyeth also where the Ancestor died seised . F. N. B. 9. b. Old N B. 10. other writ originall . If one priuie in bloud not past the third degree , enter after the death of the auncestor that died in demesne not seised As where a man letteth for life , and dyeth in the life of the Lessee , hauing many coheires , and after that Lessee for life dyeth , and one of the Coperceners entreth into al , or where the ancestor is disseised and dieth , and one copercener entreth into all , there such a writ of right patent , F. N. B 9. g. for the other coparcenar , or for the elder brother , if the yonger enter into all , is called a writ of right De rationabili parte terrae . And therein the grand assise nor battaile Old N B. 10. F. N. B. 9. g. F. N. B. 9. n F. N B. 197. ● . d. 7. H. 6 8. shall not bee ioyned for the priuitie of the bloud : nor view nor voucher lyeth , neither is non tenure any plea , for it is to trie the priuitie of bloud , as a Nuper obijt that went before . F. N. B. 6.

A woman that hath receiued part of her dower shall haue a writ of right of dowrie patent for the remnant , whereof she is to bee endowed , wherein the same things are to be obserued that were in ● writ of dower , vnde nihil habet before .

CHAP. 19.

Of Iusticies .

A Iusticies is a writ that giueth the Countie court power to hold plea. And therefore is called a Vicontiel writ , of this sort are .

1 An assise of petie nusaunce is where a mill , or such like , is leuied to ones F. N. B. 184 b. nusaunce .

All of them are comprehended in these verses ; 〈…〉 rica ca〈…〉 gultum ges lendi●● Fab , fur , porta domus , vir , gur , ●● , murus ouile : 〈…〉 Et pons ; traduntur haec vicecomitibus .

2. For admeasurement of things , as , F. N. B. 148. Admeasurement of dower by the heire , when his gardein or himselfe endowed the wife in his nonage of more than she ought . ibid. But by this writ she shal haue no new land assigned to her in dower . But onely there shall be taken from her so much of the land as amounteth aboue the third part of the land , whereof she ought to be endowed .

Admeasurement of pasture by a commoner F. N B. 125. b & d whom another commoner wrongeth by putting in more beasts into the Common then hee should , whether the Common be appendant or appurtenant , so it be to a certaine number , wherein all the Commoners as well those that haue not surcharged , as those that haue , and also the Plaintife himselfe shall be admeasured But it lyeth not for the Lord against his Tenants surcharging , for he may distreine the surplusage for damage fesant . And as some say , may haue an assise , for it is a disturbance of the profit of his soile . Nor for the Tenant against his Lord surcharging , but he shall haue an assise of common .

Statutes .

Westm. 2. cap. 7. A gardein may haue a writ of admeasurement of dower , and the heire also at full age , if the gardein follow it faintly .

In Writs of admeasurement both of dower and pasture after the great distresse , Proclamation shall be made two Countie dayes , whereupon if the partie come , the plea shall proceed : if not , admeasurement shall be made in his default .

Westm 2. cap. 8. When the same partie after admeasurement another time surchargeth , a writ to enquire if that second surcharge shall go out either iudiciall , if the former admeasurement were before the Iustices , or otherwise originall out of the Chancerie . And the beasts surcharging the pasture , or their value , shall be answered to the King .

3 A Natiuo habendo for the Lord that F. N. B. 77. a. hath an inheritance in any villeine , but not an estate for life or yeares , for this writ is in F. N. B. 77. b. his nature a writ of right to recouer the inheritance of his villeine When his villeine departeth away from him . And here if the defendant plead that he is frank , the Sherife F. N B. 77. a. cannot proceed .

4 Rationabilibus diuisis for that Lord whose land or waste hath by little and little Old N B. 73. beene encroched vpon within time of memorie vntill now , by a Lord whose seigniorie adioyneth in another ville , against the Lord so encroching . But if the encrochment Ibid. 73 , & 74. bee at once , whether now or before time , there an assise of nouell disseisin lyeth , and not this writ .

5 A homine replegiando , for one imprisoned , , F. N. B. 66 ● . or in prison detained where he should not . As being baileable , or claimed as (a) (a) F. N. B 66 f. a villeine , or in (b) (b) F. N. B. 67. ward , where in deed he is frank out of ward .

6 A repleuin for goods or chattels distreined , F. N. B. ●8 . d 4 H. 6. 30. which according to the nature of the plea ministred by the parties , groweth to be either a reall or personell plea , as vpon property claimed then is it personell , if the defendant auow the taking , for seruices or rent behind , &c. then it becommeth reall , &c. and as strong as a praecipe quod reddat , inasmuch as he is to haue a returne . And therefore he shall in that case haue aide before any plea pleaded , as in a praecipe quod reddat . And this may be both by Writ and F. N B. 70. ● , b. plaint in any Court baron , as well as in the Countie Court . And beeing by plaint , F. N. B. 70. b. though in the Countie Court , it shall not proceed if any thing touching the freehold come in question , as if the defendant auowing for damage fesaunt , the Plaintife iustifieth by reason of Common of pasture .

Vpon the pluries not serued by the Sherifr , his power is determined , and the 2 H. 7. 6. parties shall plead in Bank .

Statutes .

Marleb . cap. 21. The sherife may repleuin beasts not onely without but within a libertie also , if the baylife of the libertie will not .

Westm 2. cap. 2. The sherife or baylife shall take pledges of the plaintife not only de prosequendo before they make deliuerance of the beasts , but of returning of the beasts if a returne be adiudged , hee that taketh pledge otherwise shall answer the price of the beasts . Vpon a returne awarded to the defendant , the writ De returno habendo shal haue this clause , ( that the sherife shall not deliuer them without writ , wherein mention shall be made of the iudgement . ) And therupon the plaintife ( if he will ) may haue a iudicial writ to the sherife to deliuer him the beasts .

Vpon a returne awarded , after which if a returne another time be awarded , there shal be no more repleuins . And if vpon his default the second time , or otherwise the defendant be adiudged to haue a new return , the distresse shall remaine yereplegiable .

1. & 2. Ph. & Ma. cap. 12. Euerie Sherife of a Shire ( being no Citie ) shall at his first 4. Deputies to make Repleuins . Countie day , or within two moneths after receit of his pattent , proclaime in the Shire towne foure deputies at the least , dwelling not past twelue mile one from another , which in his name shall make repleuins as the sherife might do himselfe .

7 Many of the actions that went before , both for Reall things to be done as , ( a ) F. N. B. 151. b. Ibid. 123. a. Ibid. 123. f. Ibid 135. ● . Ibid 148. b. Ibid. 152. b. Ibid 119. g. Ibid. 138. b. Ibid. 117. b. Ibid. 145. c. Ibid. 85 f 86 g. In Ibid 86. For they are as a● Commission in effect . And the Sherife may determine them by Enquest , according to the course of the common Law . Consuetudinibus & seruitijs : secta ad molendinum . Quod permittat : mesne : Dower , vnde nibil habet : and also personall actions , a● Annuitie , debt , detinue , accompt , coue●● , trespasse , to what summe soeuer , may as well be brought in the Countie by Iusticies , as to bee returnable in the Common place .

CHAP. 20.

Of meere commissions .

MEere commissions are these that follow : Being all of them to bee F. N. B. 110. b. directed to choice persons , such as it shall please the King .

Oyer and terminer to heare ● determine vpon some heynous trespasse committed , as rebellious assemblies , insurrections , Ibid. and such like . And these are called Iustices of oyer and terminer .

Statutes .

2. E. 3 cap. 3. It shall be granted onely to Iustices of the one Bench or other , or to Iustices errants .

In these and such like commissions lye properly a writ of Association , and Si non omnes .

Association is a writ for other to be associate into their company , as fellow Iustices together with them , and may bee directed to the Iustices themselues to admit them , or to the parties that shall be so associate F. N. B. 111. b. to signifie their association . That (a) (a) F. N. B. 111. d F. N B. 185. ● . in an assise . to the partie is patent . The (b) (b) F. N. B. 111 d Fit . Nat. B. 111. c. other to the Iustices to admit him is alwayes close .

Si non omnes is a writ for the rest to proceed , although the other come not . To bee directed as well to the partie to be associate as to the other Iustices . Patent (c) (c) F. N B. 186. ab . to the partie , close (d) (d) F. N. Br. 221 to the Iustices .

Ad quod damnum to enquire what hurt it may be to the King , or countrey , or any other for the King to grant such or such a thing , as a licence to alien in mortmaine , or to alien lands holden of the King in chiefe : or to grant liberties to any Citie or such like .

Perambulacione facienda to enquire of the Old Nat. Br. 74. bounds of two Seigniories or Townes , where an encrochment by little and little is supposed to haue beene made . And this must bee by the mutuall assent of both the Lords . But if such encrochment were at once , whether now or heretofore an assise of nouell disseisin lyeth , and not this writ .

CHAP. 21.

Of Plaints .

SO farre of Writs , it followeth to speake of Plaints and Bils . Both being in such Courts as hold plea without originall writ .

A plaint is in matters that concerne common pleas .

A plaint of Trespasse brought in a court baron , whether mannor , hundred , or countie 22. Ass pl. 64. Br. Iur 98. 14 H. 8. 15. Ibid. Court , shall not proceed if the freehold come in question . But a suit by writ in the Countie Court may . Therefore in such case vpon a plaint in the Countie Court , the partie hath no remedie , but a writ of Trespasse vicontiell , and thereby the Sherife may determine the issue , though the freehold come in debate . But that is no remedie in other Court Barons .

CHAP. 22.

Of Bils .

A Bill is in pleas of the Crowne . Stamf. 64. As an appeale of felonie , mayme , tape , &c. may be by Bill before any ( a ) Stamf. 55. ● one Coroner of the Shire , as well ( b ) Stamf. 64. as by writ originall , finding first sureties to the Sherife .

One whose attendance is necessarie in 6 E. 4. 3. any Court , as the officers and Atturnies there , shall sue and bee sued in forme of plaint , without writ originall , which is called a Bill priuiledge . But albeit the Cooke or Butler of a Iudge , or other officer of a Court shall haue their priuiledge if they be suedels where , yet a Bill lyeth not against them : But against the officers and Atturnies it doth , for they are members of the Court , and their attendance necessarie . And they shall be foreiudged of their office , if being demanded to doe them they make default . But an Atturny in the Kings shall not be sued by Bill , for no Atturny is there of record , nor his presence necessary . Otherwise it is in the Common place .

CHAP. 23.

Of a Quo warranto .

Prerogatiue .

THe King hath a speciall me 〈…〉 10 H. 7. 14. suite for trying of the right ●● fr●●chise vsurped vpon him , called ● Quo warranto : and is to be brought before the Iustices of Eyer . Therfore here the allowance of a franchise before them , bindeth the King Otherwise 〈…〉 vpon a suite in the common place .

Statutes .

18. E 1. A Statute of , Quo Warranto . Quo warranto in Iustices circuits . Pleas of quo warranto from hencefoorth shall be pleaded and determined in the circuits of the Iustices .

18 E. 2. Stat. of Quo warranto . A publike proclamari fac ' , shall bee awarded to those that claim liberties to know by what warrant they claime them , wherein they shall haue a warning of fortie dayes . The partie that claimeth liberties beeing before the King , it shall not bee in default before any Iustices of their circuits . And beeing impleaded before one or two Iustices , the same Iustice before whom he is impleaded , shall saue him harmelesse before the other . If he come not at the day , the liberties shal be taken in the Kings hands in name of a distresse , and when they , appeare , be repleuied vpon their demand . In which repleuins they shall answer immediatly .

If their ancestors died seised , then the K. shall haue a sommons for them to appeare before the King , or his Iustices of assise : at which day if they come not , nor be assoygned before the King , and the King do tarrie longer in the same Shire , such order shall be taken as in the circuits of the Iustices . And if the King depart from the same Shire , they shall bee adiourned vnto short dayes , and haue reasonable delayes according to the discretion of the Iustices , a● it is vsed in personall actions .

CHAP. 24.

Of Offices for the King .

THese are the suits that euery one may haue . Enquirie for the King is when matter for the King is found by a Iurie called an enquest of office , whether the enquirie bee by officers themselues , as Sherifes , Eschetors , Coroners , &c. virtute officij , or virtute breuis , or commissions to them directed . And here the iust number of twelue is not of necessitie , but may bee sometimes F. N. B. 1●● . ● . more or lesse .

An enquirie is an office or presentment . An office which findeth matter to entitle 21 E. 3 2. the King to some possession , for an office is a title for the King , but finding but for a common person it is but an euidence .

If such an office bee found for hereditaments , and the King entitled by matter enfait , 3 H. 7. 3. that is to say , by no other record but that onely , as if the office find that I. S. the Kings Tenant died seised , the partie may either trauerse , to say , I. S. was not seised , or confesse and auoid it by saying , that himselfe was the Kings Tenant , and disseised by I. S. and so I. S. died seised beeing in by disseisin , &c. And this is called a monstrans de droit . But if the office entitle the King by matter of record , as that I. S. was attainted of Treason , and ceised of certaine lands there onely , a petition lyeth to the King , because this is a double matter of record , and therefore neither can the partie trauerse it by denying I. S. to be so seised , nor haue his monstrans de droit to shew that I. S. did disseise him ; &c. or that he enfeoffed I. S. vpon condition , and that I. S. brake the condition before the attainder . All this is to be vnderstood so long as the record of the attainder continueth in his force . But the party may trauerse the attainder well enough , as to say , nul tiel attainder . j. that 4 H. 7. 7 there is no such attainder , and vpon that being found for him he shall haue the land , without being driuen to his petition , otherwise not , and the reason is because the office entitling the King by a matter of record , this title cannot be auoided , but by as high a matter , and not by the plea or allegation of the partie : vpon as high a matter of record to auoid the office , as the office it selfe , a man may trauerse it though the K. be entitled by double matter of record . As being found by office that I. S. was attainted of Treason by Parliament , & his lands forfeit , and that hee was seised of B. acre , whereby the King seiseth it . Now if another act of Parliament restore the heire to all the lands whereof the ancestor was seised , and adnull the auncestors attainder , his heire shall haue this by way of plea without petition .

If the office be for personall goods , the 4 E 4. 24. party may alwaies haue a trauerse or plead any matter vnto it , and so haue his goods againe , vnlesse the eschetor haue accompted ( a ) Ibid. 34 H. 6 5. 4 E. 4 ▪ ibid. for them . And that though the office find the Kings title to be by matter of record : as that I. S was attainted of felony or treason , or outlawed in debt or trespasse , & was at the time possessed of a horse , or of such and such goods , wherein truth the property was vnto a stranger . That stranger may haue a trauerse .

The King vpon office finding for him , if his entry be lawful , and the possessions to be had at the time , is presently in possession , as in wardship or eschete of land found by 14 H. 7. 23. 25. office : but an office finding that the kings tenant hath ceased , or his tenant for life committed Stamf. Prer. 54. wast , vesteth no possession in the K. for his entry is not lawful , but he is driuen to sue a scire facias . So if an office entitling the K. to things not manuell , that is to say , where of no profit is to be taken , forthwith vntil they fall as a rent common , &c. this vesteth no possession till the day . Also he shal be answered of all the mean profits from the time of his title . As vpon an alienation in mortmaine found by office , from the time 41 E. 3. 11. 11 H. 4. 5. of this a lienation appearing of record , vpon the kings letters parents adnulled for insufficiencie from the very time of the grant .

An Eschetor here may find offices ex officio , 4 E. 4. 24. ● H. 4. 5. as well as virtute breuis , or Commissionis . But not of outlawry of felonie , or such high matter of record without warrantie paramount and certification by writ of record Those virtute breuis o● commissionis are returnable in the Chancerie . The other properly in the Exchequer . But may also be returned into the Chancerie .

Statutes .

36. E. 3. cap. 13. Stat. 1. No Escheter shall take enquests of office but indented betweene the Iurors and him , else they are void .

33. H. 8. cap. 22. Set virtute officij onely to finde an office of lands holden of the King of v. l. value or aboue , paine v. l.

8. H. 6. cap. 16. Take enquests but of people impanelled by the Sherife , and those enquests must be returned within a moneth after the taking . Paine xx . l. So of Commissioners .

23. H. 6. cap. 17. Take enquest virtute breuis , but within a moneth after deliuerie of the writ , his fees are set downe .

1. H. 8. cap 8. Made perpetuall . 3. H 8. cap. 2. Sit vnlesse he haue lands , &c. to the cleare yearely value of xl . Marks . Paine xx . l.

Delay to take the verdict when the Iurie offer it , paine C. l ▪ So of Commissioners .

Be Eschetor in three yeares againe after that yeare ended .

34. E. 3. cap. 13. Stat. 1. A Trauerse giuen to the partie whose lands are seised by office for alienation without licence , or nonage of the heire in Ward , it shall be sent to the Kings Bench to be tried .

36. G. 3. cap 13. Stat. 1. Vpon a trauerse or Monstraus de droit , the Chancellor may let him ( that tendreth it ) the Lands holden to farme finding suretie to do no wast .

8. H. 6 cap. 16. They shall not bee let to farme till the enquests returned , nor in a moneth after , within which time the partie grieued may haue the benefit of the former Statute .

All letters pattents within the moneth shall be void .

18. H. 6. cap. 6. All letters pattents made of lands or Tenements before office found or returned shall be void .

1. H. 8. cap. 16. The partie shall haue 3. moneths libertie after the office returned to tender his trauerse .

2. E. 6. cap. 8. Where an office is found for the King , he that hath interest for years or by Copie in the bond , or any rent Common , office , fee , or any profits of whatsoeuer estate out of the land shall haue them , though they bee not found in the office in such sort as they shold if no office had bin at all . When land is found holden of the K. immediatly , and that it should descend or come to an heire within age , which is or ought to be in the Kings ward , that heire within age may haue a Trauerse .

The partie grieued may haue a trauerse immediatly or after at his pleasure , when one is found heire where another indeed is heire , or when one is found heire in one Countie , and another found heire to the same person in another Countie , or when one vntruly is found lunatick , ideot , or dead

The party grieued may haue trauerse or Monstrans de droit ( and shall not be driuen to petition ) when it is vntruly found that one attainted of treason , felonie , or praemunire is seised of lands , whereunto another hath iust title of an estate of freehold . And ●lthough the King bee entituled in such ●nds by double matter of record .

Vpon euery such trauerse a Scire facias ●hall go out as in trauerses or petitions be●ore , and the defendant therein haue the ●me aduantage that they had in a Scire fa●ias in a petition before .

In euerie trauerse pursued by vertue of ●his act , where by the Common Law the ●artie were driuen to petition , two writs of ●earch shall be granted . After Iudgement ●pon a trauerse sued by vertue of this act , if ●t appeare by matter of record that the king ●ath a former title , the same shall be saued ●nto him .

Artic. super chart . cap. 19. When the Es●hetor or Sherife seise land into the Kings ●and without cause : vpon ousting of the Kings hands the partie shall haue the mesn ●ssues restored to him .

20. E. stat. De Escheatoribus If the Esche●or by Writ out of the Chancerie seise land ●nto the kings hand , and after vpon inqui●ition no title is for the King to haue the ●ustodie . An ouster lemain shall be awarded ●or the partie out of the Chancerie .

Prouided , that if any thing afterwards ●ay be found in the Chancery , Exchequer , ●r Kings Bench for the King , a Scire facias ●hall go out against the party . And if the King haue right it shall be answered of all ●he issues from the time of the Eschetors ●irst seising of the land .

23. H. 6. cap. 17. In a Scire facias vpon ● Trauerse against any pattentee no protestion allowable Vpon an office found virtute 14 E. 4 5. 6 H. 7. 15. officij , whereby the King is intituled ●● ones wardship , the heire shal neuer haue liuery , that is to say , the land deliuered 〈◊〉 of the Kings hands . But vpon a perfect office ( a ) Stamf. prer . 52. virtute breuis , or commissionis , if it b 〈…〉 ( b ) F. N. B. 235. c. speciall writ or commission , not a gener 〈…〉 one to enquire of all wards he may . Therfore here the heire is allowed these commissions following , or writs in the nature of such commissions : viz. First , for the 〈…〉 ding of an office for the King , then for the hauing of the land out of the Kings h 〈…〉 . Those for the finding of an office are , 1. ● ( c ) F. N B. 252. Diem clausit extremum , Mandamus , & Deuenerunt , to enquire what lands holden of the King , and what of other , the ancestor 〈◊〉 seised of the day of his death , the value , the day of his death , who is the next heire , 〈◊〉 of what age .

The Diem clausit extremum is to be ●●ed within the yeare after his death . 14 E. 4 c. F. N. B. 253. c.

Statutes .

14 E. 3. cap. 12. Lands by ward in the Kings hand shall be let to the next friends of the infant , to whom the enheritance cannot descend , if they offer speedily after Diem clausit extremum in the Chancerie to render till the Infants age , as other will without fraud .

The Mandamus after the yeare . And Stamf. 52. F. N B. 253. ● . F. N. B. 253. b. Stamf ibid●. Fitz ibid. 4 ● . ● 24. ●ere it must further be enquired who took ●e profits . The Deuenerunt is when the ●uncester dyed in ward to the King . 2. a ●uae plura , melius inquirendum , & Datum est ●obis intelligi , vpon defect in offices found by ●ertue of such writs or commissions , but ●hese shall neuer goe out vpon an office ●ound virtute officij . Quae plura vpon leuy●ng F. N. B. ●●5 . out of any land in those offices .

Melius inquirendum vpon any other de●ect in the office , as if the office were insufficient (a) (a) E. 4. 24. or vncertaine , or the (b) (b) F. N. B. 255. land of greater value , then is found in the office : or ●eld by other seruices , or the Tenant seised of other estate .

Datum est nobis intelligi , vpon an office finding 2 H. 7. 2. lands to be holden of any other person , when there is a record to proue that is holden of the King , but this writ shall not be vpon a bare surmise .

Those for hauing the land out of the Kings hand are an Aetate probanda , and F. N B. 257. a writ of Lyuerie . Aetate probanda is to enquire whether he be of full age , or not , before which time he is not to haue lyuerie . A writ of Lyuerie is after a perfect office , Stamf pr● . 52. ( for no liuerie shall be vpon an insufficient office ) finding a tenure in chiefe whether by knights seruice or soccage : and whether F. N. B. the heire then be within age , or of full age . But he that holdeth of the King by knight seruice , but not in Capite , shall not sue liuerie . 32 H 8. Br. liuerie et ouster lemain 62 But because none can enter vpon the King , the heire ( if hee were within 〈…〉 when he commeth to his full age shal 〈…〉 an ouster lemain , to haue all the la●●●●●liuered to him at once by the King , which ( a ) 44. E. 3 25. is called a liuerie , for if this be sued and ●● mention made of an auowson , all shall ●● reseised , and the King answered of all t●● mesne issues . And a liuerie must be entire , and not by parcels . The manner thereof i● ( b ) 2 H. 7. 12. this , when the heire in the Kings Ward is ( c ) F. N. B. 156. of full age , he shall haue a writ out of the Chancerie to the keeper of the priuie seale , testifying that he is of full age , and hereupon he shall haue a priuie seale to the Chamberleine of the King to receiue his homage . And when he hath receiued his homage hee shall haue a writ from the Chamberleine to the Chancellor testifying that he hath receiued his homage , and therupon he shall haue a writ of liuery .

Statutes .

28. E. 3. cap 4. The rents giuen to them that sue liuerie when the rent day commeth , how soone soeuer it come after the liuerie .

32. H. 8. cap. 46. The Court of wards ●●cted to be a court of record , officers appointed : a Master of wards that shall keepe the Seale , an Atturny , a Receiuor , two Auditors , two Clarks , a messenger and an vsher .

All wards with their lands , &c. shall be in the ordring of the Court.

They may sell and grant the K. wards or ●heir lands during their minoritie , &c.

The same to passe by the Kings Bill as●gned , which shall be a sufficient warrant ●o the Lord Chancellor for the great seale .

They may ( without the Kings bill as●igned ) make good sales of vnderwoods , ●nd appoint timber for necessarie reparati●ns of the ward lands , and make leases du●ng their minoritie , &c.

Widowes and the fines for their marri●ge are in the suruey of this Court .

So are Ideots and their lands , and the Court may let and set their lands .

The grantee of the custodie of Wardship ●f any of the Kings wards shall sue foorth ●is patent within foure moneths next after ●e assignement of his bill , else the bill and ●ffect thereof to be void .

Processe shall be made out of this Court ●gainst wards intruding vpon their lands ●efore liuerie , or ouster lemaine vnder the ●reat seale .

With many other matters concerning ●he authoritie of this Court , and the offices ●hereof .

33. H 8. ca 22. The office of the M. of the ●uerie vnited to the Court of wards .

A suruey or of the liueries added and ap●ointed to be the second officer .

A Clarke of the liueries also added .

All liueries suing shall be in the ordring ●f this Court.

None that hath land ouer the clear year● value of v. l. ( otherwise it is where the land is vnder that value ) shall haue liuerie before inquisition or office , by the King● Writ or Commission , which shal not pa●● out of the Chancerie or other Court without a warrant directed to them out of the Court of Wards vnder their hand .

They shall set rates for liueries , and appoint dayes of payment , &c. and their Bil● for liuerie shall bee a sufficient warrant ●● the Lord Chancellor .

A generall liuerie may be sued where the yearly value of the land exceeds not 11. l● but such generall liuerie shall not be without warrant from this Court . The pa●●●● for liuerie may be sued foorth within thr●● moneths next after the assignement of th● Bill by the King or his Court.

Two being found heires by one and ●● 1 H. 7. 28. same title , whether twinlings that a● males , found heire by one selfe same office or diuerse men by seuerall offices found heires to the same auncestour , and by the same title ( for if one office find that the K● gaue land to A. and the heires of his bodie , and that B. is his Cosin and heire , and another office findeth that the gift was in generall taile , and that foure daughters are 〈…〉 heires . There must be a Trauerse and no enterpleading , for they claimed not by o●● ancestor and title ) the King shall not 〈…〉 liuerie till by enterpleder the truth ●ee ●●●cussed 5 E. 4 4. at his full age that was found 〈…〉 first : for if A. of v. yeares is found heire ●● the kings Tenant , and after by anoth●● office B. is found his heire , and of full age , B. hath no remedy till A. come of age , and ●hen they must enterplead . And in euery enterpleading , an office must bee found for both . And if one be found heire of full age , ●nd after another within age , the enterpleading shall not stay till the full age of the second , because the other was found heire first . Among coparceners the King vpon liuerie shall make partition . And that is for Stamf prer. 58. the Kings benefit , because vpon that partition euery one shall haue some part of the lands in chiefe . For if any should haue for their portion onely the lands holden of other men , then the King should lose his pre●ogatiue in those lands for euer , because ●hey that haue them when they shall dye ●old no lands of the King in Capite . And ●herefore in the writs of liuerie there is a ●rouiso , that euery one shall haue in her ●urpart , parcell of the lands holden in ●hiefe .

CHAP. 25.

Of Presentments , or enditements .

A Presentment is an enquirie finding some offence against the King , which is also called an Enditement . Therefore it is as it were the Kings ●ction , whereupon the partie shall bee ar●aigned , or put to answer by the King : and tried by another Iurie , which ( in case ●● felonie or treason ) we call the Iurie of ●● and death .

Euerie strong suspition of such ●●●●fence , though it be in case of felonie , 〈…〉 ring of record hath the force of an 〈…〉 ment : as in an action of trespasse of 〈…〉 carried away , if the defendant plead 〈…〉 31 E. 1 Endite . 31. guiltie , and bee found guiltie as a felon : in 9 E. 4. 10 : an appeale of murder , &c. if the Plaintife after declaration be non suit . But so is not 2 E. 3. 28. the Sherifes returne , as where he returneth vpon one an escape of felonie , &c.

Without which the King can haue ●● 7 E. 3. 324. suite vpon a wrong done , principally to ●nother : but done to himselfe he may .

For (a) (a) 12 H. 7. 18. Constables and Borsholders are Consernators of the peace at the Common law . preuenting of certaine of th●● offences , that is to say , trespasses to the ●●die and felonies , and committing them 〈◊〉 offend to prison till they may bee endited , and so duely punished , as (b) (b) 22 E. 4. 35. to arrest him that maketh an affray and send him to the next gaole , or vpon reasonable cause ( as if it be night time , or there be that would rescous him , &c. ) keeping him in the stockes till he can safely bring him to the gaole : o● to (c) (c) 9. E. 4 26. arrest him till he find suretie by obligation : euery hundred hath his Constable . And euery seuerall tithing within the h●●dred hath his Borsholder . The conse 〈…〉 of peace in an hundred is called a Constable , or high Constable : In a Tything , a pety Constable , Borsholder , Headborough , Thirdborough , Boroughhead , Tything ▪ man , or chiefe pledge .

Statutes .

1. E. 3. cap. 16. Stat. 1. For the better keeping and maintaining of the peace , the King will that in euery Countie good men lawfull , which be not maintainers of ill , or barrettors in the Countie , shall be assigned to keepe the peace .

18. E. 3. cap. 2. Stat. 2. Two or three of the best in reputation in the Counties shall bee assigned keepers of the peace by the Kings commission , and at what time need shall be , the same with other wise and learned in the Law shall bee assigned by the Kings commission , to heare and determine felonies and trespasses done in the same Counties .

34. E. 3. cap. 1. In euerie Countie of England shall be assigned for the safe keeping of the peace a Lord , and with him three or foure of the most worthy men in the countie , with some learned in the Law , and they shall haue power to distreine euill doers , riotors and barrettors , and to pursue , arrest , take , and chastice them according to their trespasse and offence , and to do them to bee imprisoned , and duely punished according to the Law and customes of the Realme , and according to that to them shall seeme best by their discretions and good aduisements , and also to enforme themselues , and to enquire of all those that haue beene pillers and robbers in the parties beyond sea , and be now come againe , and go wandring and will not labour as they were wont in times past . And to take and arrest all those that they may find by enditement , or by suspition , and to put them in prison , and to take of all them that bee not of good fame ( whersoeuer they shall be found ) sufficient suretie and mainprise for their good abearing towards the King , and towards his people , and to punish the other duely , to the intent that the people be not by such riotors troubled and endamaged , nor the peace blemished , nor Marchants nor other passing by the high wayes of the Realme , disturbed , nor put in feare by the perill which might happen to them by such euill doers . And also to heare and determine at the Kings suits all manner of felonies and trespasses done in the same Countie , according to the lawes and customes aforesaid .

13 Ric. 2. cap. 7. They must be sworne to keepe and put in execution all the Statutes and ordinances touching their offices .

2. H. 5. cap. 4. Stat. 1. The Iustices of peace must make their Sessions foure times by the yeare , that is to say , in the first weeke after the feast of Saint Michael , in the first weeke after the Epiphanie , In the first weeke after the clause of Easter , and in the first weeke after the translation of S. Thomas the Martyr , ( which is the 7. Iulij ) and more often if need be . And that the same Iustices hold their Sessiions throughout the whole Realme of England in the same weeks , euery yeare from hencefotth .

2. H. 8. ca. 5. Iustices of peace from hencefoorth to be made in the Counties of England , shall be made of the most sufficient persons dwelling in the same Counties , by the aduise of the Chancellor , and of the Kings Councell , without taking other persons dwelling in forreine Countries , to occupie such office , except the Lords and the Iustices now named , and to be named by the King and his Councell . And except also the Kings high Stewards of the lands and seigniories of the Duchie of Lancaster , in the North and South parts , for the time being .

18. H. 6. cap. 11 None shall bee assigned Iustice of peace if he haue not lands to the value of xx . l. by yeare . This extendeth not to Townes corporate , Boroughes , &c. nor to persons learned in the Law .

1. Mar. cap. 8. No Sherife shall exercise the office of a Iustice of peace by force of commission , or otherwise in the same county during the time onely that he exerciseth the office of the Sherifewicke .

Any (a) (a) 9. E. 4. 26. man suspecting another of a felonie committed or but (b) (b) 9. E. 4. ibid. intended , ●● where one lyeth in waite to rob the people that passe by , and draweth his sword vpon one willing him to deliuer his purse , &c. may arrest him (c) (c) 20 E. 4. 6. so as thereupon he commit him to the gaole , as (d) (d) 11 E. 44. common voice and fame that he did the fact , or being present where a murder was done , and found with a sword drawne in his hand : or when a robberie was done , and found with some part of the goods ; are iust causes of suspition . So if I would arrest one that hath robbed me , and I. S. say I shall not , this is good cause to suspect I. S. as accessarie : and what is sufficient cause of suspition , and what not shall be tried by the Iustices . But (a) (a) 9 E 4 ibid. neither can any man arrest one for a Trespasse , vnlesse it be the Constable , nor for a felonie , except (b) (b) 11 E. 4. ibid. himselfe suspect the partie ( though hee doth it by the commandement of one that doth suspect him ) and that the same felony bee indeed committed .

As if it bee for robberie , the selfe same thing must be stolne : for to say , that diuerse 27 H. 8. 3. beeues were stolne , and because he suspected I. S. to haue stolne sixe beeues , he did arrest him , is not good , without alledging expresly , that those six beeues were stolne .

With enditements of Trespasse , information vpon penall Statutes ( such as inflict a pecuniarie mulct or other penaltie vpon offendors ) haue a neare affinitie . Concerning which informations , these Statutes following were made .

Statutes .

4. H. 7. cap. 20. Where a penall Statute giueth whole or part to whosoeuer will sue a couenous release or recouerie ( except it be by action ) tryed vpon the point of the writ shall not preiudice him that will sue bona fide .

31. Eliz cap. 5. All informations and enditements where the forfeiture is limited to the Queene onely , must be brought within two yeares after the offence committed , when it is limited to the Queene , and any other that shall sue within one yeare , or ( in default thereof ) for the Queene within two yeares , except Statutes of Tillage . All brought after the time shall be void : where a shorter time is limited in any penall Statute the suit must be brought within that time .

27. Eliz. cap. 11. Information for the Queene vpon Statutes of Tillage , shall bee brought within v. yeares after the action accurred vnto her .

31. Eliz cap. 5. Euerie information except champerty buying of extortions and offences against

1. Eliz ▪ cap. 1. Against forrestallers , &c. must be brought into the county where the offence was indeed done But officers of record vsing to pursue informations by vertue of their office may do as before .

31. Eliz. cap. 5. All suits for vsing vnlawfull , or not vsing lawfull game , not hauing bowes or arrowes , vsing any art or mysterie wherein hee hath beene brought vp , shall be sued and prosecuted in the general quarter Sessions of peace , or Assises of the same Countie , or in the Leet within which the offence is committed , and not out of the same Countie .

29. Eliz. cap 5. The defendant in an information in the Kings Bench , Common place , or Exchequer , where he is baileable , or by leaue of the Court may appeare by Atturny , may the first day appeare by Atturny of that Court without putting in baile .

31. Eliz. cap. 10. This former Statute ( 29. Eliz cap. 5. ) shall extend onely to naturall subiects and free denizens .

18. Eliz cap. 5. made perpetuall .

27. Eliz. cap. 10. An Informer shall not compound or agree with the partie before his answer nor after his answer , but by the order and consent of the Court : if he delay his suit , or discontinue it , or be non suit , or if the matter passe against him by verdict or Iudgement , then he shall render to the partie his costs and damages to bee assessed by the Court.

In which act also many other disorders in common Informers are redressed .

Enditements of the death of a man are 35. H. 6. 27. to be taken before the Coroners . So is it not of any other felonie , for the Statute 4. E. 1. called officium Coronatoris setteth downe the office of a Coroner to be so by the common Law , and the whole order how he is to proceed in the inquirie .

Statutes .

Artic. super chart . cap. 3. The Coroner of the Shire shall ioyne with the Kings Coroner in inquiring of the death of a man with in the Kings house .

33. H. 8. cap. 12. The Coroner of the kings house shall enquire alone without the Coroner of the Shire , by a Iurie of the yeomen officers of the Kings officers .

CHAP. 26.

Of Originall Processe .

HItherto of the first matter of the suit , it followeth to speake of originall Processe .

Originall processe is that processe which is till the defendant do appeare .

Originall processe is single or 〈◊〉 Single , which is by the possessions 〈◊〉 , ( land or goods ) or onely by the person .

That by the land is of two sorts . First sommons and grand cape in a praecipe q●●d reddat .

The Sommons is a warning of the tenant in his land , but not by his goods , 〈◊〉 by a rent seruice , rent charge , rent seeke , or a Common which hee hath , for there the land is anothers by certaine sommoners , two at the least . The Sommons vpon ●● action brought against one as heire , 〈◊〉 13 ● . 2 Iudg. 170. be in land that did descend , otherwise it is in any land .

If it bee to recouer the freehold of 〈◊〉 ●7 H. 6. 26. it must be in the same land , else making default , hee may at the grand cape wage his law of non sommons . But if he appeare , it makes no matter in what land hee be sommoned . A grand cape is a pr 〈…〉 Old N. B. 177. 50 ● . 3. 16. to take the land into the Kings hands by the view of lawfull men , called thereupon Veyors , as the other are Parnors , with a sommons of the Tenant to answer (a) (a) 38 H. 6. 33. as well to his default , as to the demaundants action , and therefore it is called a grand Cape . Therefore here the Tenant is suffered Old N. B. ibid. to saue his default as to say , that he was not sommoned according to the Law of the land , and thereof is ready to do his law ; or that he was in prison , or disturbed by water , &c.

And the King shall haue the land to his S 〈…〉 . P●●r. 84. ●wne vse , the Sherife being accomptable of ●e issues therof from the default , til iudge●ent for the demandant .

Statutes .

31. Eliz. cap. 3. Vpon a Somon in a reall ●ction fourteene dayes before the returne , a ●roclamation of the Somons shall be on a ●onday immediatly after diuine seruice , at ●he doore of the Parish Church where the and lyeth , and returned with the names of ●he Sommoners . And till that done , no Grande cape shall goe out , but an alias & ●luries as the case requireth .

If the Tenant bee returned sommoned , 22 H 6. 41. where in deed hee was not , the writ shall abate .

Secondly , it is sommons & resommons , or another like sommons in a mortdauncestor , Iuris vtrum , and an assise of darrein presentment .

By the goods , as in assises of nouel disseisin and nusance , where the originall processe is a Pone per vadios & saluos plegios . A Pone per vadios & saluos plegios is a processe to attach the defendant by certaine of his (a) (a) 35 H. 6. Br. Attachment 20. proper goods not borrowed , or in pledge vnto him , beeing meere personall chattels , neither a (b) (b) 7 H. 6. 10. chattell reall , as a ward , &c. nor (c) (c) 27 H. 6 2. parcell of his freehold as a clod of earth , &c. which hee shall (d) (d) 9. H. 7. 9. forfeit if he appeare not . (e) (e) ibid. And the Sherife may take those goods with him , or leaue them with the partie at his pleasure . But whethersoeuer hee doe , the propertie is no● out of the partie till he make default .

The originall processe by the person is ● Capias ( which is processe to imprison him ) then an exigent or solemne (a) (a) Br. per Stamf. 15. demaund ●● fiue seuerall Countie Courts immed 〈…〉 following one another . Therefore (b) (b) 32 E. 3. Exigent 14. no Allocato comitatu lyeth if a Countie be holde● after an exigent returned , and for not app●●ring , iudgement , to be out of the protection of the King and his Lawes , which wee call outlawry . The ( c ) iudgement whereof is to bee giuen by the Coroner in the f 〈…〉 Countie . For (d) (d) 35. H. 6. 6. Br. Exigent 24. 11. H. 7. 26. at the Common Law there is no outlawrie , but where the writ is vi & armis , as in trespasse , conspiracie , felony , &c. And the reason why it lyeth there , is , because they are acts founded vpon the sole tort of the defendant . And this is in m 〈…〉 felonie and treason .

Statutes .

1. H. 5. cap. 5. In euery originall writ of actions personals , appeales , & enditements , in which the Exigent shall bee awarded : to the names of the defendants in such writs , originall appeales and enditements , additions shall be made of their estate and degree or mysterie , and the Townes , Hamlets and places , and the Counties wherof they were or be in which they were or be conuersant : Otherwise all outlawries thereupon pronounced shall bee none . And before these ●utlawries pronounced , the said Writs and ●nditements shall be abated by the excep●ion of the partie omitting the said addi●ions .

6. H. 6. c● . 1. All Exigends and outlawries ●pon enditements in the K. Bench of felony ●nd treason shall bee void , if before the ●xigend awarded , a Capias be not directed to ●he Sherife of the Countie , whereof they be ●amed in the enditement , hauing six weeks space ( or larger , by the discretion of the Iustices ) before the returne .

8. H. 6. cap. 10. In euery enditement or appeale of treason , felonie , or trespasse after the first Capias returned ; foorthwith ( before an Exigend ) another Capias shal be awarded to the Sherife of the Countie where the enditement is supposed to abide returnable , before the same Iustices , &c. conteining the space of three monethes ( where the Counties be holden from moneth to moneth ) of foure moneths : ( where they be holden from sixe weekes to sixe weekes ) by which Capias the sherife shall be commanded to take his bodie if it be found in his Bailiwick , if it be not found , then to make proclamation ( for his apparance ) in two Counties before the returne of the writ . Any exigend or outlawrie otherwise pronounced shall be holden for none .

10. H. 6. cap. 6. The like is to be obserued when any such enditement or appeal 〈…〉 ken before Iustices of peace , or other ●●uing power , shall bee remooued before t●● King in his Bench , or elsewhere by C 〈…〉 rari or otherwise .

6. H. 8 cap. 4. Vpon euery exigent a writ●● make three proclamations ( returnable 〈◊〉 of the returne of the exigent , and the p●●clamations to bee made , two in the full Countie Court , the third at the genera●● Sessions ) shall go out to the Sherife of euerie other Countie ( viz. than that where th● action is brought ) where the defendant is named to be , or late to haue beene ; if the Kings writ runne there : otherwise to the Countie next adioyning to that where he is so named . Being named late of London ●● Middlesex , the writ of proclamation shall go out to euerie other Countie where he is abiding , time of the exigent awarded . Euery outlawrie to the contrarie shall be auoided by plea.

27. E. 3. cap. 2. A writ of Idemtpitate 〈…〉 nis giuen to those whose lands , goods , or chattels be seised by any officer , surmising them to be outlawed ( where they be not ) because they beare such names as those that be outlawed , for default of good declaration of the surname .

9. H. 6. cap. 4. Such an Idemtpitate 〈◊〉 giuen to their Executors .

If the Exigent be returned not fully ser●ed without any folly in the Plaintife , as (a) (a) 22 E. 3. 11. where the defendant after demand at ●o Counties rendreth himselfe in Court , ●d vpon mainprise found hath a Superse●eas , and yet appeareth not at the day . But ●therwise it is vpon a (b) (b) 38 E. 3. 1. Supersedeas by a●other person bearing the same name , or in ●se where no (c) (c) 14 E. 3. E● . 17 more Counties but foure ●n be holden betweene the deliuerie of the ●rit to the Sherife and the returne , for it is ●e Plaintifes owne follie in the first case to ●ut no difference betweene their names , ●d in the second to take so short a time . ●hough it bee in the (d) (d) 17 E. 3. 43. hustings of Lon●on which are holden vncertainly : the ●laintife bringing a new exigent which we ●ll an Exigent de nouo (e) (e) 22 E. 3. 11. before any other Countie holden , but else not , shall haue the ●enefit of the former Counties . And there●ore it is called an exigent allocato Comitatu , ●r allocato hustingo , if it be in London , where ●heir hustings are as the Countie Courts .

Outlawry dishableth him from suing a●y Lit. 43. action .

Statutes .

5. E. 3. cap. 12. In case where the Plain●ife hath recouered damages , & he against whom the damages be recouered , is outlawed ●t the K. suit , no charter of pardon shall be granted , except the plaintife be satisfied for ●is damages . When one is outlawed by processe appearance no such charter shall 〈…〉ted , except he yeeld himselfe before 〈…〉 stices from whom the exigend issued ; ●● shall cause the partie to bee warned to ●●peare before them at a day . Where 〈…〉 the Plaintife appeare , they shall plead 〈…〉 the first originall , as if no outlawrie ●● beene . If the Plaintife appeare not ( and ●● warning be duely witnessed ) he that 〈…〉 lawed shall bee deliuered by vertue of ●● Charter .

31. Eliz. cap. 3. Vpon euery extent in a ●●sonall action a writ of proclamation 〈…〉 go out of the same Court to the S 〈…〉 the Countie , where the defendant at t●● time of the Exigent shall bee dwelli●● Whereupon three proclamations shall ●● made ; one in open Countie Court , anot●● at the quarter Sessions , the third one m 〈…〉 at the least before the Quint' exact at ●● doore of the Parish Church where the ●●fendant shall be dwelling at the time of t●● exigent , vpon a Sonday immediatly after ●●uine seruice . All outlawries otherwise sh●● be void .

But before reuersing of any such outlawrie in this respect , the defendant shall put in baile , not onely to answer the plaintife in ● new action , but to satisfie the condemnation , if the Plaintife begin his suite within two Termes .

Prerogatiue .

By outlawrie all his chattels , whether ●eall as a (a) (a) 9. H. 6. 20. terme for yeares ( and there●re there the King may seise the land it ●fe , and plow and sow , and occupie it as ●e term or might ) wardship , &c. or per●nal , as ones (c) (c) 30. H. 6. 20. goods ( the propertie wher● is presently in the king , and he may haue ● detinue against euery man that hath a ●ossession of them ) profits (d) (d) 9. H. 6. 20. of land , ●herein he hath a freehold or inheritance , ●iz . rents , corne , mannurance of his pasture ●et in this case he cannot , &c. seise the land ●selfe , nor occupie , plow , or sow it , or grant ● away . And if the party so outlawed make ● feoffement , this feoffement is good , and ●he King after that shall haue the profits ●o more . ) But not (a) (a) 20. H. 7. 13. a fornace table fixed ●pon the land with posts , boords , doores , windowes , and such like annexed to a free●old are forfeit to the King , not only those in possession , but euen such as hee hath a right vnto , as debts , ( viz (b) (b) 50. ass pl. 1. 19. H. 6. 47. due by specialty , but not (c) (c) 16. E. 4. 4. 50 ass pl. 1. 9. El. Dy. ●62 . 3. E. 3. Cor. 343. contr. Stāf. 188. b. by a simple contract , for the reason supra fol. ) matters in (d) (d) So ass. pl. 5. 28 E. 3. 92. account , (e) (e) Stamf. 188. b. goods taken away , &c. But not damages which he is to recouer , as by reason of (f) (f) 28. E. 3. 92. trespasse done to his land , (g) (g) Stamf. 188. b. batterie , false imprisonment , or such like .

In case of mayme there must bee three Capias , two in felonie , as stealth , robberie , and burglarie , one duely in the death of a man , bee it murder or manslaughter , and high Treason .

Statutes .

25. E. 3. cap 14. The second ▪ Capias i 〈…〉 of felonie must be returned three w 〈…〉ter . In case of Felonie and high 〈…〉 they that tarrie the Exigent , though t 〈…〉 22. ass. pl 81. they render themselues , forfeit th 〈…〉 tels .

Mixt , is that which is so by his 〈◊〉 as for want of goods hee may res 〈…〉 person . As first in all Praecipe quod f 〈…〉 , 22. H. 6. 38. 34. H. 6. 49. and other personall praecipes , and in per●●nall Sifecerit te securums , not being 〈◊〉 the peace , and likewise in all Insti 〈…〉 F. N. Br. 92. g. 2. H. 4. 25. vicontiell writs , the processe is a S●●mons by the defendants goods , an 〈…〉 ment or Pone per vadios and distresse 〈…〉 nite . Or if vpon the Sommons a Ni●il ●● returned , that is to say , that the partie 〈◊〉 21. H. 6. 56. nothing whereby to bee sommoned , th 〈…〉 continuall Capias .

Distresse infinite is a processe to 〈◊〉 him continually after , till he do appears ●● certaine of his goods , and profit of his lands , or as we vse to say , issues : which 〈◊〉 loseth if he appeare not .

Statutes .

Westm 2. cap. 37. No distresse shall bee but by Baylifes sworne and knowne .

Westm. 2. cap. 39. The plaintife may a●erre that the Sherife might haue returned greater issues , and thereupon shall haue a ●udiciall writ to the Iustice of assise to enquire of what & how great issues he might haue answered from the day of the purchase of the writ to the day of the returne , and the Sherife shall be charged of the surplusage not returned .

1. E. 3 cap. 5. The like auerment of two smal issues returned giuen against the bailifes of franchises as well as the Sherife .

Vpon this distresse must be returned in ●●●ues the value of all his lands from the Teste of the writ vntill the day of the returne . As if his land be worth xij . C. by the yeare , and a moneths space betweene the 24. El. Fairfaxes case in the Common place . Teste and the returne a C. l. issues must be returned vpon him .

And with these issues whether in this case or in any other case of a distresse infinite , as after a venire facias to returne Iurors , &c. the land is charge able into whose hand soeuer it come after . As if issues be returned D. Stud. per Br. issues 23. vpon Tenant in taile , tenant for life , or a man seised in the right of his wife , the land shall be charged after their death : or 22. H. 6. 4. if an Abbot lose his issues , and after bee translated and made a Bishop , the successor during his life shall bee charged . And in this respect because the land is charged , the beasts of any stranger comming vpon the same land may be distreined for the issues 5. H. 7. 1. Br. 〈◊〉 41. lost .

In such proces ●● these where 〈…〉 ment or distresse should go out , 〈…〉 dant be a 〈◊〉 clark he 〈…〉ned by his person , or 〈◊〉 if 〈…〉 lay see else . as if the Sherife re〈…〉 Cleric●● bene fieat●● non hab●●● 〈…〉 Processe shall goe out to the 〈…〉 make him appeare by the ●●●es of 〈…〉 nefice , which is called a ve●ire f 〈…〉 ricum .

A Capāas lyeth not here against 〈…〉 Br exigent . 72. It ●● error if he be outlawed . 26. H. 8. 7. of the Realme . But against a Knight 〈…〉eth , for a man may be a Knight 〈…〉 freehold : So cannot an 〈…〉 common e●endement . 〈◊〉 if 〈…〉 thing in the Countie where he is 〈…〉 partie shall haue an Elegit sure 〈…〉 such a Countie where he hath assets .

In a repleuin in the Countie 〈…〉 it by writ or plaint , if the go 〈…〉ed F. N. B. 73. & 74. away , so as at the Tenants 〈…〉 cannot be restored , As if he that 〈…〉 driue them to a Fortlet or Castle , or 〈…〉 the Countie , &c. whereby the Sheri 〈…〉 turne vpon the pluries that they are 〈…〉ned , processe of with e●●●am lyeth , 〈…〉 for the plaintife to haue of the others 〈…〉 till restitution of his owne .

Statutes .

Westm 1. cap. 17. The Sherife or Baylife may take the power of his Countie ●● Bailiwick , and beat downe a Castle or 〈◊〉 ●here such beasts are enclosed , if hee that ●oke them will not make deliuerance .

Secondly in Trespasses vpon the case ●gainst the peace , and in all other trespas●es , whether it be a writ of deceit or Tres●asse vi , or though it bee a Writ from the King himselfe vpon a contempt or breach ●f the peace , as refusing to come at the King , being sent vnto him with money to ●ide him in his warre , and spoiling and wa●ting mens lands , goods , and chattels , and other vnlawfull acts doing , and so euerie contempt it is attachment : And if a Capias ●n these cases go ou● first , and the partie be ●aken thereby , he shall be dismissed , because ●t should bee by pledges , distresse infinite , and vpon a Nihil returned , a Capias , as before .

Here for contempts a Capias lyeth against Piers of the Realme , as for rescousing of one arrested by the course of the Law , &c. And that is in respect of their disturbance of the Law .

In actions of trespasse with force , whether a common action or enditement of trespasse , appeale of batterie , or such like , after the attachment returned nihil , it is three Capias , viz. a capias alias and pluries , and then processe of outlarie .

Statutes .

Westm 2. cap. 11. Processe of outlawrie giuen in an action of accompt .

25. E. 3. cap. 17. Such processe shall ●● made in a writ of debt and detinue of c 〈…〉 tels , and taking of beasts by writ of 〈…〉 and by processe of Exigend by the S 〈…〉 as is now vsed in a writ of accompt .

7. H. 5. cap. 1. In writs to be purchased ●gainst those that forge or make 〈…〉 Charters or minuments , and them 〈…〉 claime or cause to be read , like processe s 〈…〉 be made by capias and exigend , as in w 〈…〉 of Trespasse .

19. H. 7. c● . 9. Like processe giuen in actions vpon the case sued in the Kings Bench , and Common place , as in actions of Trespasse and debt .

23. H. 8 cap. 14. Like processe giuen in euery writ of annitie as in an action of debt

CHAP. 27.

Of Counts .

THus farre of the beginning 〈…〉 suite : The proceeding hath 〈…〉 parts , Count and pleading ( which two are but one in pleading ) 〈…〉 ther meane acts .

A condition ( annexed to an 〈…〉 11. H. 7. 22. freehold ) cannot bee alledged in 〈…〉 or pleading vnlesse it be by deed : Bee it ●● ●ersonell or reall actions . But a condition ●nit to a lease for yeares , or grant of a ward●hip , 11. H. 7. ibid. Lit. 85. or other chattell Reall may . Yet the Iu●ie vpon the generall issue ( as ●ultor● nul ●isseisin in an assise ) may find it if they will . ●nd thereby the partie shall haue aduan●ge of it .

Count is a larger declaration for the ●me , place , quantitie of the land , and other ●ch things of the substance of the originall ●rit . And therefore in a formedon of foure ●cres and Count but of one , all the Writ 8 E. 4. ● . 45. E. 3. 25. ●hall abate , for it is not pursued . In an ap●eale of murder , he cannot declare that the ●efendant traiterously killed him as he was ●oing to succour the King , in his warres ●ith xx . men in his company , &c. for the ●rit supposeth no treason .

Statutes .

36. E. 3. cap. 15. Declarations shall bee ●ood enough if they haue matter of sub●tance , though the termes be not apt .

In reall actions which are in the right but not in meere possessorie ones ) the de●andant must alledge the taking of the ●rofits , we call it esplees , in the declaration . As in pleas of la●d , the taking of the profits ●f the land as errable , meadow , and ●asture , &c. if of a pond , then by taking the ●ish there , as Breames , &c. In a writ of right ●f auowson , the esplees shall be laid in his 8. E. 3. 381. 26. H. 8. 3. Clarks taking the great and small tythes . In an assise of an office as of a filizarie , &c. seisin shall bee alledged by the taking of ● . Mar. Dy. 114. 13. H. 8. 16. 19. H. 6 32. iiij . d. for making out a capias , or such like . In a quod permittat , by the taking of common by the mouth of his beasts . In a natiue habendo , esplees shall be alledged in the villeine , viz. in taxing him high and low at his pleasure , in making his profit of him ; to driue his cattell , to carrie away his doung , and to do all other kind of villeine seruice , Br. Esplees . 11. 21. H. 6. 22. &c. But in a writ of Eschete , in a writ of right sur disclaimer , and such like , which are founded vpon the seigniory , and not vpon any seisin of the land it selfe , no esplees shall be alledged . And these esplees where they are to be alledged , must be alledged in himselfe , if the action be brought of his owne seisin in his ancestor ; if it be brought of his ancestors seisin , where it cannot be brought but of the seisin of some other , there it must be alledged in those other . As in a formed on en descender the esplees shal 9. H. 6. 53. 50. E. 3. 1. be alledged onely in the donee . In a formedon en remainder for an estate taile , onely in the particular Tenant to proue the estate taile executed . In a formedon en reuerter , they must be alledged both in the donee and the donee , for there a fee simple is demanded . In a lease for life the remainder in taile , and the lessee for life , and he in the remainder in taile dye , the issue in taile shall haue a formedon en descender , and make no mention of the Tenant for life . And therefore the esplees shall be onely alledged in tenant in taile , otherwise it is in the like case of a reuersion in taile granted .

In stead of Count , a plaint shall bee made in assises of nouell disseisin , and in writs of dower a demand .

CHAP. 28.

Of pleading .

PLeading is the parties debating of the suite .

Euerie plea , as Barre , replication , reioynder , Surreioynder , &c. must be 7. El. Ploy. 343. assered to be proued true . By saying in the plea , Et hoc patro natus est verificare , which we call an auerment . But no auerment need to be in auowrie , for it is in liew of a Count and declaration . And the auowant is in a manner actor and plaintife , and to haue a returne ,

An aduantage of a matter which cannot be pleaded , shall be saued by protesting not acknowledging it to be true , although matter pleaded passe against him As if an infant bring an action of waste against his 48. E. 3. 10. gardein , and appeare by Atturny ( which none should do but one of full age ) if the gardein take his nonage by protestation because he cannot plead it , it shall saue him from all mischiefe . But in detinue brought by the Executor of A. the defendant cannot take by protestation , that A. made not the 4. El. Plo. 276. plaintife his executour , for that is the verie ground of the suit , and may be denied by answer , and issue ioyned vpon it . And a protestation is but a sauing to the partie that taketh it , from being concluded of some matter alledged against him , whereupon he cannot ioyne issue .

Pleas are either of the defendant when he is first brought in to answer , or the mutuall pleas of both . In a ioynt action against two or more : as in (a) (a) 48. E. 3. 1. an action of debt . But otherwise it is in a writ of (b) (b) 1. H. 7. 25. conspiracie against two , for they are seuerall wrongs , one of them appearing shal not answer . But must haue idem dies till the other come in to answer , or (c) (c) 41. E. 3. 3. the suit be finished against him . As by death or outlary in a personall action , debt , accompt , or such like .

An action by or against an Infant as heire , as (d) (d) 48. E. 3. 33. a formdon en descender brought by him , or a writ of (e) (e) 9 H 6. 46. error against him where his auncestor recouered ; but (f) (f) age 16. not where he commeth in of his owne wrong shall not proceed till his full age , vnlesse it be apparant that by proceeding hee cannot be preiudiced . As in (g) (g) 48. E. 3. 33. a formedon en descender by an Infant , if the tenaunt plead a warrantie with assets against him , the parroll shall demurre , for if he trauerse the assets hee should acknowledge the deed of warrantie . But (h) (h) 48. E. 3. ibid. if the tenant pleade a recouerie in auoidance of the estate taile , the parroll shall not demurre : for there the Court shall plead for him . But (i) (i) 12 : E. 4. 17. Age 18. it shall not demurre in a writ of entrie sur disseisin by an infant , though the tenaunt pleade a matter enfait , as a feoffement with warrantie by the ancestor of the infant , for there the infant claimeth of his owne possession . And if an infant and his ancestor be Iointenants 48. E. 3. 35. in fee , and the infant suruiueth : in a praecipe quod reddat against the infant hee shall not haue his age .

Statutes .

Westm 2. cap 40. The husbands heire called to warranty by the alience by a Cui in vita shall not haue his age .

Glocest . cap. 2. An infant holden out of his heritage after the death of his father , cosin , grandfather , great grandfather , in an action thereupon shall not haue his age .

Westm. 1. ca 46. In a writ of entrie by the heire of the disseisee the suit shall not stay for his nonage , no more shall it for the nonage of the heire of the disseisor , if the disseisee bring his assise , and before the assise passe the disseisor dye . The like incorporations where the lands go by succession . But in a writ of dower an infant heire shall not 39. H. 6. 39. haue his age , (a) (a) 44. E. 3. 4● . nor the heire of the vouchee , in a Quod ei deforceat vpon a recouerie in a writ of dower , for it is in the nature of the fitst writ .

CHAP. 29.

Of Pleas to the Iurisdiction and Person .

THe Defendants first pleas are dilatorie , or to the action .

Dilatorie , which are before 〈◊〉 plea in barre .

When an action is brought against many , they must ioyne in the plea ●● 12. H. 7. 3. they plead these dilatories , for in a praecipe quod reddat , one cannot demand the view , and the other pray in aide , nor one pray in aide of one man , and the other of another man .

Dilatorie pleas are exceptions , or forrein Aduantages .

Exceptions are such dilatories g 〈…〉 ded vpon the matter it selfe of the suit . And are in dishabilitie or abatement . Those in dishabilitie , are to the Iurisdiction or Person . Bracton . Both which must be before the count made .

To the Iurisdiction , when it is alledged that the Court ought not to hold plea of it .

To the Person , when it is alledged that the Plaintife ought not to be answered , as 3. H. 6. 40. Lit. 44. if he be outlawed , excommunicated , &c. In which latter case the suite shall bee put without day , onely till he be absolued .

CHAP. 30.

Of Pleas in Abatement .

THose in abatement are for any fault in the first matter of the suite , for which cause the defendant may haue oyer of any thing tendred by the plaintife , and not being parcell of the record , as of the writ , condition , &c.

Pleas in abatement are to the Count first , and then to ihe writ , for after pleading to the (a) (a) 30. E. 3. 20. Count or to the (b) (b) 4. E 3. 166. plaint in an assise , a man may pleade vnto the writ , but (c) (c) 4. E. 3. 134. 135. not to the Count after plea to the writ , but (d) (d) 24. E. 3. 47. 35. to the matter of the Count he may .

And among pleas to the writ , exceptions that arise vpon the view of the writ 3. E. 3. 70. are to be pleaded before those that are forreine , or dehors the writ as non tenure , seuerall tenancie , &c.

Pleas to the Count are for insufficiencie , variance from the writ , &c.

Pleas to the writ are for default of forme , false Latine , &c.

By waging of Law of non sommons in a praecipe quod reddat the writ shall abate . 22. H. 6. 41.

In assises of nouell disseism and nusance , in appeales of felonie and Iuris vtrum Stam. 82. ● of an assise . F. N. B. So k of a Iuris verum also . 1. E. 4. 4. the defendant may haue many pleas , two , three , or more in abatement . As that there is no such towne , Hamlet , or place knowne by the name , &c. and if that be not found , then that no Tenant of the freehold is named in the Writ , &c. So in an appeale of felonie , whether the same matters be of seuerall natures ( that is to say ) one triable by record , the other by the Countrey , as that the appeale was purchased hanging another , and also that there is no such Towne , nor Hamlet , nor place knowne out of the Towne and Hamlet as C. whence the defendant is supposed : or all of one nature triable by the Countrey , as that his name is William , where hee is named in the appeale Iohn , and also that there is no such Towne , &c. or that the partie whom he is supposed ●2 . E. 4 39. by the appeale to kill , was dead such a day , which was two yeares before the appeale commenced . Or that the Plaintife is a Bastard : or beeing a woman which bringeth an appeale of the death of her husband , that they were neuer accoupled in lawfull matrimonie .

The writ abating for some cause that cannot be imputed to the Plaintifes folly : as for (a) (a) 38. E. 3 ▪ per 46. E. 3. 14. false Latin , non (b) (b) 46. E. 3. 14. sommons of the Sherife , (c) (c) 32. H 6. 24. Ioyntenancie , and such like : but not for non (d) (d) 33. H. 6. 3. tenure , or (e) (e) 33. H. 6. ibid. naming one an Esquire when he is a Knight , himselfe bringing another with speed in the same Court against the same partie , we call it a writ purchased by Iourneys accompts , shall haue all aduantages of the former , for he shall recouer (f) (f) 9. E. 4. 5. costs for the first suit : the (g) (g) 2 H 4. 21. defendant being Executor shall be charged with the assets which hee had day of the first writ . (a) (a) 46. E. 3. 14. Being tenant day of the first writ , hee shall not pleade non tenure , beeing (b) (b) 41. E. 3. 4. sole tenaunt then he shall not pleade Ioyntenancie : being (c) (c) 43. E. 3. 16. Ioynttenaunt , th●n he shall not pleade seuerall tenancie . But no writ by Iourneys accompts lyeth by or against any other then the selfe same parties , and in the same Court that the former was : for (d) (d) 4. E. 6. Br. Iourneys accom. 23. if the Plaintife in a seuerall action dye , his executors cannot haue an action by Iourneys accompts . And (e) (e) 7. H. 6. 16. ●3 . if two coperceners bring a formedon , and one dyeth , the other as heire to her father may haue a Writ of all by Iourneyes accompts . But as heire to her sister of her part she cannot . So if (f) (f) 14. H. 4. p●● 7. H. 6. 34. the Tenant in the praecipe die vpon a writ of dower brought , or such like , no writ lieth by iourneys accompts . But (g) (g) 7. H. 6. 23. vpon the death of one of the Ioyntenants in a praecipe quod reddat , where the other hath all by suruiuour it doth : lastly , if an assise of fresh force be abated in the franchise , a new assise by Iourneys accompts cannot be in the Guild hall before the Iustices of assise .

CHAP. 31.

Of Oyer of the writ or bond , &c. view and prayer , voucher , garnishment , Enterpleader to the Writ and Sainctuarie .

FOrreine aduantages are delayes without exception to any thing . ●● in all actions , oyer of the writ , &c. In reall actions , view , aide , prayer , and voucher .

View is in reall actions of the thing demanded , or of the land whence it commeth , Stat. West. 2. c. 48. from henceforth view shall no● be granted , but where it ●● necessarie , &c. sheweth that it did lye in those cases at the common Law . And this view must be demanded before any plea in bar , & . may be after pleadieg to the writ : for though one plead a plea that goeth to the action ( as that the plaintife in a writ of dower is an alien ) yet if he conclude to the writ , he may haue view after 3. H. 6. 55. when it is so necessarie as without view the defendant cannot well answer .

Statutes .

Westm. 2. cap. 48. From henceforth view shall not be granted but in case where the view is necessarie , as if one lose land by default , and he that loseth , moueth a writ to demand the same land . And in case where one by an exception dilatorie , abateth a writ after the view , as by non tenure or misnaming of the Towne , or such like , if hee purchase another writ in this case , and i● the case before mentioned , from henceforth the view shal not be granted if he had view in the first writs . In a writ of dower where the demand is of the land that the husband alienated to the tenant or his Auncestours where the tenant ought not to be ignorant what land the husband did alien vnto him , or his ancestours ; though the husband died not seised , yet from henceforth view shall not be granted . In a Writ of Entrie also that is abated , because the demandant misnamed the Entrie ; if he purchase another Writ of Entrie , if the tenant had view in the first writ , he shall not haue it in the second . In all writs also where lands be demanded by reason of a Lease made by the demandant or his ancestor , as that which he leased to him beeing within age , not whole of mind , being in prison , and such like , view shall not bee granted hereafter : but if the demise was made to his ancestor , the view shal not lie as it hath don before .

Stat. De visu terre & essoyne de seruiti● Domini Regis : View shall not be granted in a Writ of Ward , in a Writ of Customs & Seruices , in a Writ of Aduowson of a Church ( but no● in case where there be no more Churches than one in a towne , and all of one Saint ) in a Writ of Dower , and in a Writ of Nuper obijt .

Ayd Prayer is for Tenant for life , to 31 E. 3. Ioind in aid 10. 33 H. 6. 29. request him that hath the Inheritance , to helpe him plead . And therefore here the tenant himselfe remaineth alwaies party , & is neuer out of Court : and this Aid Prayer is for the feeblenesse of his estate .

So must an Incumbent , the Patr 〈…〉 Ordinarie . Else no recouerie against h●● bindeth the successor or them . And th●● is in respect of their interest to the Church ; the Patron to present , and to haue an I 〈…〉 cauit of the tythes : the Ordinarie to adm●● & to present by Laps . But vpon Aid prayer it doth , though they make default , & confesse the Action .

Statutes .

Westm. 2. Cap. 3. He that is in the ●●uersion shall be receiued in default of the Tenant for life . If iudgement be giuen by reddition , or default , hee in the reuersion shall haue a Writ of Entrie after the death of the Termor : so shall the heire where the Tenant was Tenant in Taile .

20. E. 1. De Defensionis Iuris : he in the reuersion desiring to be receiued before iudgment , shall finde suretie ( as the Court shal allow ) to answer the value of the issues of the Tenants from the day of the receit , till iudgement , if it passe for the demandant .

13. R. 2. Cap. 17. The like receit shal be for him in the reuersion vpon the faint pleading of such a Tenant , and hee shall plead in chiefe without delay . And the Iudges by discretion shall giue dayes of grace betweene the demandant and him that is receiued ; without giuing the common day in plea of land , vnlesse it be by the demandants assent . Suretie of the issue shal be found ( as before 20. E. 1. ) as wel where the receit is counterpleaded as where it is granted .

Glocest . cap. 11. Tenant for yeares shall be receiued before Iudgement rendred , to say that the action was by couin .

Westm. 2. cap. 3. Receit is giuen to the wife in her husband , if he lose her land by default , and the tenaunt that recouered against her husband must maintaine his owne right .

Voucher is the calling of one that should warrant in to answer the action . Therefore 31. E. 3. Ioynd . ●● ayd . 10. F. N. B. 1●4 . ● ▪ vpon the vouchees entring into warrantie the tenant is out of Court. And notwithstanding a recouerie in a Warrantia chartae , yet if he bee afterwards impleaded in an action where voucher lyeth , he must vouch him against whom the recouerie was : else he shall haue no benefit of that recouerie .

Statutes .

Westm. 1. cap. 39. In mortdauncestor nuper obijt , intrusion , or other such like writs in which land is demanded which should defend , couert , remaine , or eschete , after the death of any ancestor or otherwise , if the tenant vouch , it is a good counterplea to say that the tenant or his ancestor was the first that entred after the death of him of whose seisin he demands , vnlesse the vouchee bee readie , who if he vouch ouer , the demaundant shall haue his counterplea .

Also in a writ of Entrie in the degrees none shall vouch out of the line . Also in writs of right or of possession ( as before ) that is a good counterplea , that the vouchee nor his ancestor had neuer seisin of the land or any thing in the seruices by the hand of the Tenant , or his ancestors from the time of the seisin whereof the defendant declares till the writ purchased , so that hee might a feoffement make vnlesse the vouchee be present , who if he vouch ouer , the demaundant shall haue his Counterplea . But warrantie of charters lyes in these cases .

20. E. 1. Stat. de vocat' . ad warrant' . This Counterplea of voucher that the vouchee nor his ancestors had neuet any thing , so as he could a feoffement make with warranty shall be receiued , although the vouchee be readie to enter into warrantie .

14 E. 3. cap. 18. If the tenaunt voucha dead man , the demandant may auerre he is dead , or there is none such .

Westm. 2 cap. 6. If the vouchee counterplead the warrantie , and it be found against him , he shall lose the land . Where the vouchee F. N. B. 134. k. 22. H. 6. 22. losing the Tenant shall recouer in value against him any hereditaments that he had at the time of the voucher . And therefore a voucher is in liew of an action where the originall processe is Somons ad warrantizandum ( or (a) (a) 45. E. 3. 23. 14. H. 6. 2. Br. Seq sub , &c. 3. if one bee vouched within age a Somons ad habendum visum first , and being awarded of full age , then a Somons ad warrantizandum , if he be awarded within ( b ) Old N. B. 1● Old N. B. ibid. age the parroll shall demurre ) and a Grande Cape ad valentiam . If the sommons ad warrantizandum or habendum visum , alias , and pluries , be not serued , then a sequatur sub suo periculo is to goe forth . And if the tenant cannot get that serued , he loseth his warrantie . Therefore it is sub periculo of the tenant . And if vpon vouching of an heire the 13. E. 3. Iudgement 117 Sequatur sub suo periculo be returned nihil in the land by descent , but that he was sommoned in land that he had purchased , the tenant loseth his warrantie , for the sommons must be in lands descended . But if the Sequatur sub suo periculo , or the Cape ad valentiam 3. H. 7. 13. Br. rec●● . en value 40. bee returned serued , there the Tenant shall recouer in value .

But in exchanges the hereditaments are lyable from the verie time of the Exchange .

In partition among coperceners , from the death of their ancestor . So as the wiues dower whom he taketh before any voucher by reason of such an (a) (a) Park . 61. ● . exchange , or whom a (b) (b) Park . ibid. coparcener in gauell kind marrieth at any time , shall be defeated vpon a recouerie in value or pro rata , for so is the recouerie in value called in the case of coparceners .

Prerogatiue .

The King shall not bee vouched , but prayed in aide of which in that case hath the force of a voucher . As if the King by 15. H. 7. 10. his letters pattents giue lands to one by this word ( Dedi ) the patentee shall haue aide of him , because by the same word he might 9 H. 6. 4. vouch a common person . And when one prayeth in aide of the King in liew of a voucher , the speciall cause must be entred , else hee shall neuer haue in value by petition .

So of Coperceners .

And if two parceners make partition , one alienateth part of her purpartie , the other is 1. E. 3 4. impleaded and prayeth in aide of her coparcener , and they lose . In this case she shal recouer according to the rate of the moitie which she lost , whether the other alienated before aid prayer , or after .

In an assise of nouell disseisin and nusance , voucher lyeth not , vnlesse the vouchee F. N. B. 178. c. be present in Court , and will by and by enter into warrantie .

He that is impleaded in any action wherin he may vouch and doth not , shall neuer haue the benefit of a Warrantia chartae .

Aduantages in certaine personell actions are Garnishment and Enterpleader . Garnishment is vpon a writ of detinue , when beeing alledged by the defendant to haue beene vpon a bailement by the plaintife , and another or for another vpon condition . 14 E. 4. 2. As that if I. S. doe such a thing the goods shall be deliuered to him ( for though the plaintife sole deliuered the goods , and I. S. were a stranger , yet I. S. is to haue aduantage of the condition , and may haue a writ of detinue ) if not , then redeliuered to the plaintife , that other shall be brought in to shew whether by reason of that bailement which the defendant so alledgeth both for the (a) (a) 21. H. 6 35. place , (b) (b) 40. E. 3. 11. condition , (c) (c) 20. E. 4. 13. and matter of the bailement , viz. who bailed it , &c. from which the Garnishee cannot varie ( d ) 40. E. 3. 11. howsoeuer it agree or disagree with the ( e ) 4. E. 3. ibid. plaintifes declaration , himselfe or the plaintife ought to haue them , for garnishment is but to know whether the condition , &c. alledged by the defendant were performed or not . And if they were deliuered vpon other condition then the defendant alledgeth , the garnishee is at no mischiefe but the defendant : for the garnishee may recouer them by a writ of detinue , and the defendant by his false plea maketh himselfe chargeable both to the plaintife and to the garnishee . But if the defendant affirme not any certaine bailement for place , condition , 21. H. 6. 35. matter , &c. as if the plaintife declare of a bailement vpon certaine conditions , &c. and shew which , and that he hath performed them , and the defendant pray garnishment generally : there the garnishee may varie from the bailement alledged by the Plaintife , for the defendant hath not affirmed the same .

Enterpleder is when diuers bringing seuerall writs of (a) (a) 33. H. 6. 25. 8. H. 6. 30. detinue , ward (b) (b) 3. H. 6. 44. or Quare (c) (c) 19. H. 6. 68. impedit against the same person in the same County , and for the same thing , though (d) (d) 8. H. 6. 30. they varie in time and place of deliuerie ( for the place is not materiall being all in one Countie ) so as they varie not ( e ) 33. H. 6. 25. in the substance of their declaration , as for to declare of a chest sealed , without alledging any deed in certaine : and the others to alledge a deed in certaine . They (f) (f) 8. H. 6. ibid. all shall enterplead together , as much to say , the rest shall answer him that brought the first writ , and therefore shall haue the same 33. H. 6. ibid. 8. H. 6. ibid. day giuen them , if the writs be returnable at seuerall dayes . And the reason of enterpleding in detinue is , because otherwise if one recouer against the defendant , yet the others action is not abated , but continueth still . Otherwise it is in a reall action as in a formedon praecipe quod reddat .

Prerogatiue .

The King may appoint any place hee thinketh good to be a safegard for all offendors flying thither , that they shall not bee molested or compelled to answer , whether one flie thither for (a) (a) 1. H. 7. 25. treason , (f) (f) Stamf. 111. The Abbot of battaile had so . murther , theft , or other crime , for which he should lose life or member . And therefore this taking effect by the Kings grant onely ( for touching the Kings prerogatiue so nigh it cannot (d) (d) 1. H. 7. 26. be by prescription ) and being an immunitie to one that offendeth the King and his Crowne , is a (e) (e) 1. H. 7. 25. temporall matter pertaining to the temporall coertion & Iurisdiction , and need no consecration . But yet when it is consecrate by the Popes vnholy Ceremonies , it obteineth the name of Sancturary .

Statutes . Taking of sanctuary away .

26. H 8. cap. 17. In high Treason .

2● . H. 8. cap. 7. In Petie Treason .

27. H. 8. cap. 4. and 28. H. 8. cap. 15. In treasons , felonies , robberies , and confederaces , in or vpon the Sea , or other hauen , riuer , creeke , or place where the Admirall hath or pretendeth iurisdiction .

32. H. 8. cap. 4. In wilfull murder , rape , robberie , in or neere the high way , or in any house , putting any person within in feare of his life , felonies , burning of houses or barnes with corne , robberies of Churches , Chappels , or hallowed places , and all procurors , and abbettors , and all offences where sanctuarie lyeth not by the Law , or is taken away by any former Statute .

32. H. 8. cap. 12. In Treason , Misprision of treason , Manslaughter within any of the places or houses of the King , or his heires , or where the King in person is abiding . So in stealing or in feloniously carrying away any plate , iewell or other goods of the king or his successors , aboue xij . d. value .

32. H. 8 cap. 1. made perpetuall . 32. H. 8. cap. 3. 1. E. 6. cap. 12. In murder or poysoning of malice prepenced , breaking of any house by day or night , any person being in it and put in feare thereby , robbing in or nigh the high way , felonious stealing of horses , geldings or Mares , or stealing goods out of any Church or Chappell . But in all other cases of felonie it shall be granted .

2. E. 6. cap. 33. In felonious stealing of ones Horse , Gelding , or Mare .

1. Mar. cap. 6. In counterfeiting coyne that is not the coyne of the Realme , or currant in the Realme , the Queenes signe , manuell priuie signet , or priuie seale : and all procuring and abetting .

1. and 2. Ph. and Mar. cap. 4. From these that call themselues Aegyptians .

27. H 8. cap. 19. All in sanctuarie for murder or felonie out of the house , weare a badge in length and breadth ten inches : they shall weare no weapon but their meate kniues , and that at meale onely . Both these vpon paine of losse of the priuiledge .

They shall not be out of their lodging before Sunne rising , nor after Sunne set vpon paine of imprisonment two dayes in that sanctuarie for the first time he is so taken , the second time sixe dayes imprisonment , the third time losse of his priuiledge , vpon substantiall and indifferent proofes before the Lord Chancellor . And it is felonie for any sanctuarie person that shall of prepenced malice make rescues , or resist any officer in imprisoning the priuiledged persons as before . Contracts vnder xl . s. trespasse and couenant betweene the priuiledged persons , and other inhabitants in the sanctuarie , shall be determined before the Gouernour .

32. H. 8. cap. 12. All sanctuaries adnulled other then Churches and Churchyards , and certaine places named in that Act , and in 33. H. 8. cap. 15. which are appointed places of Tuition , for terme of life to the offendors in capitall offences . The priuiledged persons shall euerie day bee called by name , and making default three seuerall dayes with lawfull cause , forfeit the priuiledge : committing any offence punishable by death is forfeiture also .

CHAP. 32.

Of Pleas in Barre .

THus farre of Dilatorie pleas .

Pleas to the action are those that go to the bodie of the matter .

And are pleas in barre or c 〈…〉 ssions . Pleas in barre are th●se which are to barre the plaintife of his ●●●ion , where the Defendant must make defence , as to say , Defendit vim & ini●ri●● quando . But this defence shall not bee in 34. H. 6. 33. dower assise of nouell disseisin , Per quae seruicia , and attaint .

The Tanant may plead a warrantis in Litl . 150. bar of him that should warrant if he bring the action . As if there bee grandfather , father and sonne , the grandfather is disseised , the father releaseth to the disseisor with warrantie , and dyeth after the grandfather dyeth . Now if the sonne bring an action to recouer the land , he shall be barred by the warrantie made by his father , and this is called a Rebutter .

Statutes .

Glocest . cap. 3. The heire shall not bee barred of his mothers inheritance by the warrantie of the father , being Tenaunt by curtesie , or alienating without fine in the mothers life time except he leaue assets .

And though the Tenant of the land bee a stranger to the warrantie , as a disseisor or one that commeth in by a recouerie , may plead that hee hath a third persons estate and (a) (a) 42. E. 19. rebut , but not vouch by a warrantie made vnto the person . But in (b) (b) 21. E. 4. 82. writs of dower the ancestors warrantie is no barre . ( c ) Lit. Chap. of G●●ranty .

A warrantie made by the disseisor at the time of the disseisin : we call it a warrantie commencing by disseisin . As the feoffement with warranty of a father , or other ancestor , lessee for yeares or at will , of the demise of his sonne , or of gardein in Knight seruice or soccage , or where one which hath not right entreth into the land , and presently maketh a feoffement with warrantie , barreth not his heire , (d) (d) 50. E. 3. 12. for then his action and right should be lost for euer . But by such a warrantie the heire may be vouched , for that is in the nature of a couenant against him as heire to his ancestor . So that if hee haue other land descended to him from the same ancestor , it is reason that he warrant that which he may do , sauing to him his action that he may haue by reason of the disseisin .

In an assise of nouell disseisin and trespasse the defendant pleading a title in barre must giue colour of title to the Plaintife , for if either it bee no title , as either in trespasse to plead (a) (a) 22. H. 6 50. it is his freehold , or (b) (b) 2. E. 48. the freehold of I. S. and that he entred by his commandement , or (c) (c) 15. H. 7. 10. when one prayeth in aide of I. S. or of the King , or Rege in c●●suleo , though he entitle himselfe by a lease at will , &c. colour needs not . Otherwise it is (d) (d) 21. E. 4. ibid. if hee entitle another to a lease for yeares , and iustifie by his commandement . So (e) (e) 32. H. 6. 1. if a matter that destroyeth the plaintifes title , as a release in an assise , in a Trespasse of goods a sale by a stranger in ( f ) 21. E. 4. & 5. market ouert , and that the plaintife tooke them out of his possession , and he retooke them , there colour needs not .

No more it doth where he pleadeth to the writ and not in bar , though the plea indeed go in bar . As in trespasse of goods , that I. S. was possessed and made Alice S. and I. D. his executors and died . Alice S. tooke the Plaintife to husband and was couert day of the trespasse and after died . So should the writ be brought by I. D. who is yet in full life , not named in the writ , Iudgement of the writ , &c.

And in giuing colour these things must be obserued .

1. It must bee to the plaintife , not to a 38. H. 6. 7. stranger , nor to the defendant .

Not to a stranger , as in trespasse that A. was seised and him enfeoffed , and I. S. claiming by colour of a deed of feoffement from A. where nothing in truth passed , &c. entred and enfeoffed the plaintife . This is no good colour , for in a stranger matters en fait must alwaies be alledged , as to say , that I. S. enfeoffed A. who enfeoffed the Plaintife : or that A entred and disseised I. S. and enfeoffed the plaintife , &c.

Neither must the plaintife giue colour to the defendant , as where the defendant pleadeth 19. H. 6. 31. his freehold , now if the plaintife say that before the defendant any thing had , A. was seised and enfeoffed the plaintife , & the D. claiming by color of a deed of feoffement from A. where nothing passed , &c. entred , vpon whom the reentred is not good .

2. It must be of such a possession wherby he may maintaine his action . 32. H. 6. 6.

As in an assise the defendant must giue the Pl. a colour of the Pl. owne possession , and not of the possession of his ancestor , as to say that the plaintife claiming by colour of a deed of feoffement made vnto himselfe where nothing passed , &c. is good . But not to say that the plaintife claiming by colour of a deed of feoffement made to his ancestor where nothing passed , &c. for of such a possession in his ancestor he cannot haue an assise .

3. The colour must bee a matter doubtfull in Law , or otherwise difficult to the 19. H. 6. 21. lay people , else it is not sufferable , but he shall be forced to take the generall issue , as in an assise to say , Nul tort , &c. or in an action of Trespasse , not guiltie . As if I bring an assise against you , and you say that you let the same land to one for terme of life , and after granted the reuersion to me , and the Tenant for terme of life dyed , and that I claiming the reuersion by force of the said grant , where the Tenant did neuer att 〈…〉 entred , &c. This especiall matter is suff● 〈…〉ble , because that is dangerous to plead 〈…〉 tort , &c. For the lay people will thinke th●● the reuersion passeth by force of the g 〈…〉 without atturnment . The same Law it i● where the Tenant saith , that he himsel●● let the land to the Plaintife , for terme of h●● life , and then the Plaintife did surrend●● ▪ For the lay people know not that a surrender may passe by word . The same Law it i● where the Tenant saith , that the father ●● the Plaintife let vnto him for terme of another mans life , and after released vnto hi● ▪ And the Plaintife supposing that his father died seised of the reuersion ousted him after the death of him , for whose life , &c. because the lay people vnderstand not 〈◊〉 this release doth inure , whether by way of enlargement , feoffement , confirmation , ●● extinguishment . The same Law it is if the Tenant say that the father of the Plaintife enfeoffed him , and afterwards suffered him to occupie at will , and hee supposing , &c The same Law it is to say , that the plaintife claiming as bastard and eldest sonne entred , because the lay people thinke th●● the eldest sonne , though he bee a bas●●rd , may inherit . The same Law it is to say th●● such a one was seised and infeoffed , the ●●nant and the plaintife claiming by a deed of feoffement made before where nothing passed , &c. because the lay people thinke it a good feoffement , though it bee made without liuerie . But where the speciall matter is not a matter in Law , or difficult , there the Tenant or defendant must take the generall issue , as if the Tenant say , that hee was seised vntill he was by the pl. disseised , whereupon he re-entred , this plea is not sufferable , because all men know that the Tenant in this case is no disseisor : or otherwise if he say , that the plaintife claimes as younger sonne , because that euerie man knoweth , that the younger sonne cannot inherit before the elder . The same law it is if he say , that he leased to the father of the plaintife for terme of life or yeares , or for terme of another mans life , and the plaintife supposing that he had died seised of an estate in fee simple , entred , &c. because in these cases the Lay people doe wel vnderstand that he is no disseisor : & therefore in these and in al other like , the tenant shall take the generall issue .

In reall Actions for the méere right when it is in respect of a disseisin done to him or his ancestors , and not founded vpon a seigniorie , as a Writ of Eschete , a writ of right sur disclaimer , &c. the Tenaunt 16. E. 4. 9. 3. E. 3. Dr. 26. cannot trauerse the seisin , but may tender halfe a Marke to the King to haue it inquired by the Iurie : and being found that the demandant was not seised in the time whereof he counteth , that shall barre him for euer .

Prerogatiue .

The tenant cannot tender halfe 〈…〉 against the King .

The heire or Executours in an Act 〈…〉 brought against them , where they are c 〈…〉 geable pleading a matter in their 〈…〉 knowledge (a) (a) 3 & 4. P. & M. Dy. 149. 21. E. 3. 9. 6 & 7. E. 6 Dy. 81 34. H. 6. 22. Br. Exec. 22. which goeth in perp 〈…〉 bar , As for the heire to plead that nothing discended to him from the same Ancester ▪ the Executour to plead a release or acqui●tance made vnto himselfe , or that hee was neuer Executor , nor neuer administred ●● Executor shall be charged as in their 〈…〉 perdutie , if it passe against them . Otherwise it is if the Executor pltad Mis 〈…〉 , or another Executour aliue not named i● the Writ , ( for that is no barre but onely ●● the Writ ) or Oriens inter mains ( for that is no perpetuall bar , for a Scire facias lyeth if they come to haue lands after ) or a release , or acquittance to their Testator : or Nie●● le fait of their testator , for they cannot haue knowledge of it . Otherwise it is also if ●●ther 6 & 7. E. 6. Dy. 81. Where the heire is condemned by a Nihil dicit , execution shall be of lands descended by a speciall Elegit not of his goods , &c. nor no Cap. ad satisf . lyeth against him . 21 E. 3 ibid. the heireor Executor bee condemned by a Nihil dicit , or confesse the certaintie of the assets . And in the first case , as whe●● the heire pleadeth nothing by discent , 〈…〉 which is found against him , the plainti 〈…〉 shall haue an Elegit of the moitie of all 〈◊〉 lands as well purchased , ar by discent : 〈◊〉 in a Formedon en Descender , if the Ten 〈…〉 plead in barre a warrantie with assets , and the demaundant said Rien per descent , and it is found that he hath by discent , he shall be barred of all that hee demandeth by his Writ ( of how small value that bee which descendeth ) because the issue that he tendered is false .

In Assises of Nouel Disseisin , Nusance , Mortdancester , Iuris vtrum , & in Enditements and Appeales of Felony , the defendant may plead in abatement , & ouer in barre , or take the generall Issue also . As in a Mortdancester , (a) (a) 40 E. 3. 29. that he hath nothing but in right of his wife ; or (b) (b) 2 E. 3. 62. 22 E. 4. 3● . I. S. holdeth parcell of the land in demaund , not named in the Writ : and if that bee found against him , then that he hath abated . In an assise of Iointenancie , or Misnomer , which are in Abatement , or any matter in barre : ( vnlesse he confesse a putting out of the Tenant , or that which amounts to as much , as by pleading a release , or such like ) and if that bee not found , then he hath done no wrong . In a Iuris Vtrum the Tenaunt may plead 12 E. 2. Iur. v●r . 12 Misnosmer of the Demaundant , or that a stranger holdeth parcell not named . And if it be found , &c. that the demandant hath receiued his fealtie , &c. And if it be found , &c. then that it is his Lay fee , and not Franke Almoigne , &c. In an Enditement , or Appeale of death , misnomer of himself , or no such towne ; and to the felonie not guiltie . But he cannot plead a Release , and to the felonie not guiltie : for by the Release he hath in a maner confest the felony : 4. H. 6. 15. 22 E. 4. 39. Ibid. also he may plead a matter in bar , & vpon that found against him , then plead not guiltie , though he pleaded it not before .

In Assises of Nouel Disseisin , and Nusanc , 1. E. 5. 5. he may plead a speciall matter that amounteth but to the generall Issue . As in an Assise of Rent by Deane and Chapter , to say that Rescous was made to the predecessor , and no seisin in him , or in any Successor since that time . Though in the pretence of him that pleadeth it , it amount to no more , but that the plaintife was neuer seised , so as he could not be disseised .

Vpon (a) (a) 9. E. 4. 2. Enditements of Felonie 〈◊〉 Treason , otherwise it is in Appeales , the defendant being put to answere , which is called an Arraignement , is not allowed councell , if he denie (b) (b) Stamf. 151. b. the fact . For either his conscience perhaps wil sting him to vtter the truth , or otherwise by his gesture , countenance , or simplicity of speech , it may be discouered ; which the artificiall speech of his Councell learned , would hide and colour . Also himselfe can best answere to the fact . But if he plead Sanctuarie , or any other matter in Law , then he shall haue ● H. 7. 23. 32. H. 8. Dy. 13. 41. E. 3. 27. councel . A presentment in the left or sherifs turne , after the day of the presentment bindeth the partie for euer , and is not trauersible but in cases that touch ones Freehold : as that one ought to clense the High-way 5. H. 7. 3. or such like rationae tenure suae : therfore the course is to remoue such presentments into the kings Bench by a Certiorari , where he may trauerse them .

CHAP. 33.

Of Confessions .

COnfession is when the Defendant confesseth the plaintifes action to be good . The Defendant confessing an enditement of felonie may accuse others , in which case wee call him an Approuer . And one cannot (a) (a) 9. H. 6. Co●● ● be an Approuer but in felonie or Treason . And that vpon an (b) (b) 1. H. 7. 5. enditement onely , and though it be (c) (c) 1. H. 7. ibid. after not guiltie pleaded , yet before verdict hee may become an approuer . But vpon an appeale one cannot bee an approuer . Nor without (d) (d) 1. H. 5. Co. 441 confession of felonie before the Iudges , which confession must be (e) (e) Stam. 143. ● . vpon an enditement precedent ( that the Iudge may at any time giue iudgement to attaint him ) not vpon an arrest for felonie of the same offence . But he cannot approue one that (f) (f) Stamf. 143. ● . receiued him , for it must be of such an offence as he himselfe did together with the other : nor one that (g) (g) 10. E. 4. 14. abetted and procured him to commit the felonie , for he confesseth not himselfe guiltie of the same offence , in as much as he cannot abet himselfe .

Statutes .

Westm. 1. ca. 12. Notorious felons which will not put themselues vpon an enquest at the Kings suit against them , shall be put to a paine sort & dure , as those which refuse to be tried by the Law of the land .

One that flyeth to a church (a) (a) The Stat. 32. H. 8 cap. 21. so reciteth it . or churchyard , & confesseth before the Coroner when he cometh , the certaintie of any barre , felonie , where life or member is to be lost before he be thereof attainted , whether vpon an enditement or appeale , as that he hath Stam. 119. b. stolne such or such a thing , killed such or such a man . But at the first taking of the Stam. 116. Church , it is enough to say he taketh it for a felonie , which hee hath committed generally may abiure , and so saue himselfe But not in case of high Treason , or petie treason , for the Coroner cannot attaint him vpon his confession thereof , because he is not his Iudge of such a crime : neither can be his Iudge as he is Coroner , although he haue a Commission from the King to do it . And if the offendor , being in the Church , will of purpose confesse a felony , to the entent to escape of treason , yet if the Coroner haue information that he is charged with a treason , he may not suffer him to abiure . And that for the Kings aduantage , who is to take more benefit if he be attainted of treason then of felonie , because of the eschete . The same law it is of petie treason , for the Coroner can no more record his confession of that then of high Treason : neither may the Coroner if he be enformed that he haue committed petie Treason , suffer him to abiure of felony , and that in respect of the heinousnesse of the offence , notwithstanding Br. Coro . 182. the King be to haue no more aduantage in petie treason then in felonie . Neither can a man abiure for petie larcenie , because he is not to suffer death for it likewise .

Abiuration is his (a) (a) Stam. 119. b. oath before the Coroner himselfe to depart the Realme for euer at the time and place set him : going the direct way thither : tarrying there but one floud and ebbe if he can haue passage : and till he can so passe going euery day into the sea vp to his kners to assay if he may passe ouer , and if he cannot passe within xl . daies then to put himself againe into the Church as a felon , &c. And this abiuration is an (b) (b) Stam. 122. c. attainder in it selfe ( and that the strongest that can be , being by his owne confession ) and a (c) (c) 4. El. Pl. 262. forfeiture of his lands . And there is a writ of eschete of land for felonie , pro qua abiurauit regnum . And therefore he (d) (d) 3. E. 3. Co 33. f that is hanged vpon iudgement against him , and becommeth aliue againe , cannot abiure ( but an abiuration in that case is an escape ) for one cannot haue two iudgements for one offence .

Statutes .

9. E 2. Stat. de artic. cleri cap 10. Those that abiure may not be molested whilest they are in the street , and whilest they be in the Church their keepers may not tarrie in the Churchyard .

9. E. 2. Stat. de artic. cleri . ca. 15. A Clark shall not be compelled to abiure , but to haue his Clergie .

21. H. 8. cap. 2. Immediatly after confession , and before abiuration , the felon shall be marked in the hand with an hote Iron with the signe of an A. The felon must take his passage at such a day and time as the Coroner shall limit , else he shall lose the benefit of sanctuarie , and be taken out and further ordered according to his demerits , without restitution to sanctuarie .

22. H. 8. cap. 14. If he be found out of the place , he shall dye for it .

22. H. 8. cap. 12. All abiurations shall be made to certaine priuiledged places within the Realme , mentioned in that Act , there to remaine during his life .

CHAP. 34.

Of Replication , Reioynder , Surreioynder , &c.

THe mutuall pleas of both are the debating before issues , or an issue it selfe .

Debating before issue , is the discussing of the materiall things , to draw it to some one issue . As in an action of trespasse or an assise , if the Defendant claime by a lease from the Plaintife to A. who granteth his terme to B. and to B. the defendant , the Plaintife must answer onely to his owne lease , for the assignements of A. are but conueyances and not materiall . But in an assise if the defendant deriue his interest from a stranger , and that A. was seised and enfeoffed B. who enfeoffed C. and C. the Tenant : there the Plaintife may trauerse any of the meane conueyances , for they are all materiall .

Therefore repugnance of a plea vnto it selfe is a fault in pleading , as in an action of Trespasse of his house , and wals broken downe , the Defendant cannot plead touching the house , not guiltie , and as to the breaking downe of the wals iustifie , for this carrieth a repugnancie in it , inasmuch as the house and the wall are all one thing .

So is a departure , where he forfeiteth not the matter of his plea that went before , but commeth in with a new matter . As if the reioynder be a matter puisne , vnderneath the matter of his barre , not aboue and going before it . As in an action of Trespasse , the Defendant pleadeth a descent vnto him of the land , the Plaintife saith , that after the descent the Defendant enfeoffed him . Now if the defendant reioyne that the feoffement was vpon condition , and he entred for the condition broken ; this is a departure for the matter of the barre , that is the descent , is before the matter of the reioynder , that is to say , the entrie for the condition broken , whereby the feoffement is auoided . So if in an assise , the Defendant pleadeth the feoffement of I. S. and the Plaintife make title to himselfe by descent , and that he was disseised by I. S. who enfeoffed the defendant : or that he enfeoffed I. S. vpon condition who brake the condition , and afterwards enfeoffed the defendant , &c.

Now if the defendant say that after the disseisin ( or condition broken ) and after the feoffement of I. S. to the defendant , the Plaintife did release to the defendant , or confirme the estate of the defendant , this is a departure , for that is a matter that groweth after the feoffement pleaded in bar . But if he plead such a release or confirmation from the plaintife to I. S. that is no departure , for it is a matter before the feoffement , or in an action of trespasse for goods , if the defendantentitle himselfe by the gift of I. S. and the plaintife saith , that himselfe was possessed till I. S. tooke them from him , and gaue them to the defendant . Now the defendant may say that after the taking the plaintife gaue them to I. S. who gaue them to the defendant : for although the defendant might haue pleaded these things at the beginning , yet in asmuch as it is pursuing and fortifieth his barre , and no puisne matter vnderneath the title of his barre , but eigne and aboue the matter of his bar , therfore it is no departure . So a plea in barre which is intendible at the Common Law , cannot bee maintained by a matter of custome , or by statute Law . As in an assise the tenant pleadeth in bar a deuise vnto himselfe of the land being deuisible by the custome , the plaintife saith that the deuisor was within age at the time of the deuise . Now if the tenant said that by the custome there an infant of 15. yeares of age may make a deuise : This is a departure , for the custome pleaded in bar shal be entended of those that may make a deuise by the Common Law So if in an action of trespasse the defendant plead in bar a lease for 50. yeares from a house of Religion , and the plaintife auoid it by reason it was made within a yeare before the dissolution , and so void by the Statute 31. H 8. Now if the defendant will alledge that by the same Statute it is prouided that all such leases shall be good for xxj . yeares , and so maintaine the lease to be good for so many yeares , this is a departure : or if one plead a fine , and that being auoided because the parties to the fine had nothing , wil maintaine the fine to be good by the Statute 1. R. 3. because he had leuied the fine cesti qui vse . Lastly , when matters are pleaded which offer seuerall issues , that is termed a double plea , and is a fault in pleading As in an assise to plead a feoffement of the ancestor with warrantie . In debt vpon a simple contract to plead payment and an acquittance . In an assise to plead diuers descents of the land in fee simple , for euery of them requireth a seuerall answer . But in an assise to plead diuerse descents in taile , is not double , for one answer maketh an end of all , that is to denie the gift in taile . So as the matter cannot come but to one issue : So in an action of debt to plead fully administred , and so riens enter mains , for one answer , assets enter mains serueth .

So is it also of two or three matters together with the general conclusion , as in debt vpon an obligation to say , that hee is not lettered , and the deed was read vnto him in another sort : and further , that he deliuered it vpon a condition which is not performed , so not his deed . So to iustifie an arrest for twentie causes of suspition of felonie , is not double , for one answer serueth Des●● tort demesne . No more to assigne in a Writ of error as many errors as appeare in the record , for in millo est erratum answereth then all . But to assigne diuerse errors en fait is double , for these are to bee tried by the Countrey . And the reason of all this is , because vpon diuers issues ioyned , ●f one be found for the party , and another against him , the Court shall be inueigled , and not know how to giue iudgement , whether for him or against him . But to plead a feoffement with warrantie , and relye vpon the warrantie onely is not double , for he cannot plead the warrantie without the feoffement .

Of the first sort are Replication , reioinder , surrender , &c.

In an assise against many , if each (a) (a) 33. H. 6. 36. take the whole tenancie seuerally , a plead (b) (b) 33. H. 6. 36. seuerall matters in barre : or (c) (c) ces Br. ass . 383 one Nul tort and the other in barre : otherwise (d) (d) 44. E. 3. 23. it is if one plead in barre , and the other Ioyntenancie by deed : the Plaintife at his perill must chuse his Tenant . And then after issue for the whole , that , viz. the Tenancie , 8. ass. Pl. 1. shall be first enquired of . And being found for the Plaintife , then the other issue shall bee enquired . Being found against ce● ibid. him and no title made against the tenant indeed , the writ shall abate .

In an action of Trespasse meere transitorie , although the defendant iustifie by any speciall matter , as in a (a) (a) 19. H. 6. 65. Trespasse of goods , by commandement of I. S. whose the propertie is , in (b) (b) 34. H. 6. 16. assault and battery , or an (c) (c) 41. ass. Pl. 21. appeale of mayme , in his owne defence vpon the plaintifes first assaulting of him : in false imprisonment by (d) (d) 5. H. 7. 6. beeing Constable of the Towne , and that the plaintife brake the peace , or (e) (e) 2. E 4 9. by an arrest for suspition of felonie , or by (f) (f) 22 ass. Pl. 85. the commandement of I. S. to seise the bodie of the Plaintife in ward , by reason his ancestour , whose heire he is , held of I. S. by Knight seruice , &c. yet the Plaintife may take issue that it was done De son tort demesne , which is to say , wrongfully by the Defendant without answering to that matter . But if the iustification be by matter of writing or record , as in false imprisonment , by (a) (a) 21 H ▪ 6. 5. a warrant of Iustice of peace to arrest him , or a (b) (b) 5. H. 7. 6. 2 E. 4. 9. Capias that came to him as Sherife to take the body of the plaintife , or if it be any (c) (c) 44. E. 3. 18. 22. ass. Pl. 185. title or licence (d) (d) 12. E. 4. 10. from the plaintife , there de son tort demesn is no plea , but the speciall matter must be answered . So (e) (e) H. 29. El. C. B. alwayes in a trespasse locall , as of his close broken downe , &c. if the defendant entitle a stranger to the land , whether to the freehold , or though it be but to a lease of it , and iustifie by his commandement . And likewise in a (f) (f) B. Roy. repleuin which is reall , the title or speciall matter must alwayes be trauersed . If it bee a trespasse vpon land , the defendant iustifying in some other land then the Plaintife meaneth , the Plaintife may make a new assignement , setting forth the place more specially . As if the defendant 27. H. 8. 7. iustifie in a place called A. as his freehold , the plaintife may say the place where , &c. is called B. other then the place called A. & then the defendant may plead all anew .

CHAP. 35.

Of Issues .

AN Issue is when both the parties ioyne vpon somewhat that they referre vnto a triall to make an end of the plea. And it is of the fact , or law of the fact , which is commonly termed by the generall name of issue , when the proper contradiction of that which one alledgeth is set downe by the other , which is properly termed a trauerse . As in debt vpon an Obligation for performance of couenants , and the defendant plead he hath performed all , the plaintife must shew some in 15. H. 7. 2. certaine which the defendant hath broken , whereupon issue shall be ioyned : but cannot reply that the defendant hath not performed all . For in Lodgicke there be three kinds of contradictions : Generall , when both the propositions are generall , as , All the couenants are broken , None of the couenants are broken . Particular when one is generall , the other particular , as , All the couenants are broken , Some of the couenants are not broken , None of the couenants are broken , Some of the couenants are broken . Proper , when both the propositions are proper , as , This couenant is broken , This couenant is not broken . The two 33 H. 6. 9. former make no issue in our Law , but the latter onely : and euery issue is of an affirmatiue and a negatiue . After which if any insufficiencie of pleading appeare in the record , whether the issue be ioyned thereupon , which we call a Ieofaile , or no , the parties must replede or begin a new where the first defect was . And in this case a Iury 35. H. 8. Br. repled . 54. 7. H. 7. 3. is readie at the bar that to passe vpon the issue , shall be discharged . As if the barre be good , and the replication ill , and issue taken vpon it , the iudgement must bee that the plaintife must make a new replication , and the barre shall remaine . So if the barre bee good , and likewise the replication , but the reioynder ill , and the issue taken vpon the reioynder , the defendant must make a new reioynder , and the replication shall remain . But if the bar be il , and the replication good and the issue taken vpon it , now they must plead all a new because the barre which is first of all is vicious .

But no repleader shall be in an assise , ● the Plaintife haue disclosed a sufficient title : for in an assise no land in certaine is demanded , but an assise onely prayed . And therefore where a sufficient title is disclosed the Plaintife shall haue iudgement vpon seisin and disseisin found for him . And no repleder shall bee notwithstanding that the Tenant haue made a (a) (a) 14. H. 7. 12. vicious barre , or (b) (b) 5. H. 7. 29. 35. H. 6 37. misreioyned . Otherwise it is if the Plaintife take issue vpon an insufficient barre . ( c ) 5 H. 7. 29.

If the tender of this issue come on the Plaintifes part , the forme is , Et hoc pe●i● quod inquiratur per recordu , vel patrid , &c. If on the Defendants part , then it is , Et de hoc point se super recordum illud vel super patriam .

Issue in a writ of right cannot bee ioyned , 19. H. 6. 57. we cal it ioyning of the mise , vpon th● meere right , but by the partie himselfe , not by Atturny .

Where the Plaintife in his replication 15. H. 7. 13. maketh title at large , without trauersing o● confessing and auoiding the barre , or any way medling with it , the Tenant 〈◊〉 ioyne issue vpon the title by saying , V 〈…〉 assise sur la title , that is , Let the assise co 〈…〉 15 H. 7. ibid. 5. H. 7. 29. vpon the title , which is called a pleading ●● the assise at large . This to bee vnderstood where the title is by a matter en fait , but not record , or done (a) (a) 5. H. 7. ibid in a forraine Countie , for they are not triable by the assise . ( b ) 14. H. 7. 6.

And in a personall action , whether trespasse ( c ) 46. E. 3. 11. or repleuin where iustification is made ( d ) 46. E. 3. 11. 10. H. 6. 26. for damage fesant , for that is meerely in the ( e ) 14. H. 7. 6. 4. H. 6. 10. personaltie , where the title of the land commeth in question , lyeth not till issue ioyned . And yet in that case it neuer lyeth for Tenant for life , but onely for tenant for years , bailyfe , &c.

Prerogatiue .

Aid in these actions shall be of the King 5. E. 4. aid de Roy 50. 3. H. 6. ꝑ Pl. 216. before issue ioyned onely , though the King be seised but in his naturall capacitie , as in the right of his Duchie of Lancaster .

CHAP. 36.

Of Triall by Iurie .

THis being of a matter en fait , that is to say , done in the Countrey . For 9. H. ● . 38. a Iurie shall not be charged with a matter in Law , nor it shall not bee giuen in euidence vnto them . But if they will take knowledge of the Law , they may giue their verdict generally , viz. 14. El. Pl. 410. where a verdict may be giuen at large . As vpon an issue of Nul tort nul disseisin . So the Iurie may finde of themselues matters of record if they will , and although it be not giuen in euidence . And therefore a fine or common recouerie may bee giuen in euidence without shewing it vnder the great seale , or seale of the Court , or vouching the Roll of the recouerie , for the Iurie may find them if they will . But peraduenture they are not bound to find it vpon paine of attaint , vnlesse it be shewed vnder the seale is triable by the oath of twelue free and Old N. B. 171. The forme of the writ of venire facias . lawfull men of the same Countie , indiff●rently chosen , whom we call a Iurie , and the making of the Iurie is called a panell or array . And these must be xij . for the verdict of more or lesse , as of (a) (a) 41. ass Pl xj . or xiij . ( b ) is void : free , not (c) (c) 26 ass. Pl. 28. villeins , nor (d) (d) 14. H ▪ 4. 19. aliens : lawfull , for one outlawed may not be a Iuror , because he is not Legalis homo , (e) (e) 21. H. 6. 30. and of the same Countie , for vpon (f) (f) 9. H. 6. 63. a trespasse locall , as grasse cut downe in the Countie of D. where the trespasse was in the Countie of S. if the defendant plead not guiltie , ( as he may ) and the Iurie find him guiltie in the Countie of S. the verdict is void . But 28. H. 8. Dy. 30. if they find them guiltie generally , an attaint lyeth . But vpon an issue whether the Executors haue assets in their hands , the Iurie may find the assets in any Countie , for it is but a transitorie thing . Lastly , the Iurie must be indifferently chosen , so as neither the Sherife that maketh it ( for that is good cause of challenge to the panell or array ) nor the Iurors that are to passe vpon it ( for that is good cause of challenge to the pols ) beare either fauour or malice to any partie . As for the Sherife to put in any Iuror at the parties denomination . And either 7. H. 4. 10. the Sherife or Iuror to be of his (a) (a) 8. ass. Pl. 23. fee , or his (b) (b) 21. E. 4. 67. seruant , or within (c) (c) 20. H. 6. 39. for the Sherife . his distresse , whether his tenant ( imediate or not imediate , as (d) (d) 38 E. 3. 25. holding of I. S. who holdeth of the partie ) or not his tenant , as where he is ( e ) 38. E. 3. ibid. to come to the parties hundred , or the party ( f ) 15. E. 4. 18. Br. chall. 68. 38. E. 3 ibid. maketh a quaere of thi● hath a rent charge going out of his land . To be of kin to the partie , for Cosinage in the Sherife is a good principall challenge to ( g ) 15. Eliz. Pl. 425. for the sherife . 21. E. 4. 63. for a Iuror . the array , and in a Iuror to the Poll : although it be in the ninth degree , and that one cannot be heire to the other of the land in variance . As if husband and wife be vouched ( which is entendible for the warrantie and land of the wife ) and the Sherife or Iuror be cosin in the ninth degree vnto the husband ; the reason whereof is , for the affection which the law entendeth that the one doth carrie to the other . And because one may be heire vnto the other of other land . And therefore it is a good challenge in personall suits also : To haue beene (a) (a) 21. H. 6. 39. for the Sherife . 3. H. 6. 24. for the Iuror . arbitrators on his part in that matter . To (b) (b) 11. H. 4 , 26. haue an action of batterie depending against the partie , or an action of debt by the partie against him , &c. The Iuror to haue (c) (c) 49. E. 3. 2. taken money for his verdict to haue (d) (d) 49. E. 3. 1. giuen it before hand , or to haue (e) (e) 7. H. 4. 11. passed formerly in the same matter : & such other things as of themselues carrie fauour or malice in them , & are called principal challenges . So of those which onely do induce it : as to be the parties (f) (f) 21. E. 4. 67. for the sherife . 14. H. 7. ● for a Iuror . master , (g) (g) 49. E. 3. 1. councellor , Atturny , (h) (h) 14. H. 7. 2. Steward of his mannor , to (i) (i) 11. H. 4. 26. sue him in an action of debt , &c. to be (k) (k) 20. H. 7. 2. of the same societie with him , as if both be of Graies-Inne , or the (l) (l) 14. H. 7. 2. partie to be within his distresse , or (m) (m) 18. E. 4. 13. he to haue passed before vpon such another matter .

Statutes .

Westm 2. cap. 38. In an assise no more shall be sommoned but xiiij .

Men aboue lxx . yeares of age continually sicke , or sicke at the time of sommons , shall not be returned in Iuries or assises : nor any that dwell out of the Countie , vnlesse it be in grand assises .

Artit̄ super chart̄ cap. 9. 34. E 3. cap. 4. Iuries shall bee made of the next people of the Countie .

11. H. 6. cap 1. None dwelling in stewes shall be of a Iurie .

9 E. 3 cap. 4. A deed pleaded in a franchise shall bee tried in the Countie where the action is brought .

2. E. 6. cap. 24. Vpon stroke or poyson in one Countie , the partie dying in another , an enditement and triall may bee in the Countie where hee dieth . And an appeale sued there and tried by xij . men of the same Countie .

Likewise the accessaries in one Countie to a murder or felonie in another Countie , shall be indited , arraigned , &c in the countie where the offence of accessarie is done .

33. H. 8. cap. 20. Enditement of a person lunaticke , being at the time of confession of treason before the Councell , of perfect memorie , and so certified by them , shall be tried by freeholders of any Shire to bee appointed by commission . And the triall whether he be culpable or not , shall be there in his absence .

33. H. 8. cap. 23. Confession of Treason , Misprision of Treason , or murder beeing made before the Councell , or three of them , or they vehemently suspecting one of such an offence , it shall be enquired , heard , and determined by Commission out of the Chancerie , in the shire or place limited in that Commission , by such lawfull persons as shall be returned ; wherein no challenge for the shire or hundred shall be allowed .

28. H. 8. cap. 13. & 27. H 8. cap. 4. All treasons , felonies , robberies , murders , and confederacies within the Admiralls iurisdiction shall bee enquired and determined in such forme of Law as if it were done vpon , the land by commission directed to the Admirall and three or foure other assigned by the Lord Chancellor in the shire limited in their commission , where no challenge shall be for the hundred .

32. H , 8 cap. 4. The enditement and arraignment of treasons and misprision of treasons in Wales , or else where the writs out of the Chancerie of England run not , shal be in such shires , and before such commissioners as the King shall appoint .

35. H. 8. cap. 2. All treasons , misprisions , or concealments of Treason done out of England , shall be enquired , heard , and determined in the Kings Bench by men of that shire where the Bench sitteth , or else before Commissioners , and in such shire as shall be limited by commission .

1. & 2. Ph & Mar. cap. Trials for treason shall be according to the course of the common Law .

23. E. 3. cap. 3. No enditor be put in enquests vpon the deliuerance of enditees of felonies or trespasse .

Westm. 2. cap. 38. None shall bee put in assises or Iuries triable in their owne shire , but such as haue xx . s. a yeare freehold , nor in assises triable out of their owne shire , vnlesse they haue xl . s.

21. E. 1. De ponend' in Assisa . None shal be put in assises triable out of their owne shire but such as haue lands to the yearely value of C. s. nor in assises triable in their owne shire , vnlesse they haue xl . s.

2. H. 5. cap. 3. None shall passe in an enquest vpon the triall of the death of a man , nor betweene partie and partie in plea reall or personall , whereof the debt and damages amount to xl marks , vnlesse he haue lands of the yearely value of xl . s.

33. H. 8. cap. 13. In Cities , Boroughes , or corporate Townes , an inhabitant beeing worth xl . l. in goods , shall be admitted in triall of murders and felonies in euery Session and gaole deliuerie for that Towne , though he haue no freehold .

35. H. 8. cap. 6. made perpetuall .

2. E. 6. cap. 32. The cause of hauing xl . s. value , must be inserted in the venire facias : and bee of lands out of antient demesne . Where that clause needs not , the Iurors must dispend some land of freehold out of antient demesne within the Countie where the issue is to be tried .

27. Eliz. cap. 6. Where the Iurors returned in the Kings Bench , Common place , Exchequer , or before Iustices of assise , ought to haue xl . s. freehold , there they shall from hencefoorth haue xl . l. yearely freehold out of antient demesne , in the Countie where the issue is to be tried . And the clause thereof inserted in the venire facias . These two Statutes extend not to corporations .

27. Eliz. cap. 7. No Bailife of libertie shal returne to the Sherife , or deliuer vnto him the name of any person to be returned in a Iurie without some addition whereby the partie may be knowne . Neither shall the Iurie , &c. returne any Iuror out of a libertie without some addition whereby he may be knowne , nor within a libertie with other addition than that is deliuered vnto him by the Baylife , &c.

8. H. 4. cap. 3. Euerie Iuror returned within the Countie of Middlesex shall be called the fourth day of the returne , and appearing at the same day , their appearance shall be recorded , and they shall not be amerced nor lose their issues .

5 E. 3 ▪ cap. 10. A Iuror taking of the one part or of the other , shall neuer be of Iurie more . And besides imprisoned .

34. E. 3. cap. 8. The partie or any stranger may sue him for it .

38. E. 3. cap. 12. And both the Iurors , and the embraceors to procure it , being thereof attainted , shall pay ten times so much as he hath taken .

Westm. 2. cap 30. Assises of nouell disseisin , mortdancester , and attaints , shall be taken thrice a yeare by two Iustices assigned , associated with one or two discreet Knights in the Shire where they come .

In euerie shire before their departure they shall appoint the day of their returne : And adiourne the assises if the taking be by any meanes deferred .

Also in assises of mortdancester beeing respited , they may adiourne into the Bench if need be . And when it commeth to the taking of the assise , the Iustices of the Bench shall send it backe againe to them .

All pleas in either of the Benches that require small examination , shall be determined before them .

27. E. 1. cap. 4. Statutum de finibus leuatis . Such enquests being taken , shall be returned into the Bench , and there iudgement shall be giuen .

Enquests and Recognisances determinable before Iustices of either Bench , shall be taken in vacation time , before any of the Iustices before whom the plea is brought , being associate to one Knight of the same shire , where such enquests shall passe , vnlesse it require great examination .

12. E 2. cap. 3. Stat̄ Eborat̄ . Enquests in pleas of land ( that require no great examination ) shall be taken in the Countie before a Iustice of the place where the plea is accompanied , with a substantiall man is the countrey , Knight or other , so that a certaine day be giuen in the Bench , and a certaine day and place in the countrey , i● presence of the parties demanding of the same .

Enquests in pleas of land that require no great examination , shall bee taken in the Countrey ( in manner abouesaid ) before two Iustices of the Bench.

2. E. 3. cap. 17. All such enquests in plea of land shall hereafter be taken as well of the request of the tenant , as demaundant .

42. E. 3. cap. 11. Nisi prius shall not bee granted before the name of the Iurors returned .

7. R. 2. ca. 7. In all manner of pleas where an Nisi prius is grantable of office after the great distresse returned , and thrice serued before the Iustices against the Iurors , and thereupon the parties demanded if any of the said parties will pursue , or if the parties refuse to haue Nisi prius in the case , then at the suite of any of the Iurors that is present a nisi prius shal be granted for ending of the quarrell .

14. E. 3. cap. 16. The Nisi prius in the Kings Bench shall be granted before a Iustice of that place , if any Iustice of that place may well go into those parts . Else before a Iustice of the Common place , &c. otherwise the chiefe Baron being a man of the Law , if , &c. or else before the Iustices assigned to take assises in those parts . So that one of them be a Iustice of one Bench or other , or the Kings Serieant sworne .

18. Eliz. cap. 12. The chiefe Iustice of England vpon issue ioyned in the Kings Bench or Chancerie , and the chiefe Iustice of the Common pleas , and chiefe Baron of the Exchequer , vpon issues ioyned in their seuerall Courts ( or in their absence two other Iustices or Barons ) or made Iustices of nisi prius for the Countie of Middlesex , in all issues ioyned to set in Westm Hall within the Terme , or foure dayes after .

4. E. 3. cap. 11. confirmed 7 Ric. 2. cap. 15. Iustices of nisi prius shall enquire , heare , and determine , as well at the Kings suite as the parties , all mainteyners , conspirators , makers of confederacie , and committors of Champertie , and all other things conteyned in the sayd Article , as wel as Iustices of Eyer should doe , if they were in the same Countie .

14. H. 6. cap. 1. Iustices of nisi prius haue power in cases of felony and treason as wel vpon acquittaile as attainder , and thereupon to award execution .

Stat̄ Eborat̄ . 12. E. 2. cap. 2. Vpon a deed denied where witnesses are named , processe shall be awarded against the witnesses if they come not at the grand distresse , or vpon a nihil non inuentus returned , yet the taking of the enquest shall not bee deferred . If he come at the grand , and the enquest remaineth vntaken for some cause , the witnesses shall haue idem dies , and not appearing , then the first issues returned vpon them shall be forfeit , and the enquest taken , notwithstanding their absence .

An enquest shall be taken notwithstanding the absence of witnesses dwelling in a franchise where the Kings Writ runneth not . Foure of the Iurie must also be of the 7. H. 4. 17. 36. H. 8. Dy. 61. same hundred , and so many are enough though it be in an attaint where the Iurie is xxiiij . In an information vpon the Statute of pluralitie of farmes , for hauing 7. Farmes in 7. Townes in foure seuerall hundreds : If foure of the Iurie haue any thing , or dwell within any of the foure seuerall hundreds it is sufficient .

Statutes .

15. H. 8. cap 6. made perpetuall . 2. E. 6. cap. 32. Sixe sufficient Hundreds shall bee returned in euerie Iurie .

27. Eliz. cap. 6. If two sufficient hundreds appeare in any personal action , it is enough .

If the thing in issue lye in the notice of two seuerall Counties , and not of one only , for (a) (a) 15 Eliz. onely two Counties may ioyne , and no more . And two may though they be not the next , as Kent & Deuonshire , the Iurie shall be made (b) (b) 49. ass. Pl. 1. 1. equally out of both : That is , sixe out of the one , and sixe out of the other . And this wee call a Ioynder of Counties , as in (c) (c) 49. E. 3. 19. 21. H. 6. 3. an action of trespasse , if the defendant iustifie for common appendant to land in another Countie : or in a writ of anuitie and Count of a seisin in another Countie then where the Church is , out of which the annuitie goeth .

Statutes .

7. Rit̄ . 2. cap. 10. An assise of nouell disseisin of rent out of the Tenements in diuerse Counties , shall be in the confine of the said Counties .

But vpon an enditement of an offence against the Crowne , the triall shall neuer 4. H. 7. Coro . 60. 6. H. 7. 10. be by ioynder of Counties . Therefore an enditement that one stroke I S. in one countie , of which stroke hee died in another Countie , is no good enditement , because it cannot be tried , for that the Counties cannot ioyne in an enditement . And therefore before the Statute 2. and 3. E. 6. ( which altereth the law in this case ) they were wont to carrie the corps into the Countie where the stroke was . But otherwise it is in an appeale .

But if the Defendant plead in any action , as in a homine replegiando , or though it 19. H. 6. 18. by the common law . 40. E. 3. 36. be but in a writ of trespasse or debt , that the Plaintife is a villein regardant to a mannor of his in another Countie , yet the same shall bee tried in the Countie where the writ is brought . And this is in Fauorem libertatis .

28. E. 3. cap. 3. confirmed . 8. H. 6. cap. 28. In euery suit betweene an Alien and a Demesne ( though the King bee a partie ) the one halfe of the Iurie shall be the Aliens . If so many be in that visne , and if there be not to that number , then so many as bee there not parties , nor with the partie to the suite .

Where a Peere of the Realme is 〈◊〉 to the action , a Knight must be returned to 2. Mar. Pl. 117. the Iurie .

Statutes .

Magn̄ chart̄ cap. 29. A Peere of the Realme vpon an enditement of felonie or treason shall be tried by his Peeres .

20. H 6. cap. 9. Duchisses , Baronesses , Countesses , sole or married , shall be tried ( in such cases ) as Peeres of the Realme . In a Court of Pipowders the triall is by Preamble of the Stat. 7. E. 4. ca. 2. so reciteth it . 39. E. 3. 2. 39. E. 3 2. 1. Mar. Dy. 98. There must be 12. beside the foure Knights . Bra● . 42. the Merchants .

The Iurie in a writ of right is called the Grand Assise . Being foure Knights , ●● other in default of Knights , chusing a Iurie of 12. vnto them . So note xvj in all , for the grand Iurie is alwayes aboue xij . and therefore no attaint lyeth for him that loseth in a writ of right , because it passeth by the grand assise which is more then xij .

Challenges are here allowed for th● parties ( if they will ) both to the array 〈◊〉 to the pols . And whether to the pannell or the pols , are to be tried by some of the Iurors , if it be (a) (a) 27. H. 8. 26. before any Iurors swor● , the Court shall chuse the Triors , when any Iurors are sworne they must trie it .

Challenge to the array is when the Iurie is not sufficiently empanelled vpon 〈◊〉 cause of challenge to the Sherife , and afterwards to the Coroners , who by reason ( ● ) 14. H. 7. 31. 4. H. 7. 3. of iust exception against the Sherife made or should make the array , the (d) (d) 8. H. 6. 12. 15. E. 4. 24. Court must chuse certaine named Esloirs , (e) (e) 15. E. 48. where the parties shall neuer haue challenge to the whole array . Challenge to the poll is when any of the Iurors are insufficient to passe vpon the triall . This challenge must be taken before the pannell be 27. H. 8. 26. perused : For if the plaintife challenge one , and when the pannell is perused , the defendant challenge the same person , yet the plaintife may release his challenge , & then the Iuror shall not be drawne , because the defendants challenge is nothing worth , in that it was not made till the pannell was perused , and shal be tried by two of the Iutors chosen by the Court , against whom 27. H. 8. 26. no challenge shall be admitted , but challenges that sound not in reproch of the iuror , as to be (a) (a) 49 E. 3. 1. of counsell with the party , or (b) (b) 3. H. 6. 36. within his distresse , to haue (c) (c) 19. H. 6. 9. nothing within the hundred , or (d) (d) 21. H. 7. 29. 27. H. 8. 26. not sufficient freehold , shall be examined vpon his oath , which we call an examination vpon a voyri dire . He that challenged the array if it passe against him , or ( which is as strong ) if he release it , shall neuer challenge the pols without shewing cause presently , which shall be tried out of hand . Before the Clark ( e ) 7. H. 4. 46. 7. E. 4. 17. passe thorough the pannell . So shall not any other challenge . And after challenge to a Iuror for one cause , as fauour , &c. which passeth against the challenger , he shall 〈◊〉 challenge him for another , as for hauing nothing in the hundred ▪ &c.

In enditements and appeales of 〈◊〉 the defendant may challenge xxxv . I 〈…〉 Stam. 157. b. Doct. St. ꝑ Br. chall. 11. in an appeal . without shewing cause which is called a peremptorie challenge .

Statutes .

22. H. 8. cap. 14. No person arraigned for any petie treason , murder , or felonie , shall be admitted to any peremptorie challenge , aboue the number of twentie .

When there lacketh some to fill the I●●● , as the greater part being returned dead , ●● 20 E. 4. 11. Stam. 159. ● . not appearing . But if all the pols be challenged and drawne , there no tales shall be , but a new venire facias for tales referred ●● ( quales ) some like thing , other of the s 〈…〉 sort shall be taken , for there may bee ma●● tales one after another , (a) (a) Stam. 155 c. till it bee 〈◊〉 which we call a Tales , which must be●●● (b) (b) Bract tales 11 euen number (c) (c) 37. H. 6. 12. lesse then the pr 〈…〉 pall pannell , As a decem tales , octo tales , & ● or in an attaint where the Iurie is xxiiij . ● tales , &c. And (d) (d) 14 H. 7. 2. euerie tales must be 〈…〉 lesse number then other . As after an O 〈…〉 tales , a Sex tales , but not a decem tales , not ●● Octo tales againe .

Statutes .

35. H 8. cap. 6. made perpetuall . 2. ● . ● cap. 32. A Tales may be made vp before Iustices of Assise or Nisi prius of able persons of the same Countie , then present at the prayer of the plaintife or demandant .

4. & 5. Ph. & Ma. cap 7. So for the King vpon request by any authorised thereunto , or assigned of the Court , or by the partie that followeth vpon a penal statute as wel for the King as for himselfe .

14. El. Cap. 9. Such a Tales de circumcibus before the Iustices of Nisi prius shall be granted at the prayer of the defendant or auowant .

But in Enditements and Appeales 14. H. ● . 7. that touch life , a Tales may be of a greater number than the principall Panell . As a xl Tales , or as many as the Court wil award , and that is in respect of the peremptorie challenge of xxxv .

The Iurie being charged , may neither eat nor drinke ( but by leaue of the Iustices ) 20. H. 7. 3. 6. H. 8. Dy. 3. before their verdict giuen ; and doing it before they bee agreed , it maketh their verdict void . After they be agreed , it is but fineable .

The Iurie vpon arraignement either at the (a) (a) 14. H. 7. 2. Kings suit , (b) (b) 14 H. 7. ibid. or in an Appeale acquitting one that was found guilty of the (c) (c) 13. E. 4. 3. 4. E 6. 12. death of a man vpon an enquirie (d) (d) 13 E. 4. ibid. 4. E. 6. ibid. by the Coroners Super visum corporis must find who did the fact . But not vpon an Enditement (e) (e) 14 H. 7. ib ▪ before the Sherife or Iustices of peace , for that is not of Record , a● th● finding before the Coroner is , (f) (f) 13. E. 4. ibid. 4 E. 6. ibid. neither doth this take place in an acquitaile vpon an Enditement for the felonious taking of goods .

The Iurie in an Assise of Nouel disseis●● ( which are there themselues properly called 7. E. 6. Pl. 91. Ibid. an assise ) shall inquire of the plea in abatement , though the issue be ioyned vpon the seisin and disseisin . And therefore no plea in Abatement is there answerable .

34. E. 1. De Coniunctim feoffatis . The defendant in Assise alledging iointenancie of his part with a stranger by Deed , the plaintife may auer him to be sole tenant ; wherupon Processe shall be made against both the defendant and the stranger . And if at the day both of them iustifie the feofment , they shall maintaine the exception , and further answer to the Assise as if the originall had been purchased against him iointly . If the exception be prooued false by the Assise , they shall haue a yeares imprisonment though the assise passe for them . If the defendant absent himselfe at the day , the Assise shall passe against him by default , though the stranger appeare and iustifie the Deede . Whither both , or one appeare , if it be found by the Assise that the Exception was truly alledged , the Assise shall passe no further , but the Writ shall abate . Such an Exception shall not bee alledged by the Bailife of any Tenant . The like processes in assises of Mortdancester and Iuris vtrum .

An Infant bringing an Assise , if a matter en fait , that is , done in the same Countie be pleaded against him , whether in Abatement , ( a ) 11. Ass. pl. ● . as in an assise of rent , that he had made his plaint of the same land whence he supposeth this rent to bee issuing ; or in bar , (b) (b) 48. E. 3. 33. as the Deed of his Ancestour , with warrantie , the Iurie shall inquire of all the circumstances . Otherwise it is in a Writ (c) (c) 9 E. 4. 34. of Entrie sur disseisin , or other (d) (d) 48. E. 3. ibid. Praecipe qd reddat : for there the point put in issue , and no other , shall be tried by the Iurors . Otherwise it is also in an Assise vpon pleading a recouerie (e) (e) 48. E. 3. ibid. against him , or other matter of Record : in that case he must answer , and the Iury shall not inquire of the circumstances , fot the Court shal plead and maintaine for him .

The like inquirie of the circumstances 28. Ass pl. 21. shall be , if in an assise brought against him he plead to the assise at large . Otherwise it is if he plead in bar , for there if the plaintif make himself title as by a statute marchant &c. and the infant trauerse the title which is found against him , the plaintif shal haue iudgment without inquiring of the circumstances , because the issue is taken out of the point of the assise , and therefore is al one as if the infant were of full age . So that it is better for an infant to plead vnto the assise at large , than otherwise .

The forme of an Assise of nouel Disseis●● is Old N. B. 104. this , Rex vic' salutem . Quastus est 〈…〉 B. iniuste , & sine iudicio disseisiuit e 〈…〉 tenemento suo in N. infra triginta ann●● i●●ltimos clapsos . Et idéo tibi praec' qd si pradi●●● fecerit te securum de clam' suo pr' os tunc 〈…〉 nement' illud reseisum de catallis quae i● i●s● capt' , & ipsum ten' cum catall . esse in p●●●●sque ad proximam assisam , cum Iustic' ●●'i i● p●●tes ill' venerint . Et in earim fac ' 12 liberos & legales homines de visum illo videre tan' illud , & nomino eorum imbreuidri fac' . Et sum' en p●● 14. El. D. 310. for all . bonos sum' qd sint coram praefat' Iustic' ●r ' i●●● pr●fatā assisam parati inde facere recogn' ●● pona per vadium & saluos pleg' praed. B. vel 〈…〉 suum , si ipse inuentus non fuerit qd tunc sit ibi ●● illud recogn' anct' . Et habeas ibi summ' 〈◊〉 pleg' : & hoc breue . Teste , &c.

If the tenant in a Mortdancester ( bee it tenant of the land , or tenant by his waranty ) 40. E. 3. 48. 39. Ass pl. 13. trauerse any point of the writ , as the dying seised of his Ancestor , &c. which goeth in abatement of the writ , yet the Iury 〈◊〉 inquire of all the points : as whether the d●mandant be next heire , & whether his ●●cestor died within fiftie yeares , &c. 〈…〉 one found against the demandant , 〈◊〉 the writ . But a plea in bar of the assise by matter of record , releas , collateral warr 〈…〉 or such other matter as is out of the 〈…〉 points of the Assise , is peremptorie to the Tenaunt , if it passe against him . And ●● such a plea in Barre bee found agai●●● the Tenaunt , and yet the Iurie inq 〈…〉 further , and find one of the points of the writ against the Demaundant , as that his ancestor died not seised , &c. he shall recouer notwithstanding that , for such an enquirie should not bee vpon a plea in barre . Dyer thinketh it to be so likewise , where the Tenaunt voucheth , and the Demaundant doth counterplead the voucher , viz. that in that case though the counterplea be found for the Demaundant , yet that all the points must be enquired and found for the Demaundant , or else he shall not recouer . But Fitzherbert thinketh otherwise in that case , because it is a plea in barre , and not to the Writ .

For the Iuries direction in their verdict greater libertie is permitted in pleading , ● 9. E. 4. 3● . matter doubtfull in Law , for a Trauerse may be omitted . As in debt against an Executor , it is a good plea to say , Administration was committed to him , and therefore he should be named Administrator , and not executor , without trauersing that he is not Executor , for the lay people know no difference betweene one administring as Executor and one administring as Administrator .

The speciall matter may be pleaded together with the generall issue , &c. As that 9. H. 6. 38. the Obligation put in suite , was sealed by him and deliuered to A. to keepe till certaine Indentures were made betweene the Plaintife and him , before which Indentures made , the Plaintife tooke the Obligation out of the possession of A. So is it not his deed . This is good , and yet by this generall conclusion the matter precedent shall not be waiued , for it were perillous to put the speciall matter in the mouth of the Lay people .

The Count may be abridged before verdict , so as the originall remaine true , as in an assise of his freehold , and make his plaint of land and rent , he may abridge it 14. ass. Pl. 9. 4. E. 4. 33. 14. H. 6. 4. for the rent . In an assise of his freehold in D. and demand two mannors in D. he may abridge his plaint for one . But being of his freehold in D. and S. and demand one mannor extending into both , he cannot abridge either of them , for then the writ remaineth not true . In a writ of wast and assigne it among other things , in racing of a Copper 10. El. Dy. 172. fixed to the soile , he may abridge the wast assigned in that , so as thereby he falsifie not his writ . But if the writ bee Quare vastum fecit in domibus boscis & gardinis , he cannot abridge the wast supposed in domibus . In a writ of ward De custodia terre et heredis , and 39. E. 3. 10. count of the mannor of D. and xv . acres of land , which in truth are parcell of the mannor , and pleaded by the defendant in abatement of the writ : hee may abridge his demand of the xv acres . In trespasse de bonis et catallis captis , and count of money taken away ●9 . E. 3. 20. Br. abridgem . 111. ( for which this forme will not serue , the money must needs bee expressed in the writ ) hee may abridge the count touching that .

Statutes .

21. H. 8. cap. 3. The demaund of a thing entire may bee abridged before verdict , though thereby the writ become false . After acquitaile vpon an appeale or enditement of felonie or treason , he shall neuer be drawne in question for the same offence againe . Therefore vpon an enditement of manslaughter or murder , the Iustices ( by discretion ) were wont not to proceed to arraignment 22. E. 4 Coro . 44. till the yeare and the day were past , for otherwise if he should bee acquit vpon his arraignment , the parties appeale were lost .

CHAP. 37.

Of Triall by Battaile .

IN (a) (a) Old Nat. Br. 1 writs of right and in appeales (b) (b) See the manor of waging battails and performing it . 9. H. 4. 3. in an appeale of robberie 17. E. 3. 2 ●n an appeale of murder . that touch life , triall may be by battaile at the Defendants choice . Therefore (c) (c) Old N. B. ibid. 9. E. 4. 35. the Demaundant in a Writ of right had neede alwayes to haue his Champion readie , else he may happen to be deceiued .

The battaile in a writ of right must be all by Champions . Therefore in a writ of right an Infant may ioyne the Mise & trie it by battaile . So can he not in an appeale , for there it must be done in proper person : which Champions must bee (a) (a) Br. Chal. 1 96. freem●n , not villeins , & (b) (b) 3. H. 6. 55. so is the issue taken that he is readie to defend it by the body of I. S. a freeman . Therefore (c) (c) Bracton . for the Lord to offer his villein for his Champion in a writ of right , or in an appeale , is a manumission of him . And the Demaundants champion Westm. 1. cap. 40. so reciteth i● . must haue seene him or his auncestors i● possession , and thereof take his oath .

Statutes .

Westm. 1. ca. 40. Touching the oaths of the Champions it is thus prouided , because it seldome happened , but that the Champion of the demaundant is forsworne , in that he sweareth that hee or his father saw the seisin of the land or his ancestor . And that his father commanded him to deraigne the right , that from henceforth the Champion of the demaundant shall not be compelled so to sweare .

The battaile in an appeale must bee in ● . E. 4. 35. proper person . And therefore there the Defendant is restreined from the choise of battaile , and must needs trie it by Iurie . If there be any notorious presumption of the fact in him , as that hee brake prison , or escaped ( a ) 1. ass. Pl. 6. by flight beeing led towards prison for it , or was (b) (b) 22. E. 4. 19. endited for it . So in an appeale of murder , that he was taken in the act with a (c) (c) 6. H. 3. Coro . 411. bloudy knife , in an appeale of robberie , that vpon fresh suite and hue and crie hee was taken with the manner , hauing some of the money about him , or 22. E. 4. 29. of imbecilitie in the Plaintife , as if he bee maymed , or within age , &c.

But against a Peere of the Realme Discourse of the Cust . of London . fol. 13. Stam. 108. bringing an appeale , the Defendant shall not wage battaile , much lesse against the king either vpon an enditement or appeale .

6. Ric. 2. cap. 6. Ousteth battaile in an appeale of rape .

CHAP. 38.

Of Triall by witnesse .

IN a writ of dower issue taken vpon the 8. H. 6. 23. death of her husband shall bee tried by witnesses . So shall no other case in the Law .

CHAP. 39.

Of Triall by wager of Law .

IN some cases also the triall shall bee by the Defendants oath , which wee call 22. H. 6 41. waging of his Law . As 1. where the tenaunt in a praecipe quod reddat alledgeth that he was not lawfully sommoned according to the Law of the land . 2. in meere personall contracts , wee call them simple contracts , as (a) (a) 1. H. 6. 1. debts for money lent , or rent vpon a lease for yeares of a stocke of sheepe , or such like : ( but (c) (c) 9. E. 4. 1. not vpon a lease of land . And though it be of land stored with beasts , yet the defendant shall not wage his Law for the rent due for the beasts , for it is all but one entire contract ) detinue of a horse , or other personal thing : but not of a deed indented , or obligation , 34. H 8. Br. leygager 97. 18. E. ● 23. 39 H 6 35. ●7 . H. 8. 22. or of a lease for years of land , nor in an action vpon the case , for it is not by reason of any contract growing without deed , for in debt vpon sale of a horse for x. l. if the plaintife haue a specialtie of it , he shall estoppe the defendant to wage his Law . But vpon detinue and count of a bailement by deed , yet the defendant may wage his Law , for detinue is the cause of the action , which may bee discharged by matter en fait , as the defendants redeliuerie , or the plaintifes taking 18. H. 8. 3. of it backe againe , &c. or priuitie of others , for in detinue vpon a bailement by another mans hand , the defendant may wage his Law , because he is not to answer to the bailement , but to the detinue . So in debt vpon a Contract by another mans hand . But not in accompt vpon receit by another mans hand , for there he must answer to the receit : the defendant may wage his law . Therefore in such kind of actions exexutors 15. E. 4. 25. are not chargable , as in debt vpon sale of goods to the Testator , & (b) (b) 2● . E. 3. 40. though the partie haue a taile ensealed of it , for that is no specialtie : or for (c) (c) 11. H. 6. 48. wages due by the Testator vpon a retainer . Otherwise it is in such an action brought by a Laborer ( who is bound by Statute to serue ) in (d) (d) 10 H. 6. Execut. 21. debt vpon arrerages of an account made by the Testator before Auditors ( who are Iudges of record ) or (e) (e) Br. Execu. 33. vpon a lease for yeares though it bee made without deed , for in none of these cases the testator could wage his law .

Prerogatiue .

No wager of Law shall bee against the 24 E. 3. 39. 18. E. 3. 4. King . Therefore in an attachment vpon a prohibition the partie shall not wage his law that he did sue forward contrary to the Kings prohibition , for the King is quod amodo party of the contempt . And for this cause 50. E. 3. 5. also , debt vpon a simple contract shall not be forfeit to the King by outlawry , for then the partie were in worse case then before , where he might haue waged his Law .

Statutes .

Magn̄ chart . cap. 28. Wager of Law shall not bee admitted without credible witnesses .

5. H. 4. cap. 8. In actions of debt vpon the arrerages of an accompt fayning to the intent ( to put the defendants from their law ) that the same was found before their Apprentices or seruants Auditors assigned in , shall be in the Iudges discretion vpon examination of the Atturnies , or whom else they please to receiue , or oust the defendants of their law .

3. In plaints in Court Barons personall things vnder 40. s. yet ( by prescription ) 1● . H. 7. 18. it may be by Iurie : which i● against the common course and order of it .

CHAP. 40.

Of Demurrers .

AN issue of the Law which we call a demurrer , is when admitting the 7. E. 6. Pl. 85. matters alledged either of them resteth in the iudgement of the Law . The forme of ioyning a demurrer is , Et praed. quer' dicit quod placitum praed. definimus sufficiens in lege existit ad ipsum , the Plaintife , ab actione sua praed. &c. praecluden . quodque ipse ad placitum illud modo & forma placitatum necesse non habet , nec per legem terre tenetur respondere , vnde pro defectu sufficient . responsionis petit Iudicium , &c. Et praed. Def. ex quo ipse sufficient . mater in lege ad praed. quer' ab actione sua praed. versus eum habend. praecludend . superius allegauit quam ipse paratus est verificare , quam quidem 〈◊〉 praed. quer' non dedicit , nec ad eam equa●●●●● respondet , sed verificationem illam admitte●● recusat petit Iudicium : & quod praed. quer' ab actione suo praed. versus eum habend. praec●●datur .

This beeing ioyned vpon an exception 50. E. 3. 20. to the originall it selfe or count for some fault appearing in it , doth onely driue the defendant to make a better answer , which we call a respondes ouster , if it passe against him .

CHAP. 41.

Of Apparance .

THus farre concerning pleading . The other meane acts are Apparance , and Continuance , or Iudiciall processe .

Apparance is the parties comming into the Court. where vpon (a) (a) 12. H. 4. 24. 1. H. 6. 4. Common day giuen the fourth day after the verie ( b ) F. N B. 25 ● . 1. H. 6 ▪ ibid. day is allowed , and so are all entries , obtulit se quarto die post . But so is it not vpon a certaine day giuen vnto him , as Monday , Tuesday , or such like .

When the partie for not appearing 48. E. 3. 1. should haue some great losse or corporate paine , as to haue a Charter of pardon allowed where one before was outlawed at his suite , at a Sequatur sub suo periculo , when if he appeare not , the land is lost : in a repleuin , sicut pluries , when a Capias in Withernam 7. E 4. 15. 8. H. 6. ibid. 3. H. 6. 14. is to go against him , &c. hee may appeare though the officers returne force him not to it , as if in the two first cases hee returne a nihil , or ( that the beasts be esloined ) in the latter .

If the Plaintife will not appeare when 8. H. 6. 8. 3. H. 6. 13. 3. H 6. 50. 8. H. 6 ibid. 3. H. 6. 14. he is demanded at the day , which is called a non suit , or say in Court that hee will not sue forwards , which is called a retraxit , and alwayes of record , this is peremptorie , and loseth him his action . But in real actions 10. ass. Pl. 12. in an assise . Old N. Br. 46. brought by many , if one will not prosecute the rest may alone . Except in the writ De natiuo habendo , that is , fauorem libertati● .

For executors also Sommons & Seuerance lyeth in personal actions . 48. E 3. 14. Br Som & Seu. 9. 7. H 6. 39. 41. B● . default. 34.

If the defendant will not plead , which is a nihil dicit , this in all actions , reall and personall , is peremptorie , and loseth the action .

So in personall actions if hee appeare , and the (a) (a) 7. H. 6. ibid. same terme or otherwise , after (b) (b) 38 H 6. 33. plea or (c) (c) 18. E. 4. 7. demurrer ioyned make default . And this default shall neuer be saued , how good cause soeuer he haue to excuse it , as fall of waters , imprisonment , &c. for to appeare and plead , and not to maintaine it , is a kinde of nihil dicit . But either of the parties may for once , for ones common essoyne 9. H 5. 5. 35. H. 6 33. lyeth not after another without mesn degrees be excused of apparance , by an essoyne which lyeth not for him that appeareth in proper person ( for it is to excuse his absence , whereunto his presence is contrary ) nor that commeth in by exigent , or Cepi corpus ( for he abideth in ward , or by mainprise and therefore cannot make default ) if they cast an essoine , that is to say , demand it the 18. E. 4. 4. first day , or any of the foure dayes , vnlesse the other cast an exception , that is to say , enter an exception that no essoine be receiued . And the fourth day the essoine must either be allowed ( and then it is said to be adiudged and adiourned ) or disallowed . But vpon euery meane apparance a new essoin lyeth , (a) (a) 27. H. 6. 2. 21. E. 4. 16. though one were cast before ( for the Pl and Def. if they list , may fourch infinitely by the common Law ) As after issue vpon a custome bastardie , or ne unque acōple en loyall matrimony , at the day of the certifying 39. H. 6. 29. the defendant may cast an essoyne : After essoine of the demaundant , if the Tenant at the second day bee essoined , and at the third day demand the view and hath it . 27. H. 6. 2. Now at the day after the view , he may bee essoined againe , and at the day after that the demandant vpon a wager of law in debt and day giuen to doe it , if the plaintife be essoined at the day , and at the day giuen by the essoine the defendant bee essoined , now the plaintife at the day may be essoined againe .

And this is called essoin de male venir , or the common essoine . Beside which essoines for speciall causes , as of being beyond sea , going ad terram sanctam , of the Kings seruice , & d malo lecti are allowed And haue (a) (a) 27. H. 6. 1. a yeare & a daies adiournment , whereupon an (b) (b) 2. E. 4. 16. oath must bee taken that the cause is true

But no such speciall essoine lyeth in an assiss (c) (c) 21. H. 6. 42. of nouell disseisin , (d) (d) 44. E. 3. 15. dower , (e) (e) 27. H. 6. 1. assise of darrein presentment , 〈◊〉 Q●●●e impedit , for then the sixe moneths would passe and so the Church come in lappe , for such essoines must haue a yeare and a daies adiournment . But a Common essoyn lyeth in all those cases .

Statutes .

Westm. 2. cap. 12. In an appeale of the death of a man no essoyne shall lye for the Appellor , for whatsoeuer cause in whatsoeuer Court the appeale be .

Westm. 1. cap. 41. In assises and Iuris vtrum after that the tenant hath once appeared , he shall be no more essoyned .

Westm. 2. cap. 28. In like manner it shall be touching demandants in an assise .

Westm 1. cap. 42. Parceners and Ioyntenants in a praecipe against them shall haue but one essoyne .

Glocest . cap. 10. So of a man and his wife impleaded in the Kings Courts .

9. E. 3. cap. 3. Stat. 1. In a writ of debt against executours , they nor any of them shall haue but one essoyne before apparance , that is to say , the summons or Attachment , nor but one after apparance .

Westm 2. cap. 27. None allowed after the day giuen by Praece partium , in case where the parties consent to come without essoyne .

Marleb . cap. 13. After a man hath put himselfe vpon an enquest , he shal haue but one assoine .

Westm. 2. cap. 27. After one hath put himselfe vpon an enquest , an essoyne shall be allowed him at the next day , but neuer after , whether he were essoyned before or not .

Mar. cap. 19. None shall need to sweare to warrant his essoine .

Westm 1. cap. 43. The demaundant may auer against an essoyne ( before Iustices ) of being beyond sea , that the Tenaunt was within the foure seas the day that hee was sommoned , and three weekes after .

Westm 2. cap. 17. In an essoyne De malo lecti , the demaundant may auer by enquest that the Tenant is not sicke , nor in such plight but he may come before the Iustices . Such an essoine shall not lye in a Writ of right betweene two claiming by one descent .

5. E. 3. cap. 7. Essoyne of the Kings seruice , nor protection shall not bee allowed in writs of attaint .

12. E. 2. Stat. of essoines . See many perticular cases where essoynes lye not .

CHAP. 42.

Of Continuance .

COntinuance is from day to day till the end of the suite , else (a) (a) 24. E. 3. 48. 11. H. 7. 5. if the Plaintife do nothing , it is called a discontinuance : if any errour bee in the continuing , as by awarding a Capias where ● distresse should bee , it is called a miscontinuance .

Statutes .

21. H. 3. De anno Bissextili . The day increasing in the leape yeare shall bee reckoned of the same moneth wherein it groweth , and that and the day going before shall be accounted for one day .

51. H. 3 Dies communes in Banco . Dayes shall bee giuen in writs nine returnes , as comming in Michalmas terme , from Octab. Mich. to Octab. Hillarij , &c.

51. H. 3. Dies communes in Banco , and 32 : H. 8. cap. 21 Common dayes shall be giuen in reall actions nine returnes . In writs of dower v. returnes .

Marleb . cap. 12. In dower vn de nihil habet , foure or sixe dayes shall be giuen in the yeare .

In Assises of Darrein presentment and Quare impedit , from xv . to xv . dayes , or from ● . weekes to 3. weekes , as the place shall be neere or farre .

5 E 3 cap. 6. and 7. In an attaint v. dayes shall be giuen at the least .

The suite of an excommunicate person shall be put without day , terme paroll 〈◊〉 3. H. 6. 40. Litlet . Iour till he be absolued And so is it in all ●ther cases which happen without the Plaintifes folly , as by the demise of the King ( so we call the death of the King , because in Law hee neuer dieth , but leaueth his Crowne to another ) non venunt . of the Iustices , cessor of the eyer , protection , &c.

Statutes .

1. E. 6. cap. 7. By the death of the King no action , suit , bill , or plaint shall bee discontinued , or put without day . But the processe pleas ; demurrers , continuances , shal stand good , and be prosecuted in such manner and forme as if the same King had liued . After continuance taken , the defendant may for once leaue his former plea , & plead any thing growing since this latter continuance , which wee call a plea puis darrein continuance . As if the defendant in an action of account plead receit of parcell by the 21. E. 3. 49. plaintife who wageth his Law : now at the day which the plaintife hath to performe his law , the defendant may plead a release puis dairein continuance .

Continuance is by processe , or vpon the Roll. That vpon the Roll is a Dies datus , 21. E. 4. 16. 7. H. 6. 39. 41. Br. defaut 34. or Emparlance . Dies datus when the Court giueth the parties day , and therfore in a personall action the defendant shall not bee condemned by default after such a continuance : for it is the act of the Court , and he doth not demand day as vpon an Emparlance , ● this is alwaies before the Count. 18. H. 8. 6. 41. E. 3. 1.

Such a continuance by assent of both the parties is called a Praece partium . So as if the defendant come vpon the exigent Br. Contin. 14. by a reddit se , and be by mainprise , yet the plaintefe may haue day by prece partium , notwithstanding that thereby the defendant shall be let out of ward , fot it is by assent of the parties .

But in assises the continuance is by a Iusticiarij nondum auisantur , and not by a Dies 22. H. 6. 12. datus .

Emparlance is when the defendant demandeth day to see if he may end the matter 7. H. 6. ibid. without further suite , which he may do once , but not oftner without the plaintifes consent : and is alwayes after the Court. After which he cannot plead to the Iurisdiction , person , or in abatement either of 18. H. 8. 6. the Count or writ . For (a) (a) 22. H. 6. 7. after emparlance a Supersedeas of priuiledge out of the Chancerie shall not be allowed : he cannot plead that the land is within the fiue ( b ) ports or ( c ) antient demesn , &c. or that the Pl is a villein , or (d) (d) 4. H. 6. 67. 16. E. 44. 32. H. 6. 33. outlawry in the Plaintife in debt vpon a simple contract , or in trespasse of batterie , or false imprisonment . ( But in debt vpon an obligation he may , for that is to the action , inasmuch as the King is to haue the debt ) or that the plaintife is an alien , viz to the person in an action of trespasse 13. H. 7. 17. to his house broken downe , but to the action he may : Nor misnomer as no such Towne of D. where he is named I. S. of D. But where a praecipe quod reddat is brought of the mannor of D. in D. there he may , for 32. H. 6. 27. there it is in barre , or in an action of debt against an Executor that he is an administrator and not an executor . But that he neuer was executor , neuer administred as executor he may , for that is to the action , nor demand oyer of the obligation , or such like , 4. H. 7. 10. but he may plead variance after , and so come to haue a view of the Obligation and Condition thereof , whereby to plead any matter in barre .

But after a speciall empariance , Saluis 4. H 6. 67. Br , Contin. 6. omnibus aduantagijs , hee may plead to the Count or writ and haue oyer , but yet not in that case plead to the Iurisdiction or person .

In an appeale of Robberie , or such like , 22. E. 4. 1● . that toucheth life , if the defendant plead a plea whereby his life should come in ieoperdie , the Plaintife shall not empatle vnto it , but must answer Sedente curia .

Default after emparlance , that is , at the day giuen by the emparlance is peremptorie , and loseth the action in all actions whatsoeuer , 38. H. 6. 33. 1. H. 7. 11. Br. defaut 34. 39. H 6. 16. 38. H. 6. 33. real or personal , for it is a departure in despight of the Court. As in debt , trespasse , or such like , the Plaintife in this case shall recouer his damages in a praecipe quod reddat , if the Tenant appeare and emparle , and after make default , seisin of the land shall be awarded , and not a petit cape . In a writ of right if the tenant vouch , and the vouchee enter into the warrantie and emparle , and after make default , the demaundant shall recouer seisin of the land against the tenant , and the tenant ouer in value against the vouchee .

CHAP. 43.

Of Mesne ; Iudiciall processe .

IVdiciall Processe is a Processe out of that Court where the original is returned , prosecuting the action . And therefore vpon an originall returned ●arde , an alias and pluries shall go out of the same 22. Eli. Dy. Court Teste the chiefe Iustice , for by the returne the Court is possessed . But if no returne at all bee made , the alias and pluries shall go out of the Chancerie , Teste Regem . This must be sealed with a seale Iudiciall , being in the custodie of the chiefe Iustice of that Court.

Iudiciall processe are mesne processe ●● in nature of new originals .

Mesne processe which is for any necessarie act to be done , not onely for the plaintife against the defendant , but for either of them against any other , whose presence in the Court may be necessarie for them . As against one that is vouched or praied in aide 1. H. 6. 4. of . So against Iuries , witnesses , &c. So to execute iudgements giuen , or any thing else necessarie for the triall of any of their allegations .

Vpon a fine leuied before it be engrossed the writs to compell atturnement are per Old N B. 171. quae Seruicia , when the fine is leuied of a Old N. B. 170. seigniorie .

Quem redditum reddit , when it is of a Old N. B. 170. rent charge or rent secke .

Quid iuris clamat , when it is of a remainder or reuersion . Old . N. B. 168.

Statutes .

23. Eliz. cap. 3. Plie entrie of record of an Atturnement vpon a fine shal be vtterly void , except the partie ( mentioned to atturne ) first haue appeared in Court in person , or by atturny warranted by the hand of one of the Iustices of one Bench or other , or of one Iustice of assise , vpon a writ of Quid iuris clamat , qu●m redditum reddit , or per quae seruicia , as the case requireth .

In petitions whether in Parliament or Stam. praer. 73. elsewhere , and though the king haue granted the lands ouer , or wheresoeuer the king being made partie , may be at losse : as when he is prayed in aide of , in a praecipe quod reddat , or other reall action against his lessee , but not in (b) (b) 27. H. 8. 28. trespasse (c) (c) 15. Dy. 320. Eiectione firme , or other (d) (d) 27. H. 8. ibid. personall action , for there he is to lose nothing . A writ of search lyeth , which is to search in the Tresury before the plea proceed , if by likelyhood some matter may be there to maintaine his title . As vpon finding by office that A. died seised ( of certaine land holden of the King ) without heire , and a trauerse put in that A. held not of the king . But if one come and say that A. had issue B. who enfeoffed him , there no search shall be , for no matter can be in the tresorie to proue whether A. had issue , no more if the kings title be by an alienation in mortmain .

Statutes .

14. E 3. cap. 14. In a petition and search granted after foure writs , whether any imminent or remembrance bee found for the King , or nor , the partie shall be put to answer . So as euery of the foure writs be deliuered to the Tresorer and Chamberleins xl . dayes before the day of the returne .

In reall praecipes where a freehold is to 38. H. 6. 33. 8. E. 44. for the Demurrer 38. H. 6. ibid. be recouered vpon default , after plea issue or demurrer a petie Cape shall goe foorth in the nature of a grand Cape in all things , saue that here the tenant is to answer to the default onely , not to the demand also , as in a grand Cape And therefore it is called a pety Cape , and the other a grand Cape , because there is lesse in the one then in the other .

So vpon a voucher a petit cape advale●● ciam . In those that are for other hereditaments , Old N. B. 179. not in point of seigniorie , as (a) (a) 2. H. 4. annuitie , (b) (b) ●● . H 4. 1. Quare impedit , Quo iure , (d) (d) 30 H. 6. 8. quod perm●itat , &c. vpon default as before , a distresse ( c ) Old N B. 71. shall goe forth in liew of a petit Cape . And both there , and vpon view granted , day shall be giuen as in a plea of land , for it 30. H. 6. ibid. is in the nature of a praecipe quod reddat , in as much as hereby he is to recouer the land it selfe .

The Processe against Iurors is first a Venire facias to the Sherife to returne Old N. Br. 171. them , at which day if they appeare not , then a habeas corpora .

And after that a distresse infinite .

Statutes .

27. Eliz. cap. 7. No Iuror shall bee returned without the true addition of the place of his dwelling at the time of the returne , or a yeare before , or some other addition whereby hee might bee knowne , nor no estreet shall be without such addition as is in the returne .

35. H 8. cap. 6. In euery Habeas corpora or distringas with a Nisi prius at the first writ , v. s. at the least shall bee returned in issues vpon euerie Iuror , at the second , x. s. at the least , at the third xiij . s. iiij . d ▪ and euer afterwards the double of xiij . s. iiij . d.

2. G. 6. cap. 32 If the principall Iurie appeare not fully at the nisi prius , those that make default , shall forfeit their issues , though the Iurie be made vp de circumstantibus .

where in personall actions vpon the defendants default , the Iurie shall be taken , which wee call taking of the Iurie by default : In an action of trespasse alwayes (a) (a) Br. defaut 58. whatsoeuer the issue be , (b) (b) 34. H. 6. 24. 2. H. 4. Br. enq de dam. 11. release , (c) (c) 9. H. 5. 15. Iustification , &c. So in (d) (d) 5. E. 4. 6. 1. H. 7. 1. debt , detinue , account , & the rest which are for things in certaintie if the issue be taken vpon a matter en fait onely , as (e) (e) 1. H. 7. 1. payment , or that an (f) (f) 9. H. 5. 13. 42. E. 3. 1. acquittance pleaded in barre by the defendant , was made by dures . But if it be vpon the acquittance it selfe , release or other matter in writing , the plaintife may there pray iudgement if he will . But if he do not pray it , the Iurie shall be taken by default , as in an action of trespasse .

But in assises of nouell disseisin , nusance , mortdancestor , darrein presentment , and Iuris vtrum , the original writ commandeth The forme of all these writs . ( h ) Old N. B. 106. in an assise of nouell disseisin , and 25. in darrein presentment . a Iurie , as well as the defendants , to be warned , which Sommons to the Iurie , serueth in stead of a venire facias . So that the processe here against the Iurie is , Somon' habeas corpora & Distringas .

And therefore there vpon default after that originall processe ended , viz. the Atachment in an assise of nouell disseisin and nusance , the sommons and resommons in a (i) (i) F. N. B. 196. g mortdancestor , darrein presentment , and (k) (k) F. N. B. 50. k. Iuris vtrum , the enquest shall bee taken by default , whether the default be presently after the resummons or after essoine , or plea pleaded . As it should bee taken if the Tenant did appeare .

CHAP. 44.

Of Iudiciall processe in the nature of new Originals .

IVdiciall processe in the nature of new 17. E. 3. 76. originals ( in none of which any freehold shall euer be recouered ) but damages onely , are these that follow . First such as command to doe some thing As ,

1. Resommons or Reattachment , according as a Sommons or attachment lay in 5. H. 7. 40. the first action , to receiue in the former plight a suite put without day . And may either reuiue the originall alone , or the whole proceeding by special words , in that Resommons or attachment , as if it bee against the tenant after a voucher ; the voucher is not receiued , vnlesse special mention be of the vouchee also , nor any plea at all is reuiued but the originall onely . But in euery Resommons after an issue , the issue is reuiued , for day is giuen to the Iurors expresly ; So is all the pleading by a speciall resommons . But no such resommons nor re●ttachment shal be vpon a discontinuance , 24. E. 3. 48. Br. res●●● . 33. ●hough it be in a writ of ward , where a re●ommons is giuen by the Statute , for vpon ● discontinuance the originall is deter●ined .

2. All certificatorie writs , as if in a F. N. B. 14. writ of right close brought in antient demesne the tenant vouch a foreyner to warrantie , and after purchase a Warrantia chartae returnable in the Common place against the vouchee , and thereupon a Supersedeat to the Baylife in antient demesne Now if the plea of Warrantia chartae bee determined or discontinued in the Common place , the demaundant in the writ of right close may sue a writ out of the Chancerie , directed to the Iustices of the Common place , to certifie the King in his Chancerie of it . To the end that if it bee so , the Baylife in antient demesne may proceed . So vpon a Monstrauerunt F. N. B. 16. c. sued against the Lord in antient demesne , and an attachment thereupon , because he shall not bee driuen to answer to the attachment till the Court be a serteyned whether the lands be antient demesne , o● no : the Plaintifes in the Monstrauerunt must sue a speciall Writ to the Tresurer , and Chamberlayns of the Exchequer to certifie it . In like sort vpon an Indicauit purchased , F. N. B. 52. because the tythes amount to the fourth part of the value of the Church , the other may haue the Kings Writ directed to the Bishop to certifie the King in the Chancery of the value of the Church , to the end that if it amount not to that value , he may ha●● a Consultation . So vpon surmise made i● F. N. B. 59. b. the Chancerie , that the Kings Comitee of ● ward hath done wast , a writ shall go fort● to the Eschetor to certifie the King thereof ●nd so in all other like cases .

3. Cerciorare to remoue a record out of 36. H. 8. Br. Cercior. 20. Court of record into the Chancerie , for ● record shall be remoued into the Com●on place , nor no enditement taken in the ●untrey into the Kings Bench imediatly ● any Certiorare , but first it must be certi●d into the Chancerie by a surmise , and ●m thence sent into the Common place , ● Kings Bench , as the case is , by a Mitti● . 12. E. 4. 11. And euery writ of error is a Certiorare ●t selfe .

4. To remoue suits out of Court Ba●s , for a Recordare , Pone , or such like , are ●no other entent but onely to remooue 3. H. 6. 3. ●ewhat into the Kings Court , and are in ● nature of a Certiorare . And vpon the re●uethe recordare or pone is determined , for ● plea shall not be holden vpon them , but ●n the plaint that is remooued , and the ●t pledges shall stand . And these may be ●thout shewing any cause in the writ , if ● remoue be at the Plaintifes suite : but ● without shewing good cause in the ●it if it be at the Defendants suite . As ●ng to remoue a plea in a writ of right to Fitz. N. B. 4 ▪ b. ●w that the Baylife is heire to the land , or ●eth vpon him to maintaine the matter haue part of the land , or that the Te●t hath alledged bastardy , or pleaded a ●reine plea , or ioyned the mise vpon the ●nd assise , &c. being to remoue a plea in Fit . N. B. 70. b. ●pleuin by plaint , to shew that the de●dant auoweth for damage feasant , and the Plaintife iustifieth by reason of C●●mon of pasture , which is a plea touc●● freehold , and therefore should not be w●● out writ .

These are either to remooue pleas ● writ , or by plaint without writ , Of the ●● sort are a Tolt and Pone .

Tolt or Tollas is for the plaintife , but ●●uer Old N. B. 2. Fit . N. B. 4. a. for the Tenant , to remooue a writ ● right out of the Lords Court into ●● Countie Court . And because this being ● Old N. B. Ibid. the plaintifes suite may bee without ●● cause , therefore this clause is put in eue●● writ of right patent , Et nisi feceris vice c 〈…〉 faciat . Pone is to remoue into the Co 〈…〉 place in all other cases , viz. (b) (b) F. N. B. 4. b c. saue on●● in the case of a writ of right to be remo●● out of the Lords Court into the Cou●● Court . As (c) (c) F. N. B ibid. writs of right remoued i●● the Countie Court by a Tolt , (d) (d) F. N B. 125. f. In admeas . of pasture . Iusticies ●● Vicontiel writs in the Countie Court , repl●uins by Writ either (e) (e) F. N. B. 69. ●n . there or (f) (f) F. N. B. 70. a. in a●● other Court Baron . And all this indiffer●●ly , (g) (g) F. N. B. 69 m. & 70 a in a repleu . & 125. f. in Admeas of pasture . Old N. B. 2. in a writ of right . either at the plaintifes or at the d●fendants suite . So vpon a (h) (h) F. N B. 77. ● . Natiue 〈◊〉 sued in the County , if the defendant alled●● himselfe franke , the Lord is driuen to ●●moue it by a pone . But a pone to remo●● repleuin by writ out of any other Co●● Baron then the Countie Court cannot ●● without shewing cause , though it be at t●● plaintifes suite .

Of the second sort are a Recordare , ●● 3. H. 6 30. Accedas ad Curiam . In both which noth●● ●t the plaint shall be remoued , (a) (a) F. N. B. ibid. though ●ey be at issue .

Recordare (b) (b) F. N. B. 70. b. is to remooue plaints in ●ountie Courts . Euery (c) (c) F. N. B. 18. a. b Writ of false ●dgement vpon a iudgement giuen in the ●ountie Court is a Recordare in it selfe .

Accedas ad curia , is to remoue plaints in F. N. Br. 70. b. & 18. d. ●y other Court Baron (e) (e) F. N. B. 18. d. Euery Writ of ●se iudgement vpon a iudgement giuen ● any other Court Baron then the County ●ourt , is an Accedas ad curiam in it selfe .

This also vpon good cause shewed in ●e writ , lyeth for the tenant to remoue the F. Nat. Br. 4 a. ●a in a Writ of right out of the Lords ●ourt immediatly into the Common ●ce .

5. Mittimus to send a Record out of the ●hancerie , whether being certified thither ●fore by a Certiorare , or howsoeuer else be●g there , into another Court of Record , to ●e end they may proceed vpon it . But the ●hancellour may send such a Record by F. N. B. 22. g. ● owne hands , without any Mittimus , if please him .

6. Procedendo to proceed in suits . As if F. N. B. 3. c. ●e Lord vpon a writ of right sued in his ●ourt wil not hold his Court , the demaun●nt may haue this writ vnto him , if a man F N. B. 17. ● . ●use himselfe to be essoyned of the Kings ●uice in any action where indeed he is not ● his seruice , the Plaintife or demaundant ●y haue this writ directed to the Iustices ●mmanding them to proceed . So where F. N. B. 24. ●e Iustices in any Court delay the Pl or the defendant , and will not giue iudgeme● for him where they ought to do it , the p●●tie grieued shall haue a procedendo ad I●dicium .

Of this nature is a writ of consultati●● to proceed in the spirituall Court , wh●● Old N. B. 32. one suing there for matters belonging ●● that Court , as for matters testamentarie , ●● concerning matrimonie , &c. is by a prohibition restrained to prosecute the suit .

Statutes .

24. E. 1. De consultacione . A consultation to be awarded by the Chancellour ● chiefe Iustice of the King , vpon sight of the libell at the instance of the Plaintife .

50. E. 3. cap. 4. Vpon a consultation 〈◊〉 duely granted , the Ecclesiastical Iudge may proceed in the same cause notwithstanding any other prohibition . So the matter of the libell be not enlarged , nor otherwise cha●ged .

7. At writ of mainprise to set at liber●● one baileable finding baile , that is to say , sufficient persons to bee bound for him ●● F. N B. 249 g. suretie to answer the action , which in respect of deliuering him into the hands ●● his frendes the sureties , is called Baile , i● respect of their taking of him is calle● mainprise .

Such persons baileable bee they wh●●● 4. E. 6. Pl. 67. are taken vpon a Capias originall .

But not the defendant in (a) (a) 6. H , v. 1. c. Appeale of Mayme , if the Mayme bee haynous : nor ( b ) West 1. ca. 15. Stamf. 71. & 72 In case of the death of a man . the principall in an enditement , or appeale of Felome , (c) (c) Stamf. ibid. nor the accessarie after attainder of the principal , (d) (d) Div. of courts fol. nor any in high treason , where all be principals .

Statutes .

Westm. 1. Cap. 15. Such as are accused of receit of felons of commandement , or force , or of aid in felonie done , and a man appealed by approuer , after the death of the prouer ( if he be no common theefe , or defamed ) shal be let out of prison by a surety .

8 Recaption is for him whose goods being distreyned before for rent or seruices , but F. N. B. 71. c. Fit . ibid. not for dammage fesaunt : for there as oft as they are so found vpon ones land , it is lawfull to distreyne them . For eury time is a new wrong , and a new trespasse , are Fit . ib. 72 g. Fi. ib. 72. c & 71. ● distreyned againe for the same thing , hanging the plea in the Countie Court , or before the justices . Though the first distresse were lawfull , and though the rent or seruice were behind againe , or not : for by the first distresse he shall haue a Returne til he be satisfied of all . And here the goods distreyned , must be the same parties goods . Fit . ib. 71. b. Fit . ib. 71. i. For if the Lord first distreyned his tenant , and after the beasts of a strager , no Recaption lyeth . But vpon a distresse of two mens beasts first , and after of the beasts of one , it lyeth for that one : so vpon a distresse Fit . ib. 71. e. Fit . ib. 71. f. of beasts which a man hath in common with another , and after of such beasts as are his owne alone . Also he that taketh the second distresse must bee the same partie that distrained first : as if the Lord distrained first , and then his seruant or Bailife distreineth againe by his commandement , or without his commandement , if he agree afterwards to it , as by ioining with his seruant or Bailif when they pray in aid of him . Otherwise not , though the Bailife make conisance in his right : for it may be he hath no notice of it , and the partie hath remedie against the baily by an action of Trespasse . But this writ lieth not Fit . ib ▪ 72. d. after Non suits in the repleuin ; because there the plea is not hanging : but before auowrie in the Repleuin it doth , for the plaintif in the recaption may well count that the defendant tooke them for the same cause : And that may make a good issue , which the inquest may take notice of wel enough by the euidence of the parties . But vpon a Fit . ib. 73. e. Repleuin sued by plaint or writ in a Franchise , and not before the sherif or the kings Iustices , no recaption lieth , though he bee distrayned by the same partie againe , and for the same cause , for the King will not direct this writ but to the Sherife . But if the suit be remoued before the Iustices by a Pone or Recordare , there a Recaption lieth as well for a distresse before the Pone or Recordare , as afterwards . And here the plaintife shall recouer dammages for the second taking onely , because it is a contempt against Law , for which the defendant shal be fined if he be conuict before the justices , or amereed , if the conuiction be before the sherife , but shall recouer no dammages for the taking nor the detaining of the beasts . And therefore here the defendant shall not make auowrie , as he should in a Repleuin , but onely may iustifie the taking , as in an action of Trespasse .

9 A writ De magna assisa eligenda to the sherife , to summon foure knights to choose Fit . N. B. 4. ● . the grand Assise , when the mise is ioyned thereupon in a writ of Right .

And this is a méere iudiciall Writ issuing out of the Common place when the plea hangeth there . But when the plea is in the Lords Court , or in the County Court , then it is an originall writ out of the chancerie .

10 A Certificate De Assise vpon a verdict 7. E. 6. Pl. 85. giuen in an assise that is no perfect , whether not well examined by the Iustiees , or not fully inquired of by the Iurie , to bring in the same Iurors to giue a more perfect one . And this must be sued in the same countie where the assise was sued , and may bee F. N. Br. 181. ● as well before other justices , as those that took the assise : if the kings Bench , or common place be in the countie where the Assise passed , then this writ may be sued there . And beside the writ it selfe directed to the Fit . ibid. d. sherife , the Iustices must haue a patent made vnto them as in the assise it selfe .

11 Proprietate Probanda vnto the Sherife to inquire whether the property bee to the plaintif or defendant , when vpon a repleuin F. N. B. 77. c. 2. El. Dy. 173. sued , the defendant claimeth propertie , which determineth the sherifes power to make Repleuin .

And this also may be meere iudiciall issuing out of the Kings bench (a) (a) 1. E. 4. 9. or common 2. El ib. place , (b) (b) 2. El. ib. and returnable there .

Secondly hither belong those that be prohibitorie , or restraine from doing somthing where the prohibition it selfe is in lieu of a Summons . And after that , the proces is an atachment and distresse . So in euerie writ which is vpon a prohibition broken , F. N B. 163. d. Old N. B. 30. Old N. B. 28. as a quare non admisit , quare incumbrauit : for euery breach of a prohibition is a contempt in it selfe .

Of this sort are

1 Prohibitions to restraine the party from suing in an inferior court , that ought not to hold plea of it : as in the spirituall court , for (a) (a) Old N. B 30. any plea that concerneth not matrimonie & wills , as for goods or debts , &c. and (b) (b) 22. E. 4 ▪ cons. 2 though it be of matters for which the plaintifs haue no remedy by the common Law , as of a couenant broken without specialtie , or debt , &c. against executors vpon a simple Contract made by their Testatour . Or Pro laes●●ne fidei against one which hath waged his law in an action of debt vpon a simple contract 19. H. 6 Old N. B. 31. F. N B. Ph. and sworne falsely . So if the Baylife in a Court baron hold plea of matter aboue xl . s. the defendant may haue a prohibition . And these prohibitions may be directed to the Iudge himself , not to hold plea in those cases , as well as to the Sherife , to restraine the partie from suing .

Such a prohibition is an Indicauit for the Defendants patron when the right of auowson of any part of ones tythes is in demaund in the spirituall Court , betweene two Clarkes claiming from seuerall patrons . So as the Indicauit is alwayes betweene 12. E. 4. 13. foure persons , whereof two are patrons , and the other two Clarkes . One claiming to hold of the auowson of one patron , the other of the other patron , for an auowson being a lay hereditament , wheresoeuer the patronage should come in question the Common Law is to decide it : But where that is not to come in question , the Fit . N. B. 36. spiritual court shal decide it , by suit in that Court called spoliation . As a person accepting another benefice , or created a Bishop , and hauing a dispensation to keepe his personage , shall haue a spoliation in Court Christian against another Incumbent presented by the patron , and then shall come in debate whether they haue pluralitie or dispensation , or no.

And this Indicauit lyeth though it bee 38. H. 6. 20. but the right of the twentieth or thirtieth part of tythes that is in demaund , for at the Common Law the Court Christian had no power to hold plea of any part of dismes , but a prohibition lay till the Statute of Westm. 2. cap. 5. which will haue an Indicauit to be of tythes to the value of the fourth part of the Church at the least . But before that , it might haue beene of the xx . part , and the patron thereupon might had a writ of right , wherupon at the Common law there was a writ of the auowson of the tythes of v. acres or x. acres , or one acre . But now since by the same Statute an Indicauit shall not be granted of lesse then the fourth part , therefore there is a writ of the auowson of the tythes of the fourth or third part . But at the Common Law there was no such writ .

Statutes .

Westm 2. cap 5. When the Parson of any Church is disturbed to demand tythes in the next parish by a writ of Indicauit , the patron of the parson so disturbed shall haue a writ to demand the auowson of those tythes . And after the plea deraigned in the Kings Court , then it shall proceed in the Court Christien .

18. E. 3 cap. 7. pro clero & cap. 47. Writs of Scire facias to answer of dismes in the Chancerie , and to shew why such dismes ought not to be restored the demaundants shall not from henceforth be granted . Sauing the Kings right as hee and his ance stors were wont to haue

2. A Supersedeas to stay any further proceeding in the suite . As if a writ of trespasse F. N. B. 239. d. F. N. Br. 13. g. vi & armis be brought in a Court Baron , if vpon a writ of right close brought in antient demesne , the demaundant and tenant put themselues vpon the grand assise , or the Tenant vouch a forreyner , or plea a forrein plea which cannot be tried there , if a Clark of the Chancerie or any of the seruants of F. N. B. 4 〈…〉 the Chancellor , or Lord keeper of the great seale bee sued in any other place for a trespasse , or other matter .

Of this nature are , a writ of peace for the Tenant vpon a writ of right brought in the Lords Court , vouching one to warrantie out of the power of that Court , we 13. E. 3 vouch 269 c. E. 1. droit 45. call it a forreine voucher , or ioyning the mise vpon the grand assise to haue the matter c. E. 1. ibid. respited till the Iustices in Eyer come thither . Which if he bring not at the next Court day , after such voucher or mise ioyned , he loseth his tenancie , the reason is , because the Lord cannot make a grand assise to come . But if battaile be ioyned , that shall c. E. 1. ibid. be determined there , and after such a writ brought the plea may proceed by leaue of the Iustices . As if the vouchee come before them and enter into warrantie , they may award that he shall go to the Court of the Lord and there warrant to the partie that 13. E. 3. ibid. vouched him , and assigne a day certaine of the Court , and also giue leaue and power to the Lord to hold his Court.

De libertate probanda for the Defendant vpon a Natiuo habendo sued in the County , F. N. B. 77. f. claiming to be franke to the Sherife to adiourne the plea before the Iustices in Ei●r . And therefore must be brought before any Old N. B. 46. pone deliuered by the Lord to the Sherife to remoueit . And this is a Supersedeas to the Lord not to proceed til the day of adiournment , nor to cease the villein till the plea discussed .

Statutes .

25 E. 3. cap. 18. The Lord may seise the bodie of his villein , notwithstanding that a Writ . De libertate probanda be hanging .

Idemptitate nominis for one molested by a suite against another of the same name . As if he be taken by a Capias or Exigent awarded F. N. B. 267. e. against the other , or distreined by processe out of the Exchequer . And this Writ shall be either to the Escheator or Sherife according as he is vexed , or his goods taken by either of them , to surcease against him , or against his goods .

3. Protections cum clausula volumus when the King in respect of the Defendant being in his seruice taketh him , for the plaintife can neuer haue a protection for him , vnlesse it be in speciall causes where the plaintife F. N. B. 28. g. doth become defendant , into his protection for one yeare to bee free from all 39. H. 6. 38. suits .

Writs of dower , Quare impedit assises , Old N. B. 21. 39. H. 6. ibid. of nouell disseisin , and pleas before the Iustices in Eyer are accepted Therefore it shall for that time saue all defaults . So as 21. H. 6. 20. vpon a protection ( cast in a plea personell ) at the Nisi prius , and repealed at the day in Banke , yet the enquest shall not be taken by default , for the default was once saued . Otherwise it is of a protection disallowed at the day in Banke . And a man may excuse Fitz N. B. 29. b. 39 H. 6. ibid. his default at a Grand cape , or petit cape by casting of a protection . But a protection can indure no longer then for one yeare , for otherwise it might bee for xx . xxx . or C. yeares , and by the same reason for a thousand yeares , which were a great inconuenience and disherison to the partie . But a protection for one yeare is not so , for after the yeare ended he may haue a resommons and proceed in his suite : yet the King after the first yeare ended may take him againe into his protection for another yeare , though it be space of ten or twentie yeares together , for in that case appeareth at the first no mischiefe nor inconuenience , as there doth when he taketh him into his protection for so many yeares at once .

Statutes .

5. E. 3. cap. 7. No protection shall be allowed in writs of Attaint .

This kind of protection is double . Protectio 39. H. 6. 38. quia profecturus , when he is to goe beyond sea in the Kings businesse .

Protectio quia moratur , when he stayeth F. N. B. 28. ● . there about it . Of which nature is also a protection quia in prisona , when being sent beyond Sea in the Kings warres hee is there taken and detained in prison . The going or staying about the Kings businesse in F. N. B. 28. g. 39. H. 6. 39. the marches of Scotland , or such like places is counted as beyond Sea . But a protection quia moratur super altum mare , is not good , for it cannot bee entended that hee doth abide there .

Statutes .

13. Ric. 2. cap. 6. A protection in respect of going beyond Sea disallowed ( except it be in voyage Royall , or businesse of the Realme ) where it beareth date after the suit commenced . And the Lord Chancellour hath authoritie to repeale it , if he go not in conuenient time , when he returneth .

A Statute of protection , 33. E. 1. Auerment is giuen against petition for the kings seruice .

1. Ric. 2. cap. 8. Protection ( volumus ) not allowable for victuall taken or brought vpon the voyage or seruice , whereof the protection maketh mention , nor in trespasses and other contracts made after the date of the same protection .

Prerogatiue .

The King may take his creditor into F. N. B. 28. b. his protection , that no other creditor shall sue or atrest him , till the King bee satisfied , which is also a protection cum clausa volumus .

Statutes .

25. E. 3. cap 19. A Creditor shall haue an action and iudgement against the kings debtor , notwithstanding such a protection . But not execution , vnlesse he take vpon him to pay the king , & then he shall haue iudgement and execution of both debts , as well of that due to the King as to himselfe .

He may also by a writ called Warrantia diei , rehearsing that one which should appeare F. N. B. 17. in proper person , whether it bee the plaintife or defendant , is in his seruice , wil that for one day no default be recorded vpon him . So as if the tenant in a praecipe quod reddat make default at the grand Cape , or petit cape : yet before Iudgement vpon that default , the King by his writ may make that it shal not hurt him . And this standeth with reason , because euery man is bound to serue the King in his affaires . Neither is it material whether he be in the Kings seruice or not , when the King certifieth that he is : for it seemeth by the words of the writ , that the King by his prerogatiue may for one day warrant his default . And this writ cannot be granted but by the king himselfe .

4. Essoyne de malo lecti , is a writ to warrant 19. H. 6. 57. an essoyne of lying sicke a bed cast by the Tenant in a writ of right : Commanding foure Knights to see him , and if he be sicke to giue him day at the end of the year , and the day for so long adiournment is in that essoine .

Statutes .

Westm 2. cap. 17. In an Essoine De malo lecti the demaundant may auerre by enquest , that the Tenant is not sicke , nor in such plight but that hee may come before the Iustices . Such an essoine shall not lye in a writ of right betweene two claiming by one descent .

5. A Ne admittas for either partie , plaintife or defendant , in a quare impedit , or assise , F. N. B. 37. f. of darrein presentment to the ordinarie , not to admit the others Clarke till the matter be discussed .

And this must be sued within 6. moneths and not after , for after the sixe monethes it F. N. B. ibid. is lawfull for the ordenarie to present by laps , but being sued within the six moneths the ordenarie may neither himselfe (b) (b) F. N B. 48 l. collate within six moneths ( but afterwards by laps he may ) nor (c) (c) Fit . ibid. admit the others Clark at any time , (d) (d) F. N. B. 48. b. though it be after the sixe moneths , and though it be found for him by a Iure patronatus , which is a commission that the ordenarie may grant to enquire who is the right patron .

6. A quare incumbrauit for him that sueth F N B , 48. c. a Ne admittas , and after recouereth , in a Quare impedit , or assise of darrein presentment , though it be after the sixe monethes , but before recouerie no quare incumbrauit lyeth against the ordenarie for incombring the Church , contrarie to the ne admittas . But of a collation or admittance before a F. N B. 48. b. ne admittas sued , no quare incumbrauit ( but onely a quare impedit ) lyeth , for the ordinarie can haue no notice till the ne admittas .

But no ne admittas , nor quare incumbrauit lieth in a writ of right of auowson , though F. N. B. 48 q. the Church become void hanging the writ , and the Bishop do encomber it , for the demaundant there shall not recouer the presentment but the auowson . And if he haue title to present , hee may present , and vpon disturbance haue a quare impedit .

CHAP. 45.

Of Iudgements .

THus farre of Suit . Iudgement 10. El. Dy. 26. 8. The writ of false Iudgement shall be Recordare fac . loquelam quae fuit in eadem curta and not quae est , for by the iudgement loquela is determined . 10. E. 3. Stam. praer. 78. is the Courts finall determination of that suit .

Vpon Iudgement against the King in a petition , hee is presently out of possession . And therfore euery Iudgement is in it selfe a moueas manu , or an ouster lemaine In a writ of right the Iudgement after issue ioyned is finall on either side , not onely when it passeth by verdict , or vanquishing of the others Champion , but where the demandant is (c) (c) F. N. B. 6. 3. Eli Dy. 301. non suit , or the (d) (d) F. N B. 6. Tenant maketh default , or the (e) (e) 26. H. 8. 8. F. N. B. 31. d. vouchee after such an issue ioyned by him , departeth in despite of the Court , &c.

Prerogatiue .

Against the King Iudgement is not finall , but is alwayes with a Saluo iure Regis .

Recoueries in a writ of right bind all 5. E. 3. 50. strangers not claiming within the yeare . As being suffered by a disseisor , it bindeth the disseisee by his non clayme . Tenant for life suffering a wrongfull recouerie , it shall preiudice his right that hath the inheritance , though he be prayed in aid and make 34. H. 6. 2. 4. H. 7. 3. default . for no aide prayer is there necessarie , in as much as the other being tenant of the freehold , a recouerie is good against him But that after the death of Tenant 24 H. 8. Br. fau . reco. 41. for life , hee may falsifie it by action of Ad terminum qui preterijt , or writ of right which we call falsifying of recoueries . But he cannot enter , (a) (a) 26. H. 8. 2. neither can lessee for yeares at the Common Law falsifie for hauing but a Chattell deriued out of a freehold , there is no reason hee should falsifie a recouerie which draweth the fee simple out of the lessor . Also the present estate vpon which the lease depends being destroyed , the lease must needs be extinct .

Statutes .

14. Eliz. cap. 8. Euerie fraudulent recouerie against any Tenant for life , or whereupon any tenant for life , or hee that hath right to estate for life is vouched , shall bee void against him in the reuersion , or in the remainder , vnlesse it be by his owne assent appearing by record .

21. H. 8. cap 15. Termors for yeares or in by execution of Statute staple , Statute Marchant , or Elegit , may falsifie recoueries onely for their owne Terme in such sort as Tenants of the freehold , neither partie nor prinie to the recouerie might at the Common Law .

In a Writ of dower by gardein in soccage Lit. 9. against gardein by Knight seruice , she shall at his prayer bee adiudged to endow her selfe wholly of the land in soccage . And this is called Dower de la plus beale . But such dower shall not bee where the woman is Park . 88. gardein en fait by knight seruice , nor where all the husbands lands were holden in soccage , and shee brings her writ of dower against the heire : nor where she brings it against her husbands feoffee with warranty , for he may vouch the heire .

A debt acknowledged in Court of Record either to the King or to a Common , is in the nature of a Iudgement , and called a Recognisance . And therefore such a matter acknowledged by an infant , cannot bee auoided but during his nonage onely . As a (a) (a) 18. E. 4. 13. fine by writ of error , a (b) (b) 7. El. Dy. 232. 18. E , 3. 5. Recognisance , Statute , or such like , by an Audita quaerela : for it shall be tried by inspection of the Court , whether hee were within age , or no.

In appeales of (c) (c) 41. E. 3. tres . 199 mayme , enditements or appeales of (d) (d) 40. E. 3. 42. felonie , the accessorie shal not be compelled to answer till attainder of (e) (e) 1. Mar. Pl. 99. 3. H. 7. 12. 4. E. 6. Br Cor. 185 all the principals , by verdict , outlawrie , or though it be by taking him to his Clergie , or abiuration So as if the principall die (f) (f) 21. H. 7. 31. or haue his (g) (g) 3 H. 7. 12. pardon before , or if two men be endited , one as principall , the other ( h ) 12. E. 3. Cor. 378. as accessarie , and the principall bee afterwards attainted of another felonie and hanged : the accessarie shall be discharged And (i) (i) 3. Mar. Dy. 120 if one of the principals bee not attainted , the Accessarie shall not recouer damages against the A bettor , for he is not legitimo modo acquietatus . But in case of high Treason all offendors are accounted principals , and there is no accessarie at all .

He that is or by possibilitie may be with in orders , for one being within orders ( if Stam. 133. he shew them , or the ordenarie certifie so much ) shall haue his Clergie , whether he can reade or no. Otherwise he must be able to reade a verse , namely , a Deacon at the least , may haue the benefit of his Clergie , saue him either from Iudgement when the Clergie is prayed before , or from execution if it be prayed after , if he be found culpable by verdict , or his owne (k) (k) Stam. 138. d. confession either before the Coroner , or the Iustices of any barre , felony , where life or member is to be lost , be it vpon an enditement or appeale , but (l) (l) Stam. 124. not for killing a man by misfortune , or se defendendo , nor yet for petie Larceny , for in these cases he is not to haue Iudgement of life or member . No more in case of high Treason , or petie Treason . And such a (m) (m) Stam. 130. ● . Clarke might indeed by the antient Law haue had his Clergie before hee were endited But now he shall not haue it vpon his arraignment , vnlesse he plead to the fe●onie and be found guiltie : for otherwise he should lose his goods by an enquest of office , to which he could haue no challenge ●s he may haue to this . But yet hee may waiue this benefit and pray his booke after ●he enquest , and before their comming ●acke . In which case notwithstanding , the ●erdict afterwards shall be taken And that ●s in fauorem vitae : because if the Iurie find ●im not guiltie , he shall be charged . And his possibilitie ( there beeing no other im●ediment ) as if it be a woman , a blind , or a ●aymed man , shal be tried by the Iudges . And therefore if the ordenarie challenge ●im , where he readeth not as a Clarke , he ●hall be fined and the partie hanged . Or if ●ee refuse him when hee doth reade as a Stam. 123. d. 9. E. 4. 28. Clarke , the ordenarie shal be fined , and the ●artie discharged , for the Court are Iudges ●f his reading . And the ordenarie is there onely to challenge him for his Clergie , for the entrie is , Legit vt Clericus ideo tra●tat●● 9. E 4. 28. ordinario , by his ablenesse to reade a verk , though he cannot reade without spelling . But if he can reade but here a word & there a word , and no three words together , quert whether that be sufficient .

Clergie is the deliuering of him to the ordenarie to be kept in prison .

If it bee before Iudgement , in which case we call him a Clarke conuict , hee shall Stam. 138. 6. be tried there by a Iurie of Clarkes . A●● therefore purging himselfe shall goe ●● large . Therefore is a writ to command the Stam. 138. ordinarie to admit him to his purgation . Not purging himselfe , but beeing found culpable by those Clarkes , he shall be onely degraded .

But vpon an appeale of Robberie , or such like , no purgation shall bee admitted . Stam. 139. b. The reason seemeth because then the plaintife in the appeale should recouer his goods without cause , when by the purgation it did appeare that the other was not guilty of the felonie .

A Clarke conuict shall not answer to any Stam. 108. offence committed before .

Prerogatiue .

A Clarke conuict forfeiteth his chattels : And shall neuer haue restitution , 5. E. 6. Br fo rs . 113 though he make purgation . Notice 〈◊〉 be giuen to the King of the time before the Stam. 138. partie make purgation . If the Clergie be after Iudgement , in which case wee call Stam. 138. ● . him a Clarke attaint , hee shall remaine in perpetuall prison .

Statutes .

25. H. 8 cap. 3. Reuiued . 5. E. 6 cap. 10. One arraigned vpon an enditement of pety Treason , wilfull burning of houses , murder , robberie , or other felonie , according to the meaning of the same Statute , if he stand mute of malice , or froward of mind , or challenge peremptorily aboue xx . or will not directly answer , shall lose his Clergie , in such manner as hee should if vpon the arraignment he had beene found guiltie .

25. E. 3. pro clero , cap. 4. Conuict of pety Treason shall haue it .

18. Eliz. cap. 6. None in felonious Rape , Rauishment , nor Burglarie .

18. Eliz. cap. 6. None in carnall abusing a woman within ten yeares of age .

25. H. 8. cap. 6. 5. Eliz. cap. 17. None in Buggerie .

5. E. 6. cap. 9. None for him that robbeth any person in any part of his dwelling house , booth , or Tent , in any Faire or Market , himselfe , his wife , children , or seruants then beeing there , or within the precinct thereof , either sleeping or awake .

4. & 5. Ph. & Ma. cap. 4. None for him that maliciously commandeth or hireth any to commit petie Treason , or wilful murder , or robberie , in any dwelling house , or in or neere any high way , or within the marches of England against Scotland ; or wilfully to burne any dwelling house , or any part thereof , or any Barne hauing corne therein .

25. H 8. cap. 3. & 5. E. 6. cap. 10. He that doth a robberie or burglarie in one Countie , and is taken with the goods so robbed or stolne , in another Countie , shall lose his Clergie there , as he should doe where the robberie or burglarie was committed .

4. H. 7. cap. 13. 1. E. 6 cap 12. Grantable but once to one person , except he be within orders .

4. H. 7. cap. 13. He that asketh his Clergy the second time shall at a day certaine bring his letters of order , or a certificate .

4 H. 7. cap. 13. He that hath his Clergie shall be marked in the hand , with an M. if he were conuict of murder , with a T. if he were conuict of other felonie .

1 E. 6. cap. 12. Lords of the Parliament in all cases where Clergie lyeth at the common Law , or is restrained by Statute , shall vpon his prayer bee adiudged as a Clarke conuict , though he cannot reade .

8. Eliz. ca. 4. & 18. Eliz. ca 7. After purgation he shall be put to answer to any such offence ( committed before his admission to the Clergie ) whereupon Clergie is not allowable , and whereof hee was not before endited and acquited , conuicted or attainted , or pardoned , and shall be demeaned in all things , as if he had neuer beene admitted to his Clergie .

18. Eliz. cap 7. He that is allowed Clergie shall not be deliuered to the ordenarie , but after burning in the hand shall be deliuered forthwith by the Iustices out of prison : yet for further correction , they may detaine him in prison , so that it be not a boue a yeare .

Outlawry is a Iudgement , which in case of criminall offences wee call an Attainder in it selfe . So as hee which is endited of trespasse and outlawed shall pay a fine , he which is outlawed for felonie , forfeiteth his lands and goods : and this fine and forfeiture remaineth , though hee purchase a Charter of pardon afterwards . And there is a writ of Eschete of land for felony , pro qua vt lagatus fuit .

So is abiucation an Attainder in it self ( and (a) (a) Stam. 122. c. that the strongest that can be being by his owne confession ) and a (b) (b) 4. Eli. Pl. 262. forfeiture of his lands . And there is a writ of Eschete of land for felonie , pro qua abiuranit regnum . And therefore (c) (c) 3. E. 3. Cor. 33● he that is hanged vpon Iudgement against him , and becommeth aliue againe , cannot abiure ( but an abiuration in that case is in escape ) for one cannot haue two Iudgements for one offence .

The offendor vpon a presentment in the Leet or sherifes turne shall be amerced . 2. H. 4. 24. 8. R 2. auowry 194

The defend ant in an appeale of felony , being acquited shall haue Iudgement also to recouer damages against the Plaintife . Stam. 167. c. Stam. ibid. And if the plaintife be not sufficient , then Common Law and common reason will that hee recouer his damages against those that procured or abetted the plaintife to pursue the appeale . But these damages against the procurers or abettors were to be recouered at the Common Law onely , by writ originall , that is to say , by writ of conspiracie , and not otherwise .

Statutes .

Westm 2. cap. 12. One being acquited vpon an appeale , or enditement of felonie , may haue the abettors enquired , and haue a Iudiciall writ for his damages against , if the appellant be not sufficient .

8. H. 6. cap. 10. An action vpon the case giuen for him that is duely acquit by verdict against euery procurer of any Iudgement , or appeale of Treason , felony , or trespasse . And like processe shall be therein , as in a writ of trespasse , vi & armis .

The plaintife recouering shall be allowed his costs of suit .

CHAP. 46.

Of Iudiciall Writs to execute Iudgements .

THese Iudgements haue their Iudiciall writs belonging to them , both meere Iudiciall writs , for the execution of them , and new originals in the nature of Iudiciall writs , to vndo some matters concerning Iudgements .

Meere Iudiciall writs in reall or personall actions , are either such as lye onely within the yeare and day after the Iudgement rendred , or a Scire facias .

Those of the first sort are betweene the 14. H. 7. 15. 19. 15. H 7. 5. parties to the recouerie , for otherwise though it be within the yeare , he that recouereth is driuen to his scire facias , as if it be for debt or dammages recouered against a 38. E. 3. Scire fac. 77 14. H. 7. & 15. H. 7. ibid. fem sole , who afterwards taketh a husband , or by or a gainst ones predecessour or Testator , and in the same Court where the recouery was , for if the record of a recouery in an assise of nouell disseisin bee remoued within the yeare into the Chancerie by a Certiorare , and from thence to the Common place by a Mittimus , or remoued by writ of error out of the Common place into the K. Bench , & the Iudgement affirmed within the yeare , yet the partie is driuen to a scire facias . So if a fine executory be remoued out of the Common place into the Tresurie , and come back by Certiorare and Mittimus , within the yeare no execution shall be by an habere facias seisinam , but by a Scire facias onely . But although the Iudges of the Common place should all dye within a yeare after their iudgement , and other Iustices be chosen , yet in that case execution might bee well enough without a scire facias : for it remaineth still the same Court , or if the Iustices in Eyer come into the Countie , where one hath recouered before the Iustices of Assise , they may award execution by a Scire sacias within the yeare .

Of this kind are vpon recouerie in reall or mixt actions .

Habere facias seisinam to put him in posfession vpon a freehold recouered , in an assise , F. N. B. 167. praecipe quod reddat , &c.

Habere facias possessionem , vpon a Terme for yeares recouered , as in an Eiectione firme , &c.

A writ to the Bishop to admit ones F. N. B. 38. b. & f. Clarke vpon a presentment recouered in a Quare impedit , or assise of darrein presentment : If the suit be against the Bishop himselfe , then this writ may be to the same Bishop , or to the Metropolitan at the parties choice .

Those vpon a recouery in personall actions , are ●●●woforts , either to haue execution 27. El Coo. 11. Sir Wil. Harbertie of the profits of his land & Chattels , or a Capias ad satisfaciendum .

But in Court Barons Execution is onely by distresse , and impounding till the 4. H. 6. 17. 22. off . Pl. 72. partie be satisfied : for they haue no power to sell or deliuer the distresse to the partie , neither doth any execution by the body lye there .

In those of the first sort execution shall be of any (a) (a) Old N. B. 165. 42. E. 3. 11. 2. H. 4. 14. land which the partie had day of the Iudgement rendred , but for (b) (b) Old N. B. ibid. 2. H. 4. ibid. chettels ( though it be (c) (c) 24. Eliz. leases for yeares ) o●●ly those which he had day of the execution sued . (d) (d) 24. Eli. ibid. So as if he sell his goods bona fide , after Iudgement , and before the writ of Execution sued forth , those goods are not lyable to the execution : or if a writ of execution be sued forth , and neuer returned , and after the defendant alien his goods , and then the Plaintife purchaseth another writ which is returned , yet execution shall not be of those goods , for writs which neuer are returned are not of record , nor of any force at al. But an alienation made after the Teste of that second writ had beene nothing worth .

Of this kind are a Scire facias , and a Leuari facias . Fierifacias to lente execution of his goods and Chattels onely . Leuari facias 15. El. Pl. 441. Old N. B. 165. to leuie execution of the profits of his land and Chattels . The forme is , Praedicta pecuniam de terris & catallis praedicti ( the defendant ) leuari facias , Ita quod ea habeas in ett ' tali die praefat. ( the Plaintife ) deliberand . And this hauing words that he shall leuie the money of his lands and chattels , it seemeth that the Sherife may take the rents payable by the Tenants in execution of the debt , but not to seise the land , and deliuer it to the partie .

Statutes .

West . 2. cap. 13. He that recouereth debt or damages in the Kings Court may at his choise haue a scire facias of the land and chattels of the debtor , or a writ for the sherife to deliuer him all the Chattels of the debtor ( except oxen and plow beasts ) and the moitie of his land by a reasonable extent till the debt be leuied . And if he bee eiected out of the land , he shall haue an assise : and afterwards a writ of redisseisin if need be .

●1 . E. 1. Stat Acton Burnel . A debt acknowledged to a Merchant , before the Maior of London , Yorke , or Bristow , or before a Maior or Clarke ( appointed by the King thereunto ) shall be enrolled . And if it be not paied at the day , the debtors moueables shall be prised and sold in satisfaction by the Maior , if he haue any within his iurisdiction , else by writ out of the Chancery vpon a Certificate of the Recognisance thither . The prisors to take them of the price if they prise too high ; if they haue not moueables sufficient , then he shall be imprisoned til , &c. The like processe against pledges , in default of sufficient moueables of the principall .

13. E. 1. Stat , De mercatoribus . A debt acknowledged to a Merchant before the Maior of London , or chiefe Wardein of a Towne , which the King shall appoint , or other sufficient men when they cannot attend , and before a Clarke which the King shall assigne , shall be enrolled , and if it be not payed at the day , the debtor if he be a lay man shall be imprisoned by the Maior till , &c. if he be within their power , else by writ out of the Chancerie vpon Certificate of a Recognisance thither . And if he agree with the ereditor within a quarter of a yeare after , then al the lands which were the debtors , day of the Recognisance made , and also his goods , shall be deliuered to the creditors vpon a reasonable extent . And of these lands so deliuered , the conisee being ousted , shall haue an assise or redisseisin .

The writs out of the Chancerie shall be returnable before the Iustices of either Bench , and vpon a Non est inuentus returned or that he is a Clarke , writs to all the sherifes where he hath lands or goods , shall go forth to deliuer the same vpon reasonable extent , and to what sherife hee will to take his bodie .

The like processe shal be against the pledges if the money be not paied at the day .

If the debtor or pledges dye , the creditor shall haue execution vpon the lands of the heire at his full age .

27. E. 3. cap. 9. The Maior of the Staple shal take Recognisance of debt before himselfe and the Constables of the Staple , whereupon default of paiment being made the debtors body shall be imprisoned , and his goods sold in satisfaction ( if they bee within the Staple ) else vpon a Certificate in the Chancerie , a Writ shall goe out from thence to imprison their bodies , and seise their lands and goods which shall be returned in the Chancerie , and execution thereupon in all respects as in the Statute Merchant . Saue that the debitor shall haue no aduantage of the quarter of a yeare .

5. H. 4. cap. 12. A Statute beeing once shewed in the Common place , and the processe afterwards discontinued , yet execution may afterwards be awarded without shewing it againe .

11. H 6. cap. 10. He that is in prison vpon a Recognisance , shall not be deliuered out of prison vpon a Scire facias against the partie , and suretie thereupon found to the king alone , but shall finde sureties seuerally as well to the King as to the other partie .

23 H 8 cap. 6. Either of the chiefe Iustices , or in their absence out of the Terme , the Maior of the Staple of Westm with the Recorder of London may take Recognisances . And they shall be executed in all respects as a Statute staple .

27. Eliz. cap 4. Euery Statute Staple or Merchant , not brought to the Clarke of Recognisances within foure moneths next after the acknowledging , to enter a true copie thereof , shall be against all persons , their heires , successors , executors , administrators , and assignes onely , which for good consideration shall after the acknowledging of the same Statute purchase the land , or any part lyable thereunto , or any rent , lease , or profit of it .

32. H 8. cap. 5. Lands lawfully deliuered in execution vpon a Iudgement or Recognisance , being euicted without any fraud or default in the tenant before he haue leuied the whole debt and damages , the recouerer and the Recognisee shall haue a Scire facias out of the same Court where execution was awarded , returnable there full forty dayes after the date And thereupon a new writ of Execution of the nature of the former to leuie the rest of his debt and damages , if the defendant make default , or shew no good matter in barre .

Magn̄ chart̄ cap. 8. The King shall not take the lands or rents of the debtors , if he haue sufficient chattels .

Magn̄ chart̄ cap. 18. The goods of the debtor may be attached after his death by the view of lawfull men . That nothing shall be medled with till the Kings debt be payed .

33. H. 8. cap. 39. All Obligations to the king shal be of the force of a statute staple .

Prerogatiue .

The King may haue a distringas to leuie an amercement , or such like , by distresse ● sale , whether it be an Amercement in the Leet , or Sherifes turne , or otherwise .

A Capias ad satisfaciendum is to take his Old N B. 167. bodie in execution , for satisfying of the partie . And this is alwayes vpon a recouerie 17. El. Coo. 12. Sir Wil. Harbertie 2. H. 4. 6. in a personall action where a Capias lay . Therefore it lyeth not in any reall action as in a writ of dower , or other proecipe quod reddat , nor at the Common Law in debt , detinue , account , &c. but in actions of 40. E. 3. 25. 49. E. 3 2. 49. E. 3 ibid. trespasse , and such like . And here an exigent shall be awarded vpon the first Capias , for if he were taken by the Capias , he should pay vnto the King a fine for a trespasse adiudged against hlm .

Prerogatiue .

Of this nature are two speciall writs by the Kings prerogatiue . Capias pro fine Regis , and capias vtlagatum .

Capias pro fine Regis , when the partie is 1. H. 7. 20. adiudged to pay a fine vnto the King .

Capias vtlagatum , to take one outlawed , Old . N B. 168. which is a kind of Iudgement and determination of the originall writ as appeared before .

These are the Iudiciall writs within the yeare and day .

A scire facias which lyeth after the yeare and the day , is to warne the defendant vpon Old N. B. 163. 27. Eli Coo. 12. in Sir Will . Harb . ● . recouerie in reall actions , for in personal actions debt onely lay after the yeare , which is a new originall , till Westm 2. cap. 45. gaue a scire facias , to shew cause why the Plaintife should not haue execution . Therfore here the defendant may plead matters Lit. 116. growing after iudgement rendred to oust the other of his execution , as outlawry , &c. or a release of all actions , for in as much as he may plead vpon this scire facias , it may well be called an action , though it be but a writ of execution . But notwithstanding that a man which recouereth debt or damages , release to the defendant all actions , yet he may lawfully sue execution by a fieri 8. E. 4. 15. 1. El. Dy. 16● . 19. H. 8. 6. 22. H. 6. 41. 2. H. 7. 3. 24. H 8. Br. peremptorie 63. facias , Capias ad satisfaciendum , &c. for these cannot be called actions . Here vpon a Nihil returned , execution shall bee presently against the parties to the iudgement . But not (b) (b) 1. Eliz. ibid. against Executors , or Administrators , nor in a scire facias vpon a (c) (c) 1. El. ibid. Recognisance ( a ) 1. Eliz ibid. or (d) (d) 1 Eli ibid. 2. El. Dy. 172 8. E. 4 ▪ ibid. Charter of pardon , vpon an outlawrie , or such like , or to (e) (e) 26. H. 8. ● Dy. 198. repeale a patent , for in all these cases two Nihils must be first returned . And therefore a scire facias sicut alias shall go forth . And the (f) (f) The Stat. West. 2 cap. 46. doth so recite it . Solemnities of sommons , attachment , essoyne , view of land , &c. lie not in this writ .

Statutes .

Westm 2 cap. 46. For all things recorded before the Kings Iustices , or contained in fines ( whether contracts , couenants , Obligations , seruices or customes acknowledged , or any other things enrolled ) a Writ of Execution shall be within the yeare , so as the parties shall not need to plead : After the yeare a Scire facias . The like is of mesne who by Recognisance or Iudgement is bound to acquit .

In case of life the Iudge may command execution to bee done without any writ .

A woman (a) (a) 22 ass. Pl. 71. quicke with child , (b) (b) 22. ass . Pl. ibid. the triall whereof is by a Iurie of women : and the writ for it is called a writ De ventre inspiciendo , shall for (c) (c) 23 ass. Pl. 2. once and no more , be respited (a) (a) 22. ass. ibid. execution , but it is no plea vpon her arraignment , to say , that she is enseint , but she must answer to the felonie .

CHAP. 47.

Of new Originals in the nature of Iudiciall writs , to vndo matters concerning Iudgements .

THe new Originals in the nature of Iudiciall writs to vndoe some matters concerning Iudgements , whether it be the Iudgement it self , or the verdict whereupon Iudgement is giuen , that so the iudgment also may be vndone , or to auoid the execution growing vpon the iudgment , are either writs grounded vpon error , or an Attaint , and Audita quaerela .

Writs grounded vpon Error , are a writ of Error and false Iudgment ; both which lie vpon any Error in the proceeding , as well in Redditione executionis , ( as vpon a Capias ad satisfaciendum , awarded for dammages 16. H , 7. 6. recouered in a reall action ) as in Redditione Iudicij .

But Error in Processe , may the same Terme bee reformed in the same Court , Whether it be in the Kings Bench (a) (a) 7. H. 6. 28. or Common place , (b) (b) F. N. B. 21. ● . 12. E. 4. 11. 5. H. 7. 25. and that by writ or without .

The Processe here is a Scire facias .

The partie bringing a writ to reuerse error in the Iudgement , may haue a Supersedeas to stay execution till the error be discussed , Whether it be matter apparent , or matter en fait , that is alledged for Errour . But no such Supersedeas shall bee vpon an Artaint ; for that which is found by the oath of twelue men is intended true till it be reuersed , but it may as well be intended that there is an errour in the Record , as not .

A writ of Error is vpon an Errour in Court of Record .

And may be sued in the Kings Bench , or Parliament .

In the Kings Bench when the errour is in any inferior court , whether the iudgment be giuen in the Common Place , (a) (a) F. N. B. 21. i. Chancerie , (b) (b) 13. El Pl. 393 Citie , (c) (c) 14. H. 7. 1. 8. Eli. Dy. 250. 21. El. So holden in the Common place , contrarie to Fitz. N. B. 21. i. or Gorporat towne , as before the Maior of Excester , or other Court of Record ; for no Wait of Error is returnable in the Common place .

Statutes .

9 Ric. 2 , Cap. 3. If tenant for life , or in taile , after possibilitie of the issue extinct be impleaded , and iudgement passe against him , hee that is in the reuersion at the time of the iudgement , shall haue a Writ of Error vpon an error in the record of the same iudgement , as well in the life of such a tenant , as after his death . And if at any time of reuersing of the iudgement , the Tenant for life , &c. be aliue , he shall not bee restored , &c. his possession , with the mesn , issues , and he in the reuersion to the arrerages of the same rent , if any be due . But if the tenant for life , &c. be dead at the time of the reuersing of the iudgement , then hee in the reuersion shall bee restored to possession , with the issues after the death of their Tenant for life , &c. and the arrerages of rent due in his life .

31 Ed. 3. Cap. 12. Errour in the Exchequer shall be reuersed before the Chancellor , and Treasurer , taking to them the Iustices , and other such sage persons , as they thinke fit . And after the roll shall be sent backe into the Exchequer , to make execution .

31 , Eliz Cap 1. If either Lord Chancellor or Lord Treasurer , or both the chiefe Iustices , come at the day of adiournement in a writ of Error in the Exchequer , it shall be no discontinuance .

32. H. 8. Cap 30. made perpetuall . 2. E. ● . Cap. 22. After a verdict tried by twelue men , or more , in any suit in Court of Record , no iudgement shall be stayed or reuerfed for any mispleading , lacke of color , insufficient pleading , miscontinuance , discontinuance , miscontaining of Processe , misioyning of the issue , lacke of Warrant of Atturnie : for the partie against whom the issue is tried , or any other default or negligence of the parties , their councellors , or Atturnies .

18. Eliz. Ca. 4. After a verdict of twelue men , or more , in any suit in Court of Record , iudgement shall not be stayed or reuersed for default in form , or lack of form , as false Latin , variance from the Register , &c , in any writ originall or iudiciall , declaration , bill , or plaint , or for want of any writ originall or iudiciall , or by reason of any imperfect or insufficient returne , or for want of any Atturny , or for any manner of default in processe vpon , or after the praier or voucher .

27 , Eliz. Cap 5. After demurrer ioyned or entred in any suit in Court of Record , the Iudges shall proceed and giue iudgement according as the verie right of the cause and matter in law shall appeare vnto them , without regarding any imperfection , defect , or want of form in any writ , return , plaint , or declaration , or other pleading whatsoeuer ; except those onely which the partie specially & ꝑticularly shal set down and expresse together with his demurrer . And that no iudgment to be giuen , shall be reuersed by any writ of Errour , or by any such imperfection , defect , or want of form , as is aforesaid , except as only be before excepted .

These two last statutes extend not to suits of felonie or murder , nor to enditement or presentment of them , or of treason , or other matter , nor to processe vpon any of them , nor to any suit vpon a popular or penall statute .

In the Parliament , when the errour is 1. H. 7. 19. 23. El. Dy. 375. in the Kings Bench : And is returnable before the king and the lords only . The order wherof is this , viz. The party that sueth it must haue a bill from the king indorsed ; and thereupon the Chancellor must make him a writ of Error , and then the chiefe Iustice of the Kings Bench shall bring with him ( in the Parliament ) vnto the Lords in the inner Parliament Chamber , the writ of Error , and the bill endorsed , and all the Rols wherein are contained the pleas and processe in which error is supposed , and there shall leaue the transcript of all the Record and Processe , &c. together with the said writ of Error with the Clarke of the Parliament , who shall haue the custodie thereof . And by the Lords onely , and not the Cominalty shal a Steward be assigned , who together with the Lords , by aduise of the Iustices , shall proceed to amend the error .

Statutes .

27. Eliz. cap. 8. An error in the Kings Bench in an action of debt , detinue , couenant , accompt , action vpon the case , Eiectione firme , or trespasse first commenced there ( where the King is no partie ) may at the parties choise be reuersed in the Exchequer chamber before the Iustices of the Common place , and such Barons of the Exchequer as are of the choise , or sixe of them at the least , other then for error concerning the iurisdiction of the kings Bench , or want of forme in a writ , returne , plaint , bill , declaration , pleading , processe , verdict , or proceeding whatsoeuer . And vpon the Iudgement affirmed or reuersed , the Record shall be sent backe into the Kings Bench , to proceed and award execution thereupon .

The partie grieued with such reuersall or affirmation , may haue a writ of Error in the Parliament as vpon iudgement in the kings Bench.

31. Eliz. cap. 1. Any three of the Iustices and Barons ( if the full number come not ) may receiue writs of error , award , processe , prefixe dayes for the continuance of the writs of Error .

False Iudgement is vpon error in a F. N. B. 17. & 18. base Court .

Thus much of writs of Error and false Iudgement , there followeth an Attaint , and Audita querela .

Attaint is to enquire whether a Iurie of 12. men gaue a false verdict . That so the iudgement following vpon it may bee reuersed , 18. E. 4. 9. and the partie restored to all that he hath lost , that is to say , if it bee the defendant to his damages and whatsoeuer else : if the plaintife , to his title , his action , &c. for an attaint lyeth not till Iudgement bee giuen , 9 ass. Pl. 21. and if the Writ beare date before it shall abate . And this lyeth onely vpon a Br. attaint. 42. verdict by xij . for if hee lose in a Writ of right no atraint lyeth neither by the Common Law nor Statute , because it passeth by a Iurie of more then xij . that is to say , the grand assise . No more doth it in an enquest of office , & vpon a writ to enquire of damages 3● . H. 6. 1. 3. H. 6. 29. in trespasse , for that may bee by a lesse number then xij .

And this must be brought in the life of him for whom it passed , and of some of them that gaue it , whom we call the petie Iurie , for if either the (a) (a) 25. H. 8. Dy. 5 26. ass. Pl. 12. partie himselfe , or (b) (b) 13. E. 4. 5. all the petie Iurie bee dead , or (c) (c) 34 ass. Pl. 6. 26. ass. Pl. 2. all of them but one , the attaint faileth , and lyeth onely vpon a verdict in personall actions other than trespasses : for it seemeth that there was an attaint at the Common Law , because Westm 1. cap. 37. speaketh of attaints Br. attaint. 42. without expressing any penaltie . And 34. E. 3 cap. 7. giueth it in plea reall as well as personall . So as it lay before in a plea personall , debt , detinue , couenant , and such like : but not in trespasse , for that is giuen by statute . And the reason why it lay not in an action of Trespasse , is because then vpon reuersing of the recouerie the K. shall lose his fine . Neither did it lye at the Common law in a plea reall of land , for Westm 1. cap. 37. giueth it in that case . And the reason of that was , because he that loseth may haue a writ of right .

The Iurie here called the Grand Iurie , Old N. B. 111. are 24. who are to be warned the first day . And the processe is against the partie sommons , Old . N B. 112. resommons , as in a mortdancester , darrein presentment , and Iuris vtrum , against the petie Iurie , venire facias and distresse .

The petie Iurie must bee all present 22. H. 6. 8. when the grand Iurie is taken , else it can neuer be taken , which was a great mischiefe at the Common Law , for it might be that some of them had nothing , and so would neuer appeare , And may plead in bar of the 35. H. 6. 30. attaint , as a release , arbitrement , &c. for this excuseth them of their false oath , but not in abatement of the writ , as another attaint 19. ass. Pl. 15 : hanging , that the demaundant had ioyntly with another not named in the writ : or if a woman bring it to say she is couert , &c.

The Plaintife in the attaint can giue no more euidence then was giuen at the 34. H. 8. Dy. 53. first . But the defendant in affirmance of the first verdict may .

Statutes .

Westm 1. cap 37. An attaint is giuen in pleas of land or of freehold , or of things that touch freehold .

1. E. 3. cap. 8. In writs of trespasse as well vpon the principall as the damages , though Execution be not sued of them .

28. E. 3. cap 8. And that as well by bill as by writ , without regarding the quantitie of the damages .

34. E. 3. cap. 7. An attaint is giuen in euerie plea , reall as well as personall .

9. Ric. 2. cap. 3. Giuen to him in the reuersion lyuing his Tenant for terme of life vpon a recouerie against him , with restitution of the Tenant that lost his possession , with the mesne issues . And of him in the reuersion to the arrerages of his rent . But if the Tenant that lost be either dead , or were of couin with him that recouered , then restitution shall be to him in the reuersion of the possession it selfe , with the mesne , issues and arrerages , after such death and recouerie by couin .

14 ▪ E. 2. Of Sherifes and greene waxe , if the pety Iurie appeare not at the first grand distresse against them , or a Nihil be returned the grand Iurie shall be taken by their default .

23. H. 8. cap. 3. made perpetuall 13. Eliz. cap. 9. In a suite before Iustices of Record not concerning life , an attaint is giuen against the petie Iurie , and euery of them , and the partie himselfe .

The processe against the petie Iurie and fraud Iurie , shall bee sommons and resommons , and distresse infinite .

Open proclamation shall be made in the Court where the distresse is awarded more then xv . dayes before the returne of the distresse .

The graund shall be taken in default of the defendant , or petie Iurors , or any of them .

The petie Iurie that appeare beeing the same persons , and the writ , processe , returne , assignment of the false oath good , shall haue no answer , but that hee made a true oath , except the plaintife or demaundant hath beene non suite , or discontinued , or had iudgement against the petie Iurie vpon his suite of attaint . But the partie himselfe shal plead any thing onely in barre of the attaint . Notwithstanding which plea , the grand Iurie shall without delay enquire of the truth of the verdict . Such a day shall be giuen in the processe as in a Writ of dower , and no essoyne or protection allowable .

By the death of the partie , or one of the petie Iurie , the attaint shall not abate , nor be deferred against the rest as long as two of the petie Iurie shall liue .

Euery attaint shall not bee in the Kings Bench , or Common place , and the Nisi prius granted vpon the distresse by the discretion of the Iustices . And euery of the petie Iurie may be by Atturny . The non suit or release of one when there be diuerse Plaintifes or demaundants in an attaint shall not preiudice the rest .

Euery one of the grand Iurie must haue xx . markes a yeare land of freehold , out of auntient demesne . But if the value of the thing in suite bee vnder the value of fortie pounds , then v. marks a yeare , or a C. marks worth of goods sufficeth for default of such sufficient Iurors , within the same Countie , a Tales shall be awarded vnto the next .

11. H 6. cap 4. The Plaintife shall recouer costs and damages against the Iuror or defendant that pleads a fained plea in delay . Audita querela is for one being or to be in execution to relieue him vpon good matter of discharge which hee hath no meanes to plead . As if one hauing a release be taken 22. H. 8. 56. in execution in one Court , as in the Common place , by writ out of another ( as out of the Chancerie ) returnable in the Common place , vpon a Recognisance , or condemnation in the Chancerie . ( But if the Recognisance or condemnation had beene in the Common place , then they might haue awarded processe vpon that matter ) If execution be sued of a Recognisance by Fieri facias or elegit : ( but not by Scire facias , 48. E. 3. 20. for there he hath day to answer , therefore it is his folly if he come not in and plead it , that is to say , where the Sherife returneth him warned : otherwise it is vpon a Nihil returned ) if a release or acquittance be made vnto him after the Scire facias sued , if after verdict and before iudgement they haue put themselues into abitrement .

The processe where the Audita quertla is sued , before execution is a venire facias and 12. H 4 6. 15. Br. Audit . quaerela . 15. 22. H. 6. 56. 12. H. 4. ibid. 47. E. 3. 1. 17 ▪ E. 3. 3. 28. E. 3. ꝓ Old N. B. 66. distresse , and vpon default after appearance and plea pleaded , a distringas ad audiendum Iudicium , for thereby Iudgement is to bee giuen against him . And in this case of an Audita querela sued before execution , he may haue a Supersedeas vpon good matter of discharge surmised in the writ of Audita querela , to stay for once the execution vpon sureties , so (a) (a) 11. R. 2. Supersed . 14. can he not beeing in execution . Neither (b) (b) 2 ▪ H. 7. 12. 21. H. 6. 34. can he haue a Supersedeas before execution oftner then once , though (c) (c) 43 E. 3 ●8 . F. N. B. 104. q. cont . it bee vpon new matter . But if the (d) (d) F. N B. 204. q. Audita querela bee abated for variance from the Record , or such like , there in another Audita querela he may haue a second Supersedeas .

After execution the processe is a Scire facias , as if he be brought in by a Capias ad 22 H. 6. 56. 15. E. 4. 5. satisfaciendum , for there hee is in prison , otherwise it is if he be not taken by a capias , but come in gratis . And this scire facias is onely for the more hasty expedition of the partie that is in prison , for if the processe should be by distresse infinite , peraduenture the partie would lose issues , to keepe the others body in perpetuall prison .

CHAP. 48.

Of certaine speciall writs wherein no Processe lyeth .

THus farre of an Action , and the seuerall parts of it . And of writs both Originall and Iudiciall , that begin or prosecute the action . Beside which , there be certaine other originals out of the Chancerie , which are as it were speciall anomalies and exceptions from the former . Being not diductory to bring any matter into plea or solemne action , but onely Commandatorie or Prohibitorie to do or leaue something vndone . And therefore no Processe at all lyeth in these writs , but onely an (a) (a) F. N. B. 6. b. 185 d. 134. a. Old N B. 15. 35. Attachment vpon a contempt , for not executing or obeying them .

Of which nature are ,

1. Commandatorie ones , these that follow . F. N. B. 26 3. c. Dote assignanda , is for the wife of the Kings Tenant , when the King is entituled by office of land , whereof she is dowable , alwayes directed to the Eschetor . And may bee either to deliuer her such part of F. N B. 263. d. her land as is alreadie assigned to her in the Chancerie for her dower , or for the Eschetor himselfe to assigne her part vnto her .

If her husband held in chiefe , then she F. N Br. 263. c. must first take an oath in the Chancerie , not to marrie without the Kings licence , before she can haue this writ . But if he held of the King by Knight seruice , as of a mannor , or if hee held from one that is in ward F. N. B. 264. a. to the King by reason of his nonage , there she shall not need to take any such oath .

Homagio capiendo for tenant by homage auncestrell to compell the Lord to receiue 45. E. 3. 23. his homage , and is to saue his warrantie and acquitaile , which he loseth if he be impleaded before the Lord haue receiued his homage .

Scutagio habendo for the Lord to haue escuage of his Tenants by Knights seruice , F. N B. 83 c. when the same is due , by reason of any voyage royall made by the King in proper person , or by his Lieutenants against the Scots , or them of Wales .

And to make his sonne a Knight , or to F. N. B. 82. a. c. marrie his daughter , for the Lord to haue this aide of his Tenants , where it is due .

De corrodio habendo , & de Annua pensione , for the King . The (a) (a) F. N. B. 230. a first to haue a corodie for his seruant , the (b) (b) F. N. B. 231. g. other to haue a pencion granted to his Chaplein , (c) (c) F. N. B. 230 a till he be promoted to a benefice . Both (d) (d) F. N. B. 230. a & 231. g. these where the same are due . As (e) (e) F. N B. 230. a. of common right a Corodie is due from euery Abbey , Priory , or other house of Religion , whereof the King is founder in the right of his Crowne . A (f) (f) Fit ibid. F. N. B. 229. b. pension from euery Bishoppricke in England or Wales .

De libertatibus allocandis , for one whether a singuler person , Burgis , Citizen , or other , or a body corporate , empleaded before the Kings Iustices of the one Bench or other , Iustices errants , Iustices of the forest , &c. to haue the liberties granted them by the King , or his progenitors , to bee allowed where the Iustices wil not make allowance of them And therefore is to be directed to the Iustices themselues , not to the sherife , for he is but their officer , and subiect to be amerced by them , if he do not his office as he should .

De executione Iudicij , to haue a Iudgement executed , whether the same were giuen Old N. B. 15. in a Court Baron , viz. the Court of the Lord , Hundred , or Countie Court , by writ of right Iusticies , or plaint without writ , or in Court of Record . The same to be directed to the sherife , if iudgement were giuen before the Baylife in the Hundred or Lords Court , to the Coroners if it bee before the Sherife in the Countie Court , to the Iustices themselues if it be in a Court of record . And this writ is a Iusticies .

De restitutione temporalium , where the temporaltie● before seised into the Kings F. N. B. 169. hands , are to be restored to a Pryor or Bishop elect and consecrate . And this must be directed to the Eschetor .

De securitate pacis , for him that is in feare of corporall hurt , to be killed , beaten , assaulted , F. N. B. 79. &c. or of the burning of his houses , to be secured of peace in that behalfe , against the partie whom he feared And may be for either of these causes alone , or for both ioyntly in one writ , where a corporall oath must bee taken by him that standeth so in feare . And that was wont to bee in the Chancerie before some Master of the Chancerie , by the auntient course of Law . But now they vse to purchase such writs by their friends there without taking of an oath , which maketh them to be sued forth many times more for the vexation of the parties then vpon any iust cause . The common forme of this writ since the Statute 1. E ▪ 3. cap. 16. which appointeth Iustices of peace , is for the ease of the people somewhat altered , and it is called a supplicauit , directed sometimes to the Iustices of peace , and to the Sherife , sometimes to the Iustices or one Iustice sole , and sometimes to the sherife onely to compell the partie to find sufficient mainperors in a reasonable sum of money , that he shall neither do nor procure any bodily hurt , or burning of the parties houses ; or vpon refusall , to commit him to the gaole till he doe .

De vi Laica remouenda , to remoue alllay force in any Church , especially where debate Old N. B. 33. is betweene two persons of a Church of prebends about the title , and one with force and armes holdeth the other out : and (a) (a) F. N. B. 54. this writ may be as well vpon the bare surmise of the Incumbent or partie grieued , without any Certificate made by the Bishop into the Chancerie , of such force as vpon and by reason of such Certificat . And there bee two seuerall formes of writ in these two cases , but hereby the sherife may not remoue the Incumbent out of possession of the Church , whether he be in by right or wrong , for then he may haue a writ to restore him againe , but onely remoue the force : and this writ is returnable or not returnable at the parties pleasure that doth sue the same , and may be returnable in the Common place , as well as in the Kings Bench.

Of clensing streets to haue the wayes , streets or lands of a Towne Corporate , F. N. B. 185. d. of the Suburbs of it , to be made cleane , and so kept , when they be stencht , by dung and filth , hogsties , and such like , whereby the ayre is corrupted and infected , to the indangering of the health , or other great discommoditie to the Inhabitants or Trauellers that way . But it seemeth that no such writ lyeth for the Village in that Countrey , though they be not kept cleane , but for corporate Townes onely .

De Leproso amouendo , to remoue a Leper F. N. B. 234. or Lazer , that will come abroad to Church among his neighbours from the companie of men to some solitarie place of dwelling . And that is for feare of infecting of them : but if hee will keepe in his house , and not come among his neighbours , then it seemeth he shall not bee remoued thence , nor that any Lepers or Lazars shal be remoued by this writ , but onely such as appeare to be so by their speech , vlcers , rottennesse of flesh , stinke , and such like , and not those that though they be infected inwardly , yet appeare not so without .

De excommunicato capiendo , vpon a significauit , Old N. B. 34 & 35 so we call the ordinaries Certificate into the Chancerie , that one excommunicate standeth out fortie dayes , and will not be iustified by the sensures of the Church to imprison , and so to iustifie him by his bodie , till he satisfie holy Church for his contumacie and contempt , and this writ also is a Iusticies .

De excommunicato deliberando to deliuer Old N. B. 35. a. F. N. B. 63. ● . f. him out of prison when the Church is satisfied , and hath absolued him .

De cautione admittenda , when one taken by an Excommunicata capiendo offereth sufficient F. N ▪ B. 63. c. pledge or caution to obey holy Church , which is refuled to haue that caution admitted and to be deliuered : and may be either to the (a) (a) F. N. B. ibid ordenarie himselfe to command him to bee deliuered , which the ordinarie may doe by word , or to (b) (b) F. N. B. 63 d. the Sherife to make such deliuerance , and then it is withall , a de excommunicato deliberando .

De heretico conburendo , to cause one conuicted for an Hereticke to bee burnt . And F. N. B. 269. this as the other writs to bee directed to the Sherife , the partie being committed by the Clergie into the secular power . But by the Statute 2 H 4. cap. 15. Euery Bishop in his Diocesse may conuict a man of heresie , and cause him to abiure , and after conuict him anew , and condemne him to the fire , and thereupon make a precept to the Sherife to take and cause him to bee burnt , and the same a sufficient warrant to the Sherife without any writ of the King : but that Statute is repealed by 25. H 8 ca. 14. So as now the ordinary cannot commit him to the lay people to be burnt without the Kings writ first purchased .

De coronatore exonerando , to discharge a Coroner of his office vpon iust cause . As if F N. B. 163. n. he cannot extend his office for other businesses of the Kings that hee is imployed about in the same Countie , or bee old and feeble , or vnfit for the office , and haue not lands and tenements sufficient in the countie whereupon he may dwell according to his state , or haue the Palsey , or dwell in the remote parts of the shire , so as hee cannot conueniently exercise the office , or such like .

And this writ is directed to the Coroner F. N. B. ibid. himselfe .

De exonerando viridario forest● , to discharge a verder of the forest in like sort .

De coronatore eligendo , to chuse a Coroner , two or three if there be need of so many , F. N. B. 163 k. in full Countie , by the freeholders of the Countie . And this is commonly vpon the death or discharge of some of the Coroners , when it is vpon the discharge , then this writ renteth the cause of their discharge .

De electione viridariorum forestae , to chuse F. N. B. 164. ● . a verdor of the forest in like sort . Conge deslier , to Deane and Chapter , or such like to chuse their Bishop .

Statutes .

25. H. 8. cap. 20. For the election , nomination , presentation , inuesting , and consecrating of Archbishops and Bishops .

A writ for the royall assent to signifie to the ordenarie his assent to the election of an Abbot , &c. & to will him to execute that which belongeth to him , therefore this is alwayes to the ordenarie himselfe .

Desecuritate inuenienda qd se non diuertat ad partes extera sine licentia Regis , to compell one to find sufficient mainpernours in a reasonable summe of money , not to go into forreine parts out of the Realme , without the Kings licence , nor any thing there attempt in contempt or preiudice of the king , or hurt of the people , nor send any thither for any such cause . And as a Supplicauit may be directed to the Iustices of peace , or sherife , or both . And euery one vpon surmise to the Chancellour may sue this writ for the King : for by the Common Law euery one that will may goe out of the Realme for merchandize , trauaile , or other cause at his pleasure without the Kings licence . But the king may restraine any subiect by this writ , or by his priuie seale , or signet , or by proclamation without writ , or other commandement , because euery man is bound of common right to defend the King and his Realme .

5. Ric. 2. cap. 2. None shall go out of the Realme without the Kings leaue vpon pain of forfeiture of his goods , except the Lords and other great men of the Realme , known Merchants and the Kings souldiers .

Statutes repealed . 4 Iac. cap. 1.

All dedimus potestatems . The principall of them are these .

Dedimus potestatem , to giue the Kings royall assent to the election of an Abbot , or F. N B. 170. ●b . such like , made or to be made , and to signifie so much by his letters to the ordenarie , that he may doe that which belongeth to him , and to receiue fealty , &c. commanding the partie to do the premisses . And therefore is directed to the partie himselfe that must do these things .

Dedimus potestatem de fine leuando , to certaine F. N. B. 146. g. Old N. B. 103. persons to take the acknowledgement of a fine out of Court , when one that hath agreed in the Kings Court to leuie a fine , is so feeble that he cannot trauaile , for euery such dedimus potestatem supposeth a writ of couenant , or such like , hanging . F. N. B. ibid. 1. H 7. 9. Old N. Br. ibid. And they to whom this Writ is directed , must go in proper person to the parties to take the conisance , which being certified to the Kings Iustices of the Common place , the fine shall be engrossed . The chiefe Iustice of the Common place may take the acknowledgement of a fine without any dedimus 1. H. 7. 9. potestatem , so can no other Iudge , de rigore Iuris . But a Iustice of assise by a generall patent with a clause of non obstante may

Statutes .

Stat. Carlife . 15. E. 2. The dedimus potestatem shall be directed to two of the Iustices , or one Iustice and a knight .

Prerogatiue .

Dedimus potestatem de Atturnato saciendo , for the Iudges to admit an Atturny for F. N. B. 25. ● . one in a suite , whether it be for the plaintife or desendant , demaundant or tenant , and in what action or suite soeuer the same be . This writ must be directed to the Iudges themselues , and groweth by the Kings prerogatiue , for at the Common Law the parties must appeare in proper person , not by Atturny , although the Statutes gaue power afterwards to make Atturnies in diuerse cases ; as appeareth before . But before those Statutes it seemeth that the King might grant to any man to make an Atturny in any suite . And one reason thereof was , because it is no error though the Iudge admit any plaintife or defendant to make an Atturny , where by the Law he ought not .

Prohibitory ones are these that follow .

A protection cum clausula nolumus , to free ones possessions , land , rent , corne , cattell , Old . N B. 29. a. & b. carriage , &c. that nothing be taken against his wil for the Kings businesse , by his officers or ministers . This may be as well for a seculer as a spirituall person , and groweth by the Kings speciall fauour .

Persons or other spirituall persons not to be charged to the payment of fifteenes , F. N. B. 176. a. for goods in their possession annexed to their Churches .

Quod clerici non eligantur in officium baliui , Old N. B. 175 b. for a Clark , so is euery termed that is within holy orders , not to be chosen an officer , as Bailife , Beadle , Reeue , &c. for his lands , and this writ reciteth that by the common Law they ought not , and commandeth that if any distresse or amerciament be leuied , in this respect , it be restored .

A prohibition to forbid tenant in dower , or by curtesie of England , or gardein by F. N. B. 55. e. 14 H. 8. 6. Shelly . Knight seruice , or in soccage , to commit wast to the destruction of the inheritance . Tbe forme of the writ . F. N. B. 8. c. 14. H. 8. ibid. But this writ lieth not against lessee for life or yeares , for they come in by their owne lease : but in the other cases before the Law maketh their estate .

Statutes .

Glocest . cap 5. A man may haue a writ of wast out of the Chancery against tenant by curtesie or dower , or otherwise for terme of life or yeares , and being attaint of wast , hee shall forfeit the waste and treble damages .

Westm 2. cap. 14 The processe in a writ of wast shall be sommons , attachment , distresse : and if he come not , then a writ vnto the sherife , taking with him xij . men to goe to the place wasted , and there enquire of the waste , and vpon that waste returned , iudgement shall be .

11. H 6. cap. 5. Where the tenant grants ouer his estate , but notwithstanding takes the profits , and commits wast , an action lies against him .

Mag chart̄ . ca. 4. The gardein may not commit wast vpon pain to lose the wardship .

Cap. 5. And must repaire and susteyne the houses , of the profit of the land .

Glocest cap. 5. If the gardein commit wast , and the wardship lost answer not the value of the damages before the heires age , them he shal render the damages to the heire .

Artic. super chart . cap. 18. Eschetor committing waste vpon wards lands , shall answer damages as is ordained before by Statute against them that do wast in wards lands . So of a Subeschetor , and if he be not able his master shall answer for him .

36. E. 3. cap. 13. Stat. 1. If the Eschetor haue a ward to answer to the King of the issues , and commit waste , the heire shall haue an action of wast as well within age as of full age , and whilest he is within age , if he cannot , his next friends shall haue the suite for him .

14. E. 3. cap. 12. The heire when he commeth to full age shall haue an action of wast against the gardeins and fermours to whom the King shall let the land in ward according to that Statute .

Westm 2. cap. 22. A writ of wast giuen for one Iointenant or Tenant in Common , against another , wherein the defendant to be at his choise to take his part in certaine ( and then to haue for his part the place wasted ) or to agree from thenceforth to take nothing more then his Companions do .

Glocest cap 13. Hanging a plea by writ the Tenant may not commit wast , nor estrepment of the land in demaund , and if he do , the demaundant may haue a writ to cause the land to be kept that no wast nor estrepment be done .

A quo minus for grantee of estouers , as houseboote or heyboote , &c. to restraine Old N. B. 159. the grantors from committing wast , so as he cannot haue his estouers .

De exoneratione sectae , for Tenants by suit of Court , or other rent or seruices that F. N. B. 158. they bee not distreined to doe the same for such time as they ought to hold the land discharged . As one which is in ward to the King , a woman indowed in the Chancerie of lands so in ward , and the Tenants parauaile of such a ward , that is to say , where the other Lords of whom the heire holdeth do distreine , for during such time as the heire is in ward , either to the King or to his Committee , he is to doe no suite of Court or other seruices , and if any distresse be taken , it is by this writ to bee restored .

De deonerando pro rata , to discharge the F. N. Br. 2●5 . k. tenant of parcell of the land , according to the rate of his land when hee is lawfully distreined for all the rent or seruices . As where a man which holdeth C. acres of land by the seruice of repairing a bridge , alien in fee xx . acres to one man , and xx . to another , and after vpon this presented one of the alienees , is onely distreined to make reparation , or where the Kings Tenant by fealtie and rent alieneth parcel of the land , and the kings officer distreineth the alienee for all the rent , for the King is not bound by the Statute of Quia emptores terrarum , which will that the feoffee shall hold pro particula , but that he may distreine for all the rent in the part of the alienee , but such a writ lyeth not where one that holdeth of a common person by fealtie and rent , alieneth part of his land , for there the Statute it selfe restraineth the Lord that he cannot distreine the alience , but after the rate and value of the land which he hath purchased

De effend . quiet . de Theolonio to officers of Townes or other places not to grieue spirituall F. N. B. 226. i. persons , or other that ought to bee quit of paying of toll , murage , pannage , pontage , &c. whether by the kings grant or by prescription .

De non ponendo in Iuratis , to discharge F. N. B. 165. a. d. Peeres of the Realme , or other persons priuiledged : as Clarks that are in the kings seruice , &c. from being of Iurie , vnlesse their presence be for any speciall cause necessarie . And this may be directed either to F. N. B. 165. ● . the Sherife not to put them into Iuries , or to the Iudges to discharge them . But if a Piere of the Realme be returned , hee must be sworne or lose issues , if hee appeare not , vnlesse he bring the writ .

Ne eueas regnum , to the party himselfe to inhibite him to go into forrein parts without F. N. B. 85. ● . the Kings licence .

FINIS .
The Table .

A ABatement of the writ , 49. for what causes . ibid. Acceptance of a grant determineth prescription . 22 Accessarie things are of the nature of the principall . 23 Account . 302 Accord , what it is , 181 differeth from an arbitrement . 181. 183. Action what . 225. where locall , and where not , 251. Action of the case wherefore brought , 185 , 186. for a corporall hurt dyeth with the partie . 17 Acquitall , of the donees in frankmarriage by the donor , 141. of the donee in frankalmoigne by the donor . 139 Ad terminum qui praeterijt . 263 Age , of discretion , 28. that shall bind a man or woman in matter of marriage , ibid. that maketh a woman capable of dower , ibid. 126. of a woman to continue ward . 146 Alien , triall betweene him and a denizen shall be per medietatem linguae . 411. being enemie shall not haue a personal action , 28 an obligation made to him shall go to the king , ibid. his goods shall be to their vse that seise them . 178 Aide what . 145. 146 Annuitie what , 161. the vse of the writ of annuitie . 301 Amercement , the Qu. shall not bee amerced , 185. in what cases the plaintife shall bee amerced , 189. in what cases the defendant , ibid. officer amerced . 229 Amendment done by the Iustices of the Clarks error . 228 Apportionment , a dutie growing vpon a contract cannot bee apportioned . 180 Appeale . 310 Approuer . 387 Assault , what . 202 Assise . 284 Atturnement of Tenant by homage ancestrel destroyeth the warrantie , 144. in what cases it is necessarie . 156. of tenant of the freehold is sufficient . 157. Auerment cannot bee against an Indenture , 109. nor a Record of Court . 1●1 Authoritie , deriued cannot bee greater then that from which it is deriued . 11

B BAilment , of two sorts . 179 Barons , what . 86 shall not bee impleaded by that name . 87 Bastard , who , 117. cannot inherit , ibid. in what case hee may gaine a right of inheritance . 118 Batterie , what , 203. when not punishable . ibid. Boroughes what , 92. the difference betweene them and Townes . ibid. Burglarie what . 217

C CAuse , if that cease the effect ceaseth also . 8 , 9. things construed occording to that which was the cause thereof . 10 Causa matrimonij praelocuti . 264 Challenge . 412 , 413 Claime , 121 of villeins goods by the Lord . 159 Colour , in giuing it what must bee obserued . 380 , 381 Commissions . 318 Common what . 157 Common-wealth , things which concerne it fauoured . 39 Confession . 387 Confirmation what . 108 Consideration , it maketh the promise binding , 34. what shall be a good consideration to raise an vse . 25 Consolidation what , 90 Conspiracio , 305. how made and how punished , ibid. Consuetudinibus & seruitijs . 272 Contempts what . 205 Coparceners , who . 118. the eldest shall haue the chiefe house , 132. she onely shall do homage , 142. vnlesse the land be held of the king , 144. they may compell partition . 36 Corodie what . 157 Coroner , his Court . 243. must take no fee , 244. in what case processe is directed to him . ibid. Corporation , 87. of two sorts , 91. a Parson is a Corporation , 88. regular corporations what . 92. secular what . 93. those spirituall are either presentatiue or datiue . 9● . Churchwardens ● Corporation . 178 Count what . 357 Countie what . 79 Countermand , where good and where not . 31 Cui in vita . 265 Curia claudenda . 276 Curtesie of England , in what case the husband shall take benefit thereby , 129 shall not bee of a possession in Law , ibid. why so called . ibid.

D DAy , the Sabbath is no day for Law cases , 7. Sale vpon that day altereth no propertie , ibid. if the end of the terme or day of returne bee on that day , the day following is taken in steed of it , 236. things done in the day fauoured more than those done in the night . 38 Debt and detinue . 294 Deceit , 305. what , 188. in what cases a man may haue remedie . ibid. 189 Deeds what , 108. of two sorts , 109. to whom they belong , ibid. void in the beginning cannot haue a good perfection , 12. not auailable if read falsely to an vnlearned man . 109 Deodand what . 214 Departure what . 50 , 51 Discontinuance , what 190. how made . ib. Disseisin what . 195 Distresse , 135. what may bee distreined , and what not , ibid. the King may distreine where a common person may not , 136. where distresse may not bee taken , ibid. it may not be driuen forth of that Hundred where it was taken , 137. A Millstone cannot be distreined 39 Dower , in what case the wife shall bee endowed . 125. 126. is forfeited by granting a greater estate , 114. barred by liuing in adulterie , 127. by detaining deeds concerning the inheritance , 126. by consenting to the rauisher . 204 Dum fuit infra aetatem . 264 Dum non fuit compos mentis . 264

E Electione firmae . 310 Enterpleader , what . 374 Entrie , whereof one copercener shall bee the entrie of the rest , 118. gaineth right of inheritance to a bastard eigne , 118. the writ . 261 , 262 Eschete when , 130. of all Cities belongs to the King . 132 Escheator , shall tarrie in his place but one yeare . 241 Error , being common goeth for Law , 41. of the Clarke of the Court amended , 227. if the Sherife suffer a common recouerie it is errour : 19 Estoppell , made by pleas in barre , and replications , 32. but matter in the writ or count doth not . 33 Exchange , warrantie knit thereto by Law , 116. when good and when otherwise . 103. 104 Executours , they must proue the Will . 171. may not refuse after administring , ibid. what duties they must first discharge 172. of an Executor is executor to the first testatour , 173. must pay duties vpon record first . 233 Extinguishment , if a woman marrie the obligor the debt is extinct . 40

F Fealtie what ? 138. Felonie what ? 210 Fee simple of two sorts 121 , is by giuing lands to Maior and and Comminaltie without naming successors 125. Fine for lands aliened without Licence 143. by the defendant in an action of Trespasse 189. Franchise what ? 164. of diuers kinds 166. Frankalmoigne what ? 138 , 139. the Lord must warrant such a tenant 139. Frankmariage what ? 123. Land cannot be giuen in Frankemariage with a man 123. Land so giuen is held by fealty only . 140 , 141. Forfeiture , what shall not be forfeited by attainder of treason 15. of a termour by plucking the inheritance out of him that hath it , 113. by alienation without licence , 142 , 143. of a franchise by misusing it , 164.

G GAuelkind , 78. the custome thereof not changed by hauing a fine and recouerie at Common law 15. Grant , of an infant , 102. 103. by compulsion , 102. canot be of things in action . 107. what things may not be granted ouer , 17.

H HEire what , 116. in what case he shall bee bound by his ancestor , 119. Hereditaments what . 111 , 134. Heresie what , 219. the punishment thereof ibid. Homage , what , and how performed , 142. to the King shall be taken by his Chamberlaine , ibid. ancestrell , 144. incident to Knights seruice , 149. Hotchpot , what , 124. in what cases it shal be , ibid.

I IDeot , the king shal haue to his owne vse all his possession during his ideocie , 95. his grant is void , 102 , 103. Incidents cannot bee seuered , 15. homage incident to knights seruice , 149. Infant , his will nothing worth though he dieth at full age , 12. his grant voyd , 102 : vnlesse for things necessarie , 103. Ioyntenant who , 97. the suruiuour shall haue the whole , ibid. cannot sue one another , 37. Issue what ? 396. Iuris Vtrum , 292. Iurors returned to appeare at the Sherifs turne , 243. trialls by Iurours 399 , 400 , 401. Iusticies , 314.

K King , he is the Head of the Common-wealth , 81. hee cannot be nonsuit , 82. alwaies present in Court , 81. when bound by act of Parliament , 84. 234 all land is holden of him , 132. beeing tenant in Common of an entire Chattel reall , shall haue the whole , 178. how his grant shall bee taken , 101. cannot dispence with an Act of Parliament before it bee made , 235. Knights seruice , homage is incident thereunto , 149.

L LAnd what , 130. what is comprehended vnder that name , 131. Laps what , 90. Law defined , 1. Natiue or positiue , 2. it fauoureth right , 45. Leases , what Leases made by a Corporation are void . 192 Lunaticks , the King shal haue their possessions , 96.

M MAintenance , a sonne may maintain his father , 25. Mayme what , & when 204. Manslaughter what , 212. 215. is pardned by a pardon of murder , 21. Menace what , 201. when a trespas , 202 Mesne what , 140. must acquit the tenant of all seruices against the lord paramount , ib. Misprision what , 209. Murder what , 215. when one may iustifie to kill another 35.

N Necessitie , it saueth the partie from punishment , 35. Notice must be taken by the Court of all apparent faults proceeding from the action , 226. Nusance what , 187. is to be remoued , 188. the Kings Licence doth not make it lawfull , 234. Nuper obijt , 293.

O OAth taken by officers , 230 Office what , 162. a grant thereof to an vnskilfull man is void . ibid. offices for the King . 323 Officers what . 229 Ordinarie , euery Parson must be presented to him . 89. ●ay collate after sixe moneths auoidance 90. by consent of patrons may vnite two Churches , ibid. may administer the goods where no Will is 173. shal be answerable for the intestates debts , 174 immediat officer to Courts for spiritual matters . 237 Oyer of a deed . 366

P PArson , is a corporation , 87. is freed from personal charges , 88. to whom presented , 89 how inducted , ibid. the Church and Churchyard belong to him . 131. One cannot present him selfe to a benefice . 19. chargeable for an annuitie granted by his predecessour . 23 Peeres , where one is a a partie to the action , a Knight must be of the Iurie , 412. shall be tried by his Peeres , ib. exempted from doing suite at Courts . 241 Petie treason , what . 218 how punished , ibid. of diuers sorts . 230 Plaints what , & where holden . 320 Pleading , what . 359. the manner thereof . 360 of seueral sorts . 362. 363. Pleas in barre . 378 Pypowders , that court incident to Faires and Markets . 246. trials there shall be by the Merchants . 412 Possession what . 104. it preuaileth where the right is equall . 30 Possibilitie , may preserue an Act from being void . 33 Prescription , where it maketh right , and where not , 132. is as auaileable as any grant . 104 Presentments . 335 Propertie , not changed by sale vpon the Sabath day . 7. cannot bee had in wilde beasts and foules of the ayre . 176. when the Lord hath propertie in an estray . 177. of goods may be in an alien . 178. when altered by sale of another mans goods . 180. altered by an accord made of a personal thing . 182. deuested by wrongfull taking of goods . 199. not altered by stealth . 210

Q QVare impedit . 274 Queene , shee may haue an action in her owne name . 86. making leases , &c. they shall bee good for her life . 86 she shall not be amerced . 185 Quo warranto . 322 Quod permittat . 274

R RApe , what . 204 Relation , of words to the next antecedent . 8 Release , what . 107. void without priuitie . 115 Remainder , what . 113 Remitter , what , 194. when issue in taile shall bee remitted . 18 Rent , charge what . 15● secke what , ibid. reserued vpon a gift of lands in frank-marriage , when good . 18 Rescous . 310 Reuertion , what . 113 Right , what . 106. a writ of right , 270. of Right patent . 312 Robberie , what . 217

S SEisin , the vse therof . 132. from what time it shall bee alledged . 258 Seruices , are common to all certaine Estates and proper inheritances 138. Deuine Seruice , what . 139. Knights seruice , what . 149 Sherife , suffering a recouerie it is errour . 19. felonie in him to behead one that should bee hanged . 31 Sine assensu capituli . 265 Soccage tenure , what . 147 Sodomitrie , what . 219 Suit of Court , what . 144 cannot be done by deputie , 16. who shal be constreined to do it . 145. must be done at the Sherifes turne by euery one of 12. yeares of age . 241. women & Peeres of the Realm are excepted . 241. 242

T TAles . 414. 415 Termes , when they begin , and end , and their seuerall returnes . 236 Tenement , what . 130. of two sorts . ibid. Testament , what . 167. all chattels may be deuised . ibid. what lands may be deuised . 169. 170 Title what . 106. pretensed titles when they may bee sold . 250 Towne , chargeable with the goods of offendors . 207 Treason what , 220. 221

V VAriance , betweene the writ and obligation . 49 View . 366 Villeine , what 159. his originall , 160. 232. the lord must claim his goods . 159. where the lord may not seise him , 160. his children are villeins , 160. what shal bee an infranchisement , ibid. shall make free land to be villeine land . 23. being an executour may haue an action against his Lord . 27 Vncertaintie maketh the grant void . 49 Void things good to some purpose . 62 Vse , feoffement to the vse of a villeine the Lord may enter . 159 Vsurpation , what . 196 how done . ibid.

W WAger of bat tell shall not be by Cosins in a writ of right . 25 Ward shal be his that can first happe him . 30 Warranty , what word maketh it . 115. knit by Law to euerie exchange . 116 ▪ occasioned by homage auncestrell . 144. which is destroyed by Atturnment . ib. where it maketh a discontinuance . 193 the writ of Warrantia chartae . 278 Wast , the wife shall not be charged for wast done by the husband . 26. iudgement shall not bee giuen in waste , where the waste is but 12. pence . 29 Way granted ouer anothers ground shal bee to the grantee only , 17. & he cannot assigne it ouer , 31. giuen by law to a thing excepted , 63 Women may relieue their husbands though it bee felonie in another , 25. are free from suite of Court , 241. when said to bee waiued , 242. shal be indowed of the best possession of her husband , 26. Wrecke , shall not bee if any liuing Creature escape out of the ship , 177. Writ what , 237. of two sorts , 252. abated for false Latin , Ib.

FINIS .