Law, or a Discourse therof in four books. Written in French by Sir Hen. Finch Kt. His Majesties Serjeant at Law. And done into English by the same author

LAW , Or a Discourse thereof , IN FOUR BOOKS .

Written in French By Sir HEN . FINCH Kt. His Majesties Serjeant at Law .

And done into English by the same Author

Leges nobis charae esse debent , Non propter literas , sed propter earum rerum , quibus descriptu● est , utilitatem , & eorum , qui scripserunt , sapientiam . Cic .

LONDON , Printed by the Assignes of Richard and Edward Atkins Esq For H. Twyford , F. Tyton , J. Bellinger , M. Place , T. Basset , R. Pawlet , S. Heyrick , C. Wilkinson , T. Dring , W. Jacob , C. Harper , J. Leigh , J. Ammery , J. Place , and J. Poole . 1678.

THE EPISTLE To the READER .

THis Book , being formerly published in the proper and genuine Language , had , as it well deserved , good acceptation , the Author and the Work mutually adding to each others Esteem . And herein the Matter was no less profitable , than the Manner usefull and ingenious : So that this only , of all the Books of Law ( as concerning the Method ) is without President . Herein you may find a triple relation distinguished by the various Print . In the first , you have the Maxims and positive grounds of the Law , with whatsoever is added or explaned by Statutes concerning the same , Which taken apart , will afford a continual sensible discourse . In the second is contained the proofs and examples of those Maxims . And because that precious Flower of the Crown , the Kings Prerogative , may not be valued in the hands of a common person , such Cases as concern the King ore severed from the rest .

To impart good is to improve it , which was one cause of the translation of this Book yet is it not thereby made so facile as to deseend to vulgar capacities ; witness the very phrase , the terms of Art , excluding all hope of accrue to Lay-conceited opinions . Neither speaketh it at adventure , but as the Author taught , and no otherwise ; whose fame will affirm , and none will deny , but that he best knew how to fit and adorn his own Work .

Now remaineth only to extenuate the faults , either those material in the Copy , or literal in the Print , the first a judicious Reader is able to supply , a little labour will correct the rest : He that is courteous will remit both . To plot and to perfect at once , is to be more than man . Such was the pain to compose , that the Child wasted its own Parent therein , nevertheless being unhappy preventing the blessing of Perfection , and becoming an Abortive ; But be you the Guardian , so much It invites , the Author merits more . His proposed end was to enrich others by this expression of his love , cover therefore the faults occasioned by an Error of Love , and redeem Him , that for your sake is imbarqued in the common Censure of all Men .

J. L.

THE FIRST BOOK OF LAW .

CHAP. I. Of the Law of Nature .

LAW is an Art of well ordering a Civil society . In Greek it is called {αβγδ} distribuendo , because it gives and distributes right to every one . In Latine it hath its name Lex , not aligando , as some would have it , although Law indeed be vinculum civitatis , nor à legendo , which is to read ; though I find that to please Bracton most :

Bract . lib . 1. ca. 3.

Cicol . 1. de Legis .

but as he that best could tell derives it , a legendo , which is to choose , because of the choice & exquisite wisdom that is in it . Nam ut illi ( saith Tully speaking of the Grecians ) aequitatis , sic nos delectus vim in Lege ponimus , & proprium utrumqu● legis est . The Hebrews call it {αβγδ} ( thorah ) from the root {αβγδ} ( jarah ) which is to teach : because it is the doctrine of truth , as Plato saith in his ninth book {αβγδ} , 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 laws {αβγδ} and golden chain of all good learning , Lex veritatis , Lex Justitiae , Lex sapientiae . Plato l. 4. de Reipub . {αβγδ} . And therefore is not only {αβγδ} , scientia , but {αβγδ} Scientificissima . Whereupon Plato telleth us , Nomen menti consentaneum ( that is , to God , whom the Philosophers call {αβγδ} or mens , which is Truth , Wisdom , and Justice it self ) possidet divina nobis & admirabilis lex . So that the name it self doth shew the Author from whence it came , and as he saith , Qui tantitalem genuere parentes .

Laws are Native or Positive . Tully in his Oration pro Milone , takes us out this Lesson : Est enim haec non scripta sed nata lex , quam non didicimus , accepimus , legimus , verum è natura ipsa arripuimus , hausimus , expressimus : ad quam non docti sed nati , non instituti sed imbuti sumus . In his first book de Legibus he doth again repeat it . Constituendi vero juris ab illa summa Lege capiamus exordium , quae seculis omnibus ante nata est quam scripta Lex ulla : Where this Native Law he calleth summam legem , as that from which all other laws do stream .

Native are those Laws , which are in us of themselves and therefore unchangeable and perpetual .

These are twofold , like those two great lights , which God hath set in the firmament of our heart . Nature and Reason ; For being proper to a man , as he is a man and reasonable creature , they may be divided as reason it self is divided . They that have travelled most in the grounds of Nature , distinguish that excellent faculty of Reason ( which of all earthly creatures man only hath ) into two other faculties , {αβγδ} or the mind , and {αβγδ} or the reasoning part : {αβγδ} they call that faculty of the soul that offereth unto us things clear & lightsome of themselves , without any further reasoning or discourse . By {αβγδ} they mean that faculty of the soul , that by discourse of reason doth deduce & draw one thing from another . From hence the masters and professors of the art of reason , make judgment ( which is the flower of all reason , & in effect nothing else but ratio conjuncta , reason set together ) to be Noeticum or Dianoeticum . We by their example may distinguish those which we call Native Laws , and are the foundation of all other laws , into Primitive , which is that they call Noeticum , we , the law of Nature ; or secondary rules of reason , which is their Dianoeticum , with us the Law of reason . And these very names of {αβγδ} and {αβγδ} or {αβγδ} , which is all one , reason and the discourse os reason , both Plato and Tully speaking of the laws do give them .

The Law of nature is that sovereign reason fixed in mans nature , Lex naturae est ratio summa insita in hominis natura , quae jubet ea quae facienda sunt , prohibetque contraria . which ministreth common principles of good and evil . In effect nothing else but those {αβγδ} or Communes notitiae , which the Philosophers speak of ; That men must live peaceably together : That we are not to do unto another that which we would not have done unto us : That Justice is to be done to all men , and such like . Of this Tully speketh 2. de legibus . Cic . lib . 2. de Leg . Principem illam legem & ultimam mentem esse dicebant . Where he likewise calleth it the high & supream law of all . And in another place , Natura juris ab hominis repetenda natura because the light hereof , as the light of the Sun , shineth most clearly , and in the eyes of all men .

CHAP. II . Of the Law of Reason .

THE Law of reason is that which deduceth principles by the discourse of sound reason . Whereof Tully saith , Ratio cum est in mente hominis confirmata & confecta , lex est : And again , Lex est radius divini luminis : Cic . lib . 1. de Leg . I lat . l. 1. de Legib . and recta ratio summi Jovis . Plato , by way of Poetical fiction doth imagine that there were at the first , two contrary humors that reigned in man , and ( as it were ) two fools of his councel that did rule him , Pleasure and Pain . Each had two other affections to attend them , Hope of good things to come , and Fear of future evils , whereby mens minds were haled and pulled hither and thither , and diversly distracted . Then to govern both , God set in man {αβγδ} , the reasoning or discoursing part , to teach what is good or bad in either ; which he calleth {αβγδ} , the golden & sacred rule of reason . We may term it , that uncorrupt reason which Adam had at the first in full perfection : but through Adams fall ( that brought sin into the world , and the fruit of sin , Blindness and corruption ) that excellent image of reason is now so wonderfully defaced , even in the best and wisest , ●ledge●hat the light of this , as the light of the Moon , shineth more obscurely : But yet shi●ledge●eth so that from it all the other Laws re●ledge●eive their Light .

And hereupon are grounded more or ●ledge●ess clearly , divers rules of reason , that ●ledge●very where go for undoubted Oracles , ●ledge●hich ( confirmed by judgement , learning , ●ledge●nd much experience , and rightly & well ●ledge●pplied ) are so many stars and shining ●ledge●ights , to direct our course in the arguing ●ledge●f any case : yea such is their singular and ●ledge●ncomparable use , that , as Lords para●ledge●ount , they rule & over-rule the grounds ●ledge●hemselves . And rather than any of these ●ledge●ightly understood ) should sail , the very maxims and principles of the positive law will yield , as to a higher and more perfect Law .

CHAP. III . Of rules taken from other learnings .

THE rules of reason are of two sorts some taken from foreign learnings , bot●redge● divine and humane : the rest proper to La●redge● it self .

Of the first sort are the principles , an●redge● sound conclusions from foreign learnings ▪ Out of the best and very bowels of Divin●redge●ty , Grammer , Logick ; also from Philosophy natural , Political , Oeconomicks , Morral , though in our reports and year book they come not under the same terms , y●redge● the things which there you find are th●redge● same ; for the Sparks of all Sciences in th●redge● world are raked up in the ashes of th●redge● Law : Cic . l. 1. de legibus . and well doth one say , Non ex Praetoris edictis , neque a 12 tabulis , sed penitus ●redge● intima philosophia haurienda juris discipl●na est . He that will take the whole bod●redge● ef the law before him , and go really an●redge● judicially to work , must not lay the fou●redge●dation of his building in Estates , Tenure●redge● the gift of Writs , and such like , but at tho●redge● current and sound principles which ou●redge● books are full of .

First from Divinity , the doctrine of Religion , Arg. lib . 9. de Civitat . dei . the head and Master-piece of all the rest , whereof S. Augustine saith truly , Omnium legum est inanis censura , nisi divinae legis imaginem gerat . From hence we have these two rules .

To such Laws of the Church as have warrant in holy Scripture , 34 H. 6. 40. Prisot . A●iels leys que eux de St. eglice ont en aunetent escripture , covient pur nous a donor credence : car ceo est common ley , sur que touts manner leys sont fondues , 4 Eliz . 265. our Law giveth credence .

1. The Sabboth day is no day for law Cases . Upon a fine levied 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 erroneous , for the Justices may not sit upon that day , but it is a day exempt from such business by the Common law for the solemnity of it , to the intent that all people may apply themselves that day to prayer and serving of God .

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

If a Writ of Scire facias out of the Common place bear Teste upon a Sunday , 1 Eliz . Dy . 168. it is error , because that is not Di●s juridicus in Banco .

No sale upon a Sunday shall be said a sale in market overt to alter the property . 12 E. 4. 8.

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

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

32 H. 8. Dy . 46. b . An Endictment of murder , found in this sort , That Eliz . fuit in pace &c. quosque A. vir praefat . Eliz . de D. in Com . S. Yeoman , did kill her , is good ; for the addition Yeoman , must of necessity referr to the husband , because the woman cannot be a Yeoman ; but an endictment quosque Alicia S. de D. in Com . S. uxor I. S. Spinster , &c. is not good against Alice S. for there Spinster being an indifferent addition , both for man and woman , must referr to I.S. which is the next antecedent , and so the woman hath no addition . 9 E. 4. 48. So of an endictment against I.S. serviens I.D. de D. in Com . Midd . Butcher : This is not good , for Servant is no addition ; and Butcher referreth to the Master , which is the next antecedent .

From Logick ; In the Maxim of causes and effects .

3. The cause ceasing , the effect doth likewise cease .

9 E. 4. 8. b . The King granteth an Office to one at will , and ten pound fee during life pro officio illo , now if the King put him from his office , the fee shall cease .

The Executor , 7 Eliz . 293. b . nor husband ( after the death of his wife gardein in soccage ) shall retain the Wardship , for the Gardein hath it not to his own use , but to the benefit of the Heir : and the Executor , or husband have not the affection which the Testator or his wife had , which was the cause that the Law gave them the Wardship .

If a stroke be given the first day of May , 13 Eliz . 401. and the King pardon him the second 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 , 13 E. 4. 10. b . pur cause de gard , and after maketh livery to the first Ward , now the second Ward shall not sue livery .

If two Coparceners make a Lease reserving a rent , they shall have this rent in common , as they have the reversion : But if afterwards they grant the reversion , excepting the rent , then they shall be Joyntenants of the rent .

It is no principal challenge to a Juror , 14 H. 7. 2. that he hath married the parties mother , if she be dead without issue , for the cause of favour is removed .

4. Things are construed according to that which was the cause thereof .

44 E. 3. 14. b . A man makes me swear to bring him money to such a place , or else he will kill me , I bring it him accordingly : This is felony in him . 14 Ass. pl. 20. So if he make me swear to surrender my estate unto him , and I do so afterwards , this is a disseisin to me .

21 E. 4. 68. b . One imprisoned till he be content to make an obligation at another place , and afterwards he doth so , being at large , yet he shall avoid it by duress of imprisonment .

3 E. 3. 84. Outlary in trespass is no forfeiture of land , as outlary of felony is : for though the not appearing be the cause of outlary in both ; yet the force of the outlary shall be esteemed according to the hainousness of the offence , which is the principal cause and foundation of the process .

A man and feme sole have a villein , and afterwards enter marry , and the villein purchaseth land , they shall not have the land by entierties , but by moieties joyntly , or in common , as they had the villein .

5. According to that which was the beginning of it .

33 Ass. pl. 7. If a Servant ( departed out of his Masters service ) kill his Master upon a malice that he bare him whilst he was his servant , it is petty treason .

A. erects a Shop upon the Kings Freehold , the King grants the land to B. in fee ; 10 Eliz . Dy . 266. b . A. before entry or seisor of the shop by the Kings Patentee , continueth his possession and dieth seised . This is no descent to toll the Patentees entry : for by his first erecting of the Shop , he could gain nothing against the King .

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

The Attorney of one that is disseised cannot make claim off from the land , Litlot . if the disseisee himself durst have gone to the land .

The Bailiff of a disseisor shall not say , 28 Ass. pl. 4. That the Plaintiff never had any thing in the land , for the Master himself shall not have that plea , because he is not Tenant of the Freehold .

The Servant shall be estopped to say , 2 E. 4. 16. The Freehold is his Masters , by recovery against his Master , though the servant himself be a stranger to it , for he shall not be in better condition than he in whose right he claimeth .

7. Things are dissolved as they be contracted .

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

5 H. 7. 33. In an annuity growing by prescription 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 .

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

8. Things grounded upon an ill and void beginning cannot have a good perfection .

10 El. 344. An Infant , or a feme covert make their 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 delivereth it to a stranger , to be delivered over to the disseisor as his deed , such a day : before which day , the disseisor disseiseth him of another acre in D. and then the release is delivered over to him , yet nothing of the right of this third acre passeth by the release .

9. He that claimeth per amount , a thing shall never take benefit nor hurt by it .

Two Joyntenants , 2 & 3 El. Dy . 187. one makes a lease for years of his moity , reserving a rent , and dyeth . The surviving Joyntenant shall have the reversion of his moity , but not the rent , for he cometh in by the first feoffor , and not under his companion . So of the wife , where the husband being lessee for years in her right , maketh a lease of part of the term , reserving a rent .

An Executor recovereth and dieth intestate , administration of the goods of the first testator is committed to I.S. I.S. shall not sue execution upon this recovery .

Dower cannot be assigned , reserving a rent , or with a remainder over , for she is in from the husband , and not from him that assigneth dower .

10. According to the end .

Vouchee cometh into the Court to be viewed , and being viewed , 31 E. 3. Joynder on aid , 10. is awarded of full age ; yet he shall not be driven to answer , till he come in to the same intent by other Process .

The vouchee , 19 E. 4. 3. upon a Grand cape ad valentiam , shall not lose the land , though he cannot save his default , for the process is only to this end to have him to appear . 50 Ass. pl. 2.

A man that is warned by Writ to answer to a matter , shall not be driven te answer any other matter than is contained in that Writ , though the King be party , As if by off●ce it be found , that lands in chief descended to I. S. a fool natural , and that A. occupieth them , whereby a Scire facias goeth out against A. to answer why the lands should not be seised into the Kings hands for the Ideocy of I.S.A. commeth in and pleads , That I.S. when he was of perfect memory , made a release to one B. who infeoffed A. This is good enough without shewing any licence of alienation to discharge himself from the purchasing of those lands .

In the maxim of Subjects and Adjuncts .

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

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

A disseisor of lands in ancient demesn the Lord confirms unto him to hold at the Common Law , 49 E. 3. 8. the disseisee reentreth ; now the land shall be ancient demesn again : for the estare ( whereupon the confirmation should inure ) is defeated .

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

12. Things incident cannot be severed .

Estovers , 12 El. 381. or wood granted to be burnt in such a house , shall go to him that hath the house , by whatsoever title : for one is inseparably incident to the other .

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

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

A Court baron is incident to a mannor , 19 H. 8. Br. incidents 34. and Court of Pipowders to a Fair : therefore one cannot grant the mannor or fair , reserving those courts . Where one holdeth of a man to keep his Castle , 31 E. 3. Ass. 441. the Lord cannot grant his Castle guard , reserving the Castle .

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

The custom of Gavelkind is not changed , though a fine or recovery be had of the same at the Common Law : for this is a custome by reason of the land , and therefore runneth always with the land .

6. E. 6. Dy . 72. h . But otherwise it is of lands in ancient demesn , partible among the males : for there the custom runneth not with the land simply , but by reason of the ancient demesn : and therefore because the nature of the land is changed by the fine or recovery from ancient demesn to land at the Common Law , the custom of parting it among the males is also gone .

F.N.B. 21. b . An erroneous recovery had of lands in Borough english , the puisne son shall have a Writ of Error , because the land it self goeth to him . So shall all the sons of lands in Gavelkind .

42 E. 3. 3. Two Coparceners make partition , and one covenants with the other to acquit the land : now if the Covenantee alien his part , the Alienee shall have a writ of Covenant .

Personal Things .

14. Cannot be done by another .

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

22 E. 4. 34 , A man cannot excuse himself of a contempt ( as of not serving the Kings Process ) by Attorny , but in proper person .

15. Cannot be granted over , as matters of pleasure , ease , trust , and authority .

A license to hunt in my Park , 12 H. 7. 25. to go to Church over my ground , to come into my house , to eat and drink with me , cannot be granted over . 7 H. 4. 36. So of a way granted for life over my ground .

The Patentee for life of an office of trust , 11 E. 4.1 . as to be a Chamberlain of the Exchequer , Squire of the body cannot assign it , unless it be specially limited 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. Baylywick of Husbandry , &c. for life , cannot be granted over , because they are offices that require skill and diligence .

A. licenseth B. to do an act : Br. licences 25. B. cannot grant this licence to another .

A Warrant of Attorney made to one to deliver seisin , 19 H. 8. 10. he cannot grant this his authority over .

16. Die with the person .

When a corporal hurt or dammage is done to a man , as to beat him , 12 H. 8. 12. &c. if he or the party beaten die , the action is gone .

Lessor covenants to pay quit-rents , 1 , & 2. T. & 114. during the term , and dieth , his executors shall not pay them : for it is a personal Covenant , which dieth with the person .

Among the disagreeable arguments .

First from those that differ only in a certain respect and reason not in deed and in nature .

Things do inure diversly , according to the diversity of

17. Time .

26 Ass. pl. 66. Lands given in Frank-marriage , reserving a rent , the reservation is void till the fourth degree past , and afterwards good .

Person , viz.

18. The same person .

14 H. 8. 6. One that hath a rent-charge going of the wives lands , releaseth it to the husband and his heirs : the husband yet shall not have it , but it shall enure him by way of extinguishment only , as seised in right of his wife .

19. Several persons .

1 & 2. P & M. 104. A man makes a lease of a Mannor , except an acre , this acre is no part of the Mannor , as to the lessor , but as to him that hath right to demand the Mannor , by an eigne title , it remaineth parcel , and therefore he shall make no foreprise in his Writ .

11 E. 4. 2. If Tenant in tail and his issue disseise the discontinuee of Tenant in tail ; and tenant in tail die , whereby the lands descend to the issue : Now he shall be remitted , and shall be in as tenant in tail against every stranger , and darreign the first warranty ; but not as against the discontinuee , because he was Particeps Criminis .

Then from Relatives ,

20. No man can do an act to himself .

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

No more can a man summon himself . 8 H. 6 29. 3 El. Dy . 188.

And therefore if the Sheriff suffer a common recovery , it is error , because he cannot summon himself .

A man cannot be both Judge and party in a suit . 4 M. B. Com . 25.

And therefore if a Justice of the common place be made a Justice of the Kings Bench , though it be but hac vice , it determineth his patent for the Common place . For if he should be judge of both Benches together , he should control his own judgments : for if the Common place err , it shall be reformed in the Kings Bench .

Of Comparisons .

From the equals .

21. Things are to be construed , Secundum aequalitatem rationis .

27 l. Co● . 3.136 . Sir Wil. Herberts case . Upon a recognisance acknowledged by the Ancestor , or a Judgment in an action of debt given against him : if he die seised of two Acres , whereof one holden in Borough English , or having issue two daughters which make partition ; or if he die without issue , whereby part of his land descendeth to the heir of his fathers part , and part to the heir on the part of the mother : in all these cases if one only be charged , he shall have contribution against the other : for they are in aequali jure .

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

Bract . l. c . 3. And this is a logical vertue , a kind of equity , as Bracton calleth it , where he saith , Aequitas est rerum convenientia , quae paribus in causis paria jura desiderat , & omnia bene coaequiparat : & dicitur aequitas quasi aequalitas , Whose nature is to amplifie enlarge , and add to the Letter of the Law .

Especially this shineth and sheweth forth it self in the exposition of Statutes , by extending things there provided to mischiefs in the like degrees , whereof the examples every w●ere are pregnant , and in guiding the grounds and maxims of things , that newly start up , by the rule of the Common Law .

Uses at the Common Law were 23 H. 8. F●t . 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 be of them , and of lands in Borough English , the use shall descend to the puisne . And now also these uses being turned into estates , shall be demeaned in all respects as estates in possession .

So when Coo . 4. 12. Custom createth inheritance in Copyhold lands , and maketh the lands descendable , then shall the Law direct the descents according to the maxims and rules of the Common Law , to have a possessio fratris , and such like : but not in collateral things , as Tenancy by courtesie Dower , descent to toll an entry , &c.

From the greater and the less .

22. The greater doth contain the less .

By a pardon of murder , manslaughter is pardoned .

An attaint supposing a verdict to have passed before two Justices , whereas it passed before four , is good enough .

A recovery pleaded of three Acres , where it was of six , is good enough .

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

A Copy-holder of a mannor where the custom giveth liberty to demise in see , may demise it for any less estate , without other prescription .

Where the custom is , that a man shall not devise his lands for any higher estate than for term of life , 18 El. 38. yet if a devise be in fee , and the devisee claim but for life , the devise is good .

3 & 4 P. & M. Dy . 150. b . By the Statute 32 Hen . 8. that giveth power to devise two parts of ones lands , a devise of the whole had been good for 2 parts , though the Statute 34 & 35. H. 8. of explanations had not been made .

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

21 H. 75. A man hath liberties by prescription , & 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 .

33 H. 8. Dy . 50. If an offence , which is murder at the Common Law be made high Treason , no appeal shall lie of it , because the offence of murder is drowned , and it is punishable as high treason only , whereof no appeal lieth .

24. The more worthy thing draweth to it things of less worthiness .

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

10 El. 323. b . A Box ensealed with charters , it shall go to the Heir with the charters , and not to the Executors .

A base Mine where there is Ore , shall be the Kings for the worthiness of the Ore .

The body of a man is more worthy than land , 3 El. 238. therefore land shall follow the nature of the person .

As a villain shall make free land to be villain land , but villain land shall not make a free man to be a villain .

So the Kings land which he hath in his natural capacity , shall de demeaned according to the priviledge and prerogatives of his body royal .

And therefore

25. Things accessary are of the nature of the principal .

A servant procureth another to kill his master : 40 Ass. pl. 25. this is no petty Treason in the servant , because it is but felony in the other which is the principal .

A Parson grants an annuity with a Nomine poenae , 7 H. 6. 19. b . the successor shall be charged with the Nomine poenae due in his predecessors life , and not his executors .

The profits of the office of a Filizer , 27 H. 8. Dy . 7. b . &c. cannot be put in execution upon a recognizance , Statute , &c. because the office it self , being an office of trust , cannot .

Tythe is not payable of O●ks usually topped and lopped ▪ 26 El. Molim . ( though it be every seven or eight years ) for the branches are of the nature of the principal ( that is to say ) the Oak it self , for which no Tithe is to be paid .

26. A mans own words are void , when the Law speaketh as much .

30 Ass. pl. 8. Lands given to two , & uni eorum diutius viventi , they make partition , and one dyeth , yet the lessor shall have again the moity of him that dyeth , for uni eorum diutius viventi are but idle words , because ( without them ) the Joyntenant , by course of Law , it to have all , if he do survive .

From the rule of method .

In things of Formality .

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

In a Writ the The rule of the Register . general shall be put in demand , and in plaint before the special : as land before pree , pasture , wood , juncary , marish , &c. wood before alders , willows , &c.

28. The more worthy is to be set before the less worthy .

Ibid . The entire thing shall be demanded before the moity part or parts .

Ibid . The thing of greater dignity before that which is of less ; as a mease before land , a Castle before a messuage or mannor .

In a Replevin if it be of two Cattels , Ibid . one quick and the other dead , the living thing shall be first demanded .

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

Next are the precepts of Natural Philosophy .

29. Law respecteth the bonds of Nature .

Affection for the provision for the heirs males that one shall ingender , brotherly love , &c. are good considerations to raise a use ; but long acquaintance and familiarity are not .

The son may maintain his Father , and one brother another .

Brothers or Cofins shall not wage battel in a Writ of Right .

A Statute that maketh it felony to receive or give meat and drink to one that committeth such and such an offence knowing it , stretcheth not to a woman that receiveth or giveth meat and drink to her husband in such a case .

30. The Law judgeth and esteemeth of all according to their nature : both persons and their ages : things , actions , and the time of the doing them .

In persons .

It looketh to the excellency of some , and giveth them singular priviledges and preheminencies above the rest . as to the King , the Qeen his wife , Noblemen , and Peers of the Realm . Also unto them of the Church .

It tendreth the weakness and debilities of others : As of

Men out of the Realm , or in prison , Femes Covert ( and thereforr favoureth them for their dowers ) infants , men unlettered , Ideots out of their right mind , or without all understanding ) as those that are born dumb , deaf , and blind , or having other imperfections .

If a disseisor die seised , the disseisee being all the while within age , Covert baron in prison or out of the Realm , it shall be no descent to toll the entry of the disseise .

Upon a Lease made to a husband and wife , she shall not be charged after the Husbands death , for waste 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 over of another by xx . d . and J.S. release to the husband ( so as now the husband holds by xx d . ) the wife being endowed of this land , shall hold only by the third part of iij d . and not of xx d .

An Infant , Ideot , and a man of non sanae memoriae , may enter , or have an action to avoid their feoffments .

If a dumb person bring an action , he shall plead by prochein amy .

31. Strangers not parties nor privies .

Lessee for years grants a rent-charge , 1 El. 198. & surrenders , yet the rent shall be paid during the years .

So if he in the reversion grant a Rent-charge during the term , and then the lessee surrendreth unto him , he shall pay the rent during the term : for a stranger ( that is , the grantee of the rent ) for his benefit shall say , that the term continueth , and that it is determined .

And therefore

Things done in anothers right .

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

And a villain in such case against his Lord , for they recover not their own but to anothers use .

32. It disfavoureth other some .

Aliens neither born within the Realm , nor free denisens , that they shall not participate of the priviledges of natural born Subjects .

Especially aliens that are enemies .

Alien enemies shall not have so much as a personal Action , which other Aliens may .

An obligation made to an alien enemy shall go unto the King .

Any body may seise the goods of an alien enemy to his own use .

Touching their ages .

33. It holdeth .

xxi . Their full age to make good any act they do .

xiv . Their age of discretion .

And therefore

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

xii . To bind the woman :

ix . To deserve her dower .

In things .

34. It respecteth every one according to worthiness . As

Life and liberty most ; the person above his possessions ; freehold and inheritance more than it doth chattels ; real chattels more than personal .

None shall have judgment to recover in an action of waste , where the waste cometh but to 12 d or such a petty sum , for De minimis non curat lex .

A Lease for life , the remainder for years , the remainder over in fee ; an action of waste lieth for him in the remainder , against lessee for life : for the mean estate for years is not regarded . Otherwise it were if the immediate estate of the remainder were an estate for life .

A villain infranchised for an hour , is for ever . So infranchised upon condition , the condition is void , and the infranchisement absolutely good .

If a man for fear and simplicity will confess himself guilty of a Felony , yet the Judge must not record that confession , but suffer him to plead not guilty ; and that is in favorem vitae .

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

3 E. 3. 88. In avowry or annuity , aid shall not be of a person , if the Plaintiff be seised by the hands of the same person , because it is of the persons own wrong to deny it .

Otherwise in a Cessavit , for that is in the right for the land .

14 H. 7. 5. Keb . In an action of Trespass against tenant for life , who pleads villenage in the Plaintiff , and the Plaintiff is found frank and no villain , yet he in the reversion is not estopped by this verdict : For the thing it self whereupon the reversion dependeth is not in demand , and the Plaintiff shall recover only damages : neither can he in the reversion have a Writ of Error or attaint upon it .

Otherwise it is in a Nativo habendo : for there the right of villenage cometh in question , and he in the reversion may have an error or attaint .

Yet it favoureth

36. Possession , where the right is equal .

A man purchaseth at one time several lands holden of several Lords by Knights service , and dieth : the Lord that first can hap the Wardship of his heir , shall have it .

8 El. 296. Husband and wife purchase socage land unto them and the heirs of their body , and having issue within fourteen years of age : Now if the Grand-mother of the part of the mother of the issue do first seise the body , she shall have 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 License to hunt in my Park , 13 H. 7. 13. or walk in my Orchard , extends but to himself , not to his servants , nor other in his company , for it is but a thing of pleasure , otherwise it is of a license to hunt , kill , and carry away the Deer , for that is a matter of profit .

Way granted to Church over my land , 12 H. 7. 25. b . extends not to any other but himself , for it is but an easement .

A reversion granted to two joyntly , and the Tenant atturns to one , it is a void atturnment .

If the Sheriff behead one that should be hanged , it is felony . 11. H. 7. 12. b .

The King licenseth one to alien the third part of his land ; and he alieneth all , 35 H. 6. 58. b . it is a void alienation for all .

A Lease is made to A. and B. for their lives , A. dieth , 4 E. 6. 68. b . B. shall have 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 utterly determined , for that is a limitation .

38. Therefore these may be countermanded , so cannot those .

9 E. 4. 4. b . A License to come to my house to spea●redge● with me : 1 E. 5. 2. Goods bailed over , to delive●redge● to I.S. or 28 H. 8. Dy . 22. to bestow in alms Park . d . : A lette●redge● of Attorney to deliver seisin : all thes●redge● may be countermanded before they b●redge● done .

14 E. 4. 1. But if I present I.S. to a Church , I cannot after vary and present a new , for kind of interest passeth out of me .

Pa●k . 19. h . So if I deliver an obligation as scroll into a Strangers hand , to be delivered to the Obligee , upon condition performed , for the Obligee is as it were part or privy to the delivery .

39. Matters of substance more than matters of circumstance .

21 H. 7. 24. b . Pleas in bar , and replications ( thoug●redge● the Plaintiff be afterwards nonsuit ) ma●redge● an estopple , for they are express alleg●redge●tions and material . As in debt upon an o●redge●ligation , if the defendant plead in bar●redge● acquittance made at D. or if the defenda●redge● plead an acquittance , and the Plaintiff ●redge●ply , that it was made by duress of impriso●redge●ment at D. now in another action , neith●redge● the Defendant shall plead that the acqui●redge●tance , nor the Plaintiff that the duress w●redge● at another place : But a matter in the w●redge● or count , makes no estopple , for they are but supposals .

As in a formidon and claim by descent from I.S. or a mortdancester , as son and heir to I.S. yet in another formidon he may claim from I.D. and shall not be estopped .

No more shall recitals make any estopple , for they are not material . 33 H. 6. 10. b . As where A. reciting that he is seised in fee of the Mannor of D. granteth a rent out of it to B. this shall not estop A. to say that he had nothing in the Mannor .

39. Things executed and done more than things executory , and to do .

A feme disseisers taketh a husband , 32 H. 8. Br. Daretnement 18. the disseisee releaseth to the husband , afterward a divorce is had for precontract : yet the release remaineth good , because it was executed .

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

Otherwise it is of his will declared after .

Possibility of things .

And therefore

40. Nothing to be void that by possibility may be good .

15 H. 7. 10. Lands given to a married man and another mans wife , and the the heirs of their two bodies , is a good estate in tail ( and that presently executed as some think ) for the possibility that they may enter marry .

1 H. 4. 1. A messualty is given in tail , reserving a rent , this is good : for the tenancy may escheat to the donee , and then the donor shall distrain for all his arrearages .

41 E. 3. 11. b . A man hath issue a daughter , and leaveth his wife priviment in seint : the wife may detain the charters of her husbands lands from the daughter , for the possibility that it may be a son that she goeth withall .

42. A mutual recompence .

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

Cestui qui use may grant his use without consideration , as he may his horse or other chattel : but he cannot raise a use 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 annuity shall be maintained by a Parson against a Vicar , upon an Ordinance of the Ordinary , if there be Quid pro qao .

In Actions .

43. It yieldeth favour , when for the doing of it there is ,

Necessity .

Funeral expences shall first of all be discharged by executors . Br. executor 172.

A man may milk a Cow that he hath by return irreplegiable . And that is for the necessity .

A man in his own defence for the necessity of the saving of his life , 4 E. 6. 19. and a champion in a Writ of right for the necessity of trial , may Kill another .

Whither refer

44. Conformity , which is a kind of necessity .

Rent must be demanded , though no man be upon the land to pay it .

Where an infant in ward marrieth himself , Br. for . Mar. 12. yet to have the forfeiture of the marriage , the Lord must tender him one .

He that pleadeth in the avoidance of a fine , 40 E. 3. 30. b . That the parties to the Fine had nothing , must shew who had .

But it is not traversable , but only shewed for conformity .

45. Of colour .

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

22 Ass. pl. 64. Where a Court hath no colour to hold plea ( as a Court Baron of land not holden 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 original ; yet the judgment rendred is only voidable by writ of Error .

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

46. It prizeth acts in law higher than those that are done by the party .

49 E. 3. 15. Upon the grant of a rent , the Tenant cannot atturn , nor put the grantee in possession by an ox or such like , because it is another thing : but upon the recovery of rent , the Sheriff may .

L●t●let . Parceners may compel partition , so cannot Joyn tenants , nor Tenants in Common .

2 & 3 P. & M , 134. b . For equality of partition among Coparceners , a rent granted shall be a fee simple , without words ( heirs ) & issuing out of the lands , without so expressing it in the grant .

2. H. 7. 5. Also things that otherwise cannot , may pass without deed , as a rent , 21 E. 3. 7. reversion seigniory , way , avowson , 11 H. 4. 3. composition to present by turn . 28 H. 8. Dy . 29. Fitz . N. B. 34

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

So cannot Joyntenants , nor Tenants in common .

46. It reputeth that men will always deal for their own best advantage .

And therefore

47. Believeth against the party whatsoever is to his own prejudice .

For the time of doing things :

It countenanceth more

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

A disseisin and descent in time of war , Litt . 97. shall not toll the entry of the disseisee .

Usurpation in time of war gaineth no possession , 7 E. 3. darrein presentment 2. Fitz . N. B. 31. I. but the other may have an assize of darrein presentment ( that notwithstanding ) if his ancestor presented last before .

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

1 Mar. 172. b . Rent payable at a day the party hath all the day till night to pay it : but if it be a great sum , as 500 or 1000 l. he must be ready as long before the Sun set , as the money may be told : for the other is not bound to tell it in the night .

A man must not distrain 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 war , and recovered from the enemy by another of the Kings subjects , the owner shall have them again , if he make fresh suit before the Sun set , else not .

51. Sometimes a whole year .

The Lord loseth his villain for ever , if a villain flee into ancient demesn , and there continue a year and a day , without claim of the Lord .

Recovery in a Writ of right , and fines executed , bind all persons though they have right , that lay not to their claim within a year .

the King cannot grant a protection to endure longer than a year .

52. The third offence it esteemeth more heinous .

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

Political precepts follow .

The Law favoureth

53. Things for the Commonweal .

A man may justifie the doing of a wrong in things that sound for the Commonweal . 29 H 8. Dy . 36 b .

As in time of war ; to make Bulwarks in another mans soyl without licence . To rase ones house on fire , in safegard of the neighbours houses .

A Sheriff may break open the doors of ones house to take a felon . But not to serve a Capias in an action of Debt or Trespass : for that is a particular case , and not for the Commonweal .

Fishermen may justifie their coming upon the land adjoyning to the sea , 8 E. 4. 18. b . to dry their nets : for fishing is for the Commonwealth and sustenance of all the Realm .

A milstone that is lifted up to be picked and beaten , cannot be distrained , 14 H. 8. 25. for it remains parcel of the mill , which is a thing for the Commonwealth .

22 E. 4.49 . Things brought into an Inn or Fair , or Market ; or cloth lying in a Taylors shop , or a horse that is a shoing , shall not be distrained .

Publick quiet .

And therefore

54. Common error goeth for a Law .

2 R. 3.7 . An acquittance made by a Mayor , in his own name only ( where the Town is incorporate by the name of Mayor , Sheriff , and Burgesses ) shall be allowed for good , if there be an hundred precedents and more of like acquittances . And that is for common quietness .

Ma●xels case . f . 2. Whether a common recovery be a Bar unto an estate tail or no , is not to be disputed , because a great part of the inheritance of the Realm doth depend upon it .

Of this kind are those Oeconomicks .

The husband and wife are one person .

And therefore

The wife is of the same condition with her husband .

Frank , if he be free , Fitz . N . B 78. Abridgment of assiz●s per Br. den●s●n 2. Denison if he be an Englishman , though she were a neif before or an alien born .

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

If the 21 H , 7. b . 29. woman marry with her obligor , the debt is extinct , and she shall never have action against the Co-obligor ( if another were bound with him ) because the suit against her husband by enter-marriage was suspended . And therefore being a personal action , and suspended against one it is discharged against both .

So if a seme sole bail goods to one , and marry with the bail .

Likewise the husband cannot inseoff his wife , Park . 40. but upon a feoffment made unto her by a stranger , he may deliver seisin unto her by letter of attorney ; for thereby himself giveth nothing .

56. Vpon a joynt purchase during the coverture , either of them taketh the whole .

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

And if a feoffment be made to the husband and wife , and a third person ; Littlet . 65. 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 personal things she hath are meerly his : but real things , whether land , rents , &c. or chattels real , and things in action he hath only in her right : yet so as of real chattels and things in action , he may dispose at his pleasure , and shall have the real chattels if he overlive . Of things in action her self may dispose by will .

Littl . 1. 148. If Tenant in tail enfeoff a woman and die , and his issue within age take her to wife , he shall be remitted , a●d the woman now hath nothing : for he cannot sue any formed on in this case , unless he will sue against himself , because by the enter-marriage himself is seised in her right .

14 Eliz . Ploy . 418. If one that hath a lease for years , grant his term to a feme Covert , and another , or if a feme soul and another be Joynt tenants for years , and she take a husband , yet the estate of the feme and joynture doth continue so as the survivor of the wife , or of the other shall have the whole : and if a stranger oust them , her husband and she must joyn in an ejectione firmae , and the feme shall have judgement as well as the husband : And 1 Eliz . Ploy 191. in pleading he may say , That they are possessed in her righ● . Neither c●n the husband , where the wife hath a term for years , either devise it to another by his will ( for she hath an estate in it before and at the time of his death , 14 El●z . Ploy . 419. which preventeth the devisee ) or grant a rent-charge out of it , 14 Eliz Ploy . Ibid . for she surviving is remitted to the term , and therefore shall avoid the charge , but by an express act he might in his life time have given it away . But if a woman having chattels personal take a husband , the law div●steth the property out of her , and vesteth it in her husband only .

And if goods be given to a feme Covert , and another , the joynture is streight way severed , 11 H. 7. 29. and the husband and the other are Tenants in common ; and the executors of the husband shall have a●l the goods that were his wives .

But in an action of debt upon ar●erages of an accompt ( where one was receiver to the feme whilst she was sole ) they both must joyn , 16 E. 48. and that although the auditors were assigned during the coverture ; for the very cause of action , th●t is , the receipt ( whereunto the assig●ment of auditors is but a thing pursuant ) was in her right ; yet the husba●ds release of an obligation made to the feme , 7 H. 6. 1● or where g●●ds were taken from her whilst she was s●le , shall be good ●gainst the wife if he dy . But if he dy without making such a release , the wise shall have an action upon the obligation and not the Executors of the husband Likewise the Wife surviving , 39 H. 6 27. or her executors if she dy , shall have those things i●redge● action , and not the husband ; or she ma●redge● make her husband her executor , and the●redge● he shall recover them to her use . 1 El. Ploy . 191. But ●redge● lease for years , which the wife hath , shal●redge● be the husbands , if she dy before him : fo●redge● that is a thing in possession and not i●redge● action .

59. Her will is become his will , and subject unto it .

Upon a feoffment to a feme Cover●redge● she taketh nothing , unless her husban●redge● will agree ; and where one is bound to e●redge●feoff the husband and wife , the husband refusal is the refusal of them both ; bu●redge● where the husband and wife are joynt purchasers , the husband may make e feoffment and livery upon the land , which shal●redge● work a discontinuance , though the wil●redge● be in presence upon the land and will no●redge● agree . If they bargain and sell the wive●redge● land by Indenture , and the vendee gran●redge● unto them for the same a yearly rent , he●redge● acceptance of this rent after her husband●redge● death , doth not bar her of the land , although the acceptance be an agreement t● the bargain , but the bargain being but ●redge● contract , is the bargain of the husban●redge● only , and not of the wife : if she mak●redge● a release , obligation , or such like , it is meerly void . If both her husband and she bail goods to one , they shall not joyn in an action of detinue , for it is only his bailment , and void as unto her . In an accompt upon a receipt , by the hands of the Plaintiffs wife , the defendant may wage his law ; hereupon it is that the wife can never answer in any action without her husband . And if in an action of Trespass against them , the wife come in by cepi corpus , and the husband doth not appear , she must be let at large without any mainprise till her husband do appear ; but he appearing , may answer without her , therefore a protection cast by the husband serveth for the wife also , because she cannot answer without him .

Last come the Moral Rules .

60. The Law favoureth right .

When two are in a house , Littlet . 158. or other tenements , and one lay claim by one title , the other by another title , the Law adjudgeth him in possession that hath the right to have the tenements .

And therefore

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

4. 7. 40. A Man that is outlawed may bring a●redge● action to reverse it , and outlawry there i●redge● no plea .

F.N.B. 69. b . The Tenant shall have a replevin ●gainst the Lord that did wrongfully distrain , though the beasts be come back t●redge● himself , because he can have no action o●redge● trespass against him .

11 H 7. 10. A man ( after that judgement is passe●redge● against him ) shall plead against the King●redge● Charter of pardon , or any such thing do●redge● mean betwixt the verdict and the judgement , because against the King he ca●redge● have no Audita querela . Otherwise it is against a common person .

Hateth wrong .

So that

62. No man shall take a benefit of hi● own wrong .

31 H. 6. bar . 60. A man is bound to appear before the Justices at a certain day , at which day he is in prison at the parties suit , so as he cannot come , the bond is saved . Otherwise i●redge● is , if he were in prison for felony , or any other misdemeanor , for that is his ow●redge● fault .

27 H. 8. 11. & Br. Covert . 2. An Infants appeal shall not stay till his full age , for the defendant shall not have advantage of his own wrong .

13 H. 7. 1. One in execution scapes , and the Goal●redge●gers him again , the party if he will , may have him to remain in execution for him still , for the escape is his own wrong .

And therefore ,

63. Of it self prejudiceth no man .

If a feoffment be made to two joyntly , 48 E. 3. 17. one of them cannot deraign the warranty without the other . Yet if a villain and another purchase joyntly , and the Lord of the Villain enter into a moity , he may deraign the warranty alone , for his moity : for there the severance groweth by act in law .

He that misdemeaneth authority , 12 E. 48. that law giveth him ( as if one come into a Tavern , and will not go out in seasonable time ; or distrain for rent , and kill the distress ) Shall be a wrong doer ab initio .

Otherwise it is , if he misdemean an authority that another giveth him . As if I lend my horse to one to ride to York , and he ride further , yet the riding to York shall not be unlawful . Nor a general action of Trespass lieth not against him upon an accord upon the case .

Especially for things that cannot be imputed to his own folly .

The Lord Chancellors servant impleaded at the common law claimeth priviledge of the Chancery ; 35 H. 6. 3. and before it be discussed whether he shall have it or no , the Lord Chancellor dyeth ; yet his priviledge is allowable still , for the act of the Cour●redge● to advise of it , shall not prejudice him .

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

And therefore

64. Driveth not a man to shew that which by intendment he knoweth not .

2 Mar. 128. A man may plead that he was chosen 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 discern the certain number , and yet easie to see who had the greater number . 10 E. 4. 15.

One bound in an obligation to serve I.S. for seven years , in omnibus mandatis eju●redge● licitis , shall plead that he did serve then lawfully , without shewing what service o●redge● in what commandment : 4 E. 6. 46. for no servant ca●redge● remember all .

A man may averr a thing to be done by covin , without shewing how the covin was●redge● for covin is a secret thing contrived between two or three , to the prejudice of another .

Truth .

And therefore ,

65. It disfavoureth

Fraud and covin .

If a woman that hath good title of ●ower , 18 H. 8. 5. cause I. S. to disseise the tenant of the land , and recovereth her dower against I. S. yet this is no good estate of dower in her , for she is privy to an unlawful act , which should be the means of her estate .

66. Vncertain , whereby truth is inveigled .

A man grants all his trees and wood upon B●acre , that may reasonably be spared ; 1 Mar. Dy . 91 this is a void grant , unless it be referred to a third persons judgement , what may be spared .

If two several Writs of one self same thing , against one self same man , Manxels case . fol. 10. b . be returned at one self same time , both shall abate .

67. Variance .

If the Writ vary from the obligation or other specialty in name , sirname , 11 E. 4. 2. or such like , in an action of debt or annuity brought upon it ; or the Count vary from the Writ , as in an action of debt of xx l. and declare but a debt of x l. both shall abate . 8 E. 4. 2. b .

An 4 ass . pl. 2. essoyn or 32 H. 6. 3. protection varying from the original Writ in the quantity of the Tenency , 7 H. 6. 22. or the name of the party , shall be quashed : and the Chancellors servant bringing a Writ of priviledge varying from the original Writ ( as if the original be a Writ of trespass , and the priviledge in placito debiti , or the original an action of Debt of 44 l. and the Writ of priviledge in placito debiti of 42 l. ) it shall be disallowed .

Departure also , when one fortifieth not the matter of his plea that went before , but cometh in with a new matter , is a kind of variance , and maketh the plea naught . As if the rejoynder be a matter puisne underneath the matter of his bar , and not above , and going before it : As in an action of Trespass , the defendant pleadeth a descent unto him of the land , the plaintiff saith , that after the descent the defendant infeoffed him : Now if the defendant rejoyn , that the feoffment was upon condition , and he entered for the condition broken ; this is a departure : for the matter of the bar ( that is , the descent ) is before the matter of the rejoynder , that is to say , the entry for the condition broken , whereby the feoffment is avoided . So if in an assize the defendant pleadeth the feoffment of I. S. and the plaintiff make title to himself by descent , and that he was disseised by I. S. who infeoffed the defendant ; or that he infeoffed I.S. upon condition , who b●ake the condition , and afterwards infeoffed the defendant , &c. Now if the defendant say , that after the disseisin ( or condition broken ) and after the feoffment of I. S. to the defendant , the plaintiff did release to the defendant , or confirm the state of the defendant , this is a departure ; for that is a matter that groweth after the feoffment pleaded in bar . But if he plead such a release or confirmation from the plaintiff to I. S. that is no departure ; for it is a matter before the feoffment , or in an action of trespass for goods , if the defendant entitle himself by the gift of I. S. and the plaintiff saith that himself was possessed till I. S. took them from him and gave them to the defendant . Now the defendant may say , that after the taking , the plaintiff gave them to I. S. who gave them to the defendant : For although the defendant might have pleaded these things at the beginning ; yet , in as much as it is pursuing , and fortifieth his bar , and no puisne matter undernearh the title of his bar , but eigne , and above the matter of his bar , therefore it is no departure . So a plea in a bar which is intendible at the Common Law , cannot be maintained by a matter of custom , or by Statute Law . As in an assize the tenant pleadeth in bar a devise unto himself of the land , being devisable by the custom : the plaintiff saith , that the Devisor was within age at the time of the Devisee . Now if the Tenant say , that by the custom there , an Infant of fifteen years of age may make a devise : this is a departure . For the custom pleaded in bar shall be intended of those that may make a devise by the Common Law . So if in an action of trespass the defendant plead in bar a release for fifty years from a house of Religion , and the plaintiff avoid it , by reason it was made within a year 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 provided , that all such leases shall be good for xxi years , and so maintain the Lease to be good for so many years , this is a departure . Or if one plead a Fine , and that being avoided because the parties to the fine had nothing , will maintain the Fine to be good by the Statute 11 R. 3. because he that levied the Fine was Cestui qui ●se .

68. Contrariety .

21 E. 4. 36. An Obligation is made s●lvendum nunquam . This solvendum is void , and the thing presently due .

4 E. 4. 29. A. is bound to B. Solvendum eidem A. This is a good Obligation , and the Solvendum void : for the plaintif may declare upon a Solvendum to himself .

11 H. 7. 21 , b . In a trespass de domo fr●cta & muris ejusdem domus fractis . The defendant cannot plead not guilty to the breaking of the house , & justifie the breaking of the walls : for the house and walls are all one , and he cannot of the same thing both justifie and plead not guilty ; for by the justification , he acknowledgeth himself guilty . So one is contrary to another .

A Feoffment in fee is made of two acres , 2 & 3. P. & M. 153. unto two men habendum one acre to one man , and the other acre to the other man . This is a void habendum ; for the premisses give him an interest through both acres , and the habendum excludeth him from having any thing to do in one .

A lease of a Mannor excepting the services , the exception is void ; for it is parcel of the thing let .

And therefore

69. It will not drive a man to justifie that he goeth about to defeat .

He that bringeth an assize of the mastership of a Chappel against I.S. shall not need to name I. S. the master of the Chappel , 10 H. 7. 9. because the plaintiff i● to disprove his interest .

Diligence .

And therefore

70. It hateth

Folly and Negligence .

After a recovery in a Writ of right , 5 E. 3. 222. Heris . if a stranger that hath right , lay not to his claim within a year and a day , he is barred : for ever . For vigilantibus & non dormientibus jura subve niunt .

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

Speeding of mens causes .

And therefore

71. It hateth 〈◇〉 Delays .

3 H. 6. 15. b . He that pleadeth a Record in delay ( as to prove the plaintiff excommunicate ) must have it ready to shew . Otherwise it is , if he plead it in bar .

12 H. 7. 3. In dilatory pleas both defendants must joyn .

8 H. 7. 9. A plea in bar that is dilatory , must be good to every common intent .

72. Vnnecessary circumstances ,

2 H. 6. 1. b . One that is in Court ready to joyn with the defendant , may do it without Process . As the vouchee the Plaintiffs lessor being prayed in aid of , when the def . in a replevin avoweth upon him , or the mesne when the Lord paramount avoweth upon him : But joynder in aid cannot be by Attorney without Process .

One that is a debtor to the King of Record in the Exchequer , 1 H. 6. 4. b . if he be seen in the Court , may be brought in to answer without Process .

73. Circuit of action .

When a father infeoffeth his son and heir with warranty , and dieth ; Manx●ls case . fol. 7. b . Now the son in a praecipe brought against him , may vouch the feoffee of his father : for the Law will not suffer to vouch himself , and when he cometh in as vouchee , then to deraign the first Warranty for the circuit of vouchee .

Upon the grant of a Ward with warranty , the defendant in a Writ of Right of Ward may rebutt the plaintiff by that warranty , and shall not be driven to bring an action of Covenant for avoiding circuit of action .

So in an action of waste upon a Lease for years by deed , and in the same deed the lessor granteth to the lessee , that he shall not be impeached of waste , the lessee may plead this in an action of waste .

The Law construeth things with equity and moderation .

And therefore

74. Restraineth a general act , if there be any mischief or inconvenience in it .

Tenant for life lets to another for life Lit . 120. without expressing whose lives , it shall be taken for the lessors own life ; for else it were a forfeiture of his estate .

A house that hath Copyholds and other lands usually occupied with it , is lett for years , with the lands appertaining ; yet the Copyholds pass not without special naming : for then it were a forfeiture of them .

A Corody granted to one and his servant to sit at his Mess , he cannot bring a servant that hath some filthy or noisom disease .

Estovera granted out of a Mannor , the grantee shall not cut down fruit trees .

A Common granted to one for all his beasts , yet he shall not have Common for Goats , nor Geese , nor other beast , not Commonable .

A feoffment of all his lands in the town of D , with Common in omnibu● terri● suis , this Common shall be intended in D. only , and not elsewhere .

75. Moderateth the strictness of the Law it self .

By abridging , diminishing , and taking away the severity of it , and mollifying the hardness thereof . A moral vertue as Plowden calleth , and may appear by Aristotle , who treating of it , defineth it , A certain correction of the Law , wherein it is any way wanting , because of the generality of it .

It is no trespass for a man to beat his Apprentice , which is reasonable correction .

No more is it to carry away a mans wife against his will , to a lawful end . As to sue a divorce against her husband , or to have the peace of him before a Justice of peace .

A great part of the depth and learning of the Law ( if you go to the primitive reason of it ) standeth upon this and that other kind of equity that went before . Of both which Plowden in that case discourseth at large , and well setteth forth the nature of them , so far as concerneth the interpretations of Statute● . But they have a further and more shining use in the exposition of Common Law it self , as in the cases before put .

To the best .

And therefore

76. Every act to be lawful , when it standeth indifferent to be lawful or not .

If the Lessor come upon the ground , it shall be intended , that he came to see if waste were done .

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

In an action of Trespass , 11 H. 7. 5. two issues are joyned triable in two counties , one in London , another in Middlesex only ( without saying which of the issues it should try ; ) this shall be taken to try the issue in Mid . only : for so the venire facias is lawful , and not in both counties , which is against law . And therefore it is a discontinuance of the issue in London , and not a miscontinuance .

CHAP. IV . Of Law constructions that are natural .

THus far of Rules drawn from other Sciences . There follow those that are proper to our selves , which we call Law constructions . And are natural or feigned .

Of the first sort we have two notable grounds .

Law construeth things

Reasonably .

And therefore

77. With a reasonable intent .

A feoffment by deed of a Mannor , with avowson appendant , and no livery made , the avowson passeth not : yet they may pass without livery , but the meaning was , the mannor and it should pass together .

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

One reciting by his deed , 21 H. 7. 5. that where by prescription he hath u●ed to find a chaplain , because some controversie hath grown of it , granted by the same deed to do it ; this determineth not the prescription , for the intent of the deed ( reciting the prescription ) was to confirm it , and not to make a new grant .

78. According to the effect .

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

But a deed delivered by a feme Covert , or a release delivered to one that hath nothing in the land , may be delivered again ( viz. ) when she cometh to be sole , or the party to have somewhat in the Land : for the first delivery was meerly void , and took no effect at all .

So that

79. He that cannot have the effect of a thing shall not have the thing it self .

The King shall not be receiv●d upon default of Tenant for life , 4 Eliz . 241. because the demand cannot have the effect of the receit , viz. to count against him ; which none can do against the King , but to sue him by petition .

Two Abbots cannot be Joyntenants : Litt . for they cannot have the effect of it , which is survivorship .

80. To the most validity .

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

An annuity granted pro consilio impendendo , or a feoffment ad erudiendum filium , or ad solvendum 10 s . is a condition , without words conditional , because else the party hath no remedy .

And therefore ,

81. When many joyn in act , it maketh it his act that may do it .

2 & 3 El. Dy . 191. A use limited to begin when ones eldest Son is married by I. S. the Son ( being in ward to the King ) is married by the King and I. S. yet n● use riseth , for it is the sole marriage of the King .

A Patron of a Church suffereth a usurpation of six months , and then grants an annuity to I.S. till he do promote him to a benefice . After he and the usurper joyn in a presentment of I. S. yet the annuity is not determined .

Littlet . The Disseisee and the heir of the disseisor , in by descent , m●ke a feoffment by one deed and L●very ; this is the feoffment of the heir only , and confirmation of the disseisee .

82. When two titles concur , the best is preferred .

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

83. Things to be done by him that hath most skill to do them .

An Obligation upon condition , 9 E. 4. 4. that a 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 Tenor of it , tunable with other Bells .

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

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

A Merchant agreeth with the Kings collectors , 4 E. 6. 17● that his Merchandize shall be weighed at the Kings beam , and the King shall have his subsidie as it riseth , the Collector must weigh it .

Issues joyned must be tried by them that have most skil ( videlice● ) 4 El. 230. b . An issue upon the law , by the Justices learned in the law .

Littlet . 21. Attendance upon the King ( Scotland ) in war xi . days ( as tenant by escuage must ) by certificate of the Kings Marshal .

11 E. 4. 3. 6. Disseisin of an office in the common-place , or raising of a Reco●d there , by the Filizers and Attornies , attendant in that Court .

84. Void things good to some purpose .

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

10 H. 7. 22. A feoffment upon condition to be void , as if it had never been , yet the feoffee shall have an action of Trespass ( after the ●eoffors entry for the condition broken ) for a trespass done by the Feoffor before .

85. One thing to enure as another .

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

25 H. 7. 7. One grants the third presentment to an advowson , and dieth , his heir shall present twice , and his wise shall have the third for her dower , and so the grantee shall have but the fourth .

The King pardoneth one the making of a Bridge ; this is only good for the fine : 37 H. 6. 4. but yet he must make the Bridge , because the Kings Subjects have 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 giveth him a way to come to it .

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

Upon a grant of Trees , 2 R. 2. bar . 397. the Grantee may come upon the land to cut them down , and with his carriage to carry them through the land . And the Vendee of all ones fishes in his pond , may justifie the coming upon the banks 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 devises . But if there were no other means to take them , he might dig a trench .

87. Strongest against him that doth them .

Two Tenants in common grant a rent of twenty shillings , 2 & 3. P. & M. 140. l. & 161. b . the grantee shall have forty shillings . But if they reserve twenty shillings upon a lease , they shall have only one twenty shillings .

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

And therefore

88. A man shall not qualifie his own act .

21 H. 7. 2. 3. b . The obligee releaseth his debt till Michaelmas , the debt is gone for ever .

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

17 El. Dy . 339. A parson makes a Lease for xl . years , the Patron and Ordinary confirm it for xx . This is a good confirmation for the whole xl . years .

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

89. Special agreement .

40 E. 3. 5. Lessee for years is excused for waste , if the houses be blown down by sudden storm or tempest . But in that case if he covenant to keep reparations , an action of Covenant lieth against him .

Park . 55. f . & 56. g . Two Joyntenants exchange an acre of land with another , they should hold the land taken in exchange joyntly . But if they exchange to have that acre in common between them , they shall be Tenants in common .

90. Special words .

A lease reserving a rent , 27 H. 8. 19. the heir of the lessor , after his death , shall have the rent : other wise , if the lease be reserving to the lessor .

A feoffment in fee to one and his heirs with warranty to the feoffee . 30 H. 8. Dy . 42. b . This warranty goeth not to the heir .

91. Surplusage of words .

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

In a valore maritagii , 9 El. Dy . 255. b . and count of a tender of marriage to the def . The tender is traversable , if it were not before .

An information upon a statute made such a day , and the day mistaken , is naught , 6 E. 6. 84. though he need not to have recited the day .

In an action of debt by I. S. Parson of D. no such Town as D. is a good plea : yet he needed not to have named himself parson of D.

A writ of forging diversa facta & munimenta , and count but of one ; the Writ shall abate : yet he needed not to have said in his Writ , but only factum .

CHAP. V. Of Fictions in Law .

A Feigned construction , which we call a a fiction in law , is when in a similitudinary sort the law construeth a thing otherwise than it is in truth . And is of the person , thing , action , and the circumstances thereof , time and place .

Of the Person .

92. Things done by another are as if they were done by ones self .

27 H. 8. 24. A promise to ones wife in consideration of a thing to be performed by the husband , if the husband upon his coming home agree , and perform the consideration ; he may plead this promise to be made to himself .

If my servant sell my goods , and I agree , I shall have an Action of Debt , supposing he bought of me .

25 El. Earl of Leic . c . A lease for years is made , and a letter of Attorney to deliver possession to the lessee : if the Attorney deliver possession to the Attorney of the Lessee : it is a good possession , and pursuing to his authority .

Of the thing we have these two rules .

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

One shall recover in value against the heir ( upon the ancestors warranty ) lands which the heir took in exchange for lands descended . 18 H. 3. rec . va . 26.

A Mannor is given by fine , 48 E. 3. 11. a Scire facias lieth of a Tenancy that afterwards escheated .

If a Mannor descend to an heir within age , and after a tenancy escheateth , 6 H. 4. 1. he shall have his age of it in a Praecipe of the Mannor ; it shall be assets by descent , & he may vouch of this tenancy by reason of a warranty made of the Mannor ; for the tenancy cometh in lieu of the services .

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

The maxim of a Bastard eigne is , 14 H. 4. 9. that the mulier puisne must make an entry upon him , or else he gaineth the right : yet a continual claim made by the mulier puisn● destroyeth his right : for it amounteth to an entry .

A Lease for a thousand days , 14 H. 8. 13. is a lease for years .

A lease for years and a release amounteth to a feoffment . Brook .

If a man license one to occupy his land 5 H. 7. 1. for a year . This is a lease for a year .

And therefore

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

18 El. Dy . 36. One grants a rent-charge , without saying pro se & hoeredibus , and dieth . The grantee brings a Writ of annuity against the heir , and hath judgment to recover : yet he may distrain afterwards : for the heir was never chargeable . So that upon the matter , it makes no election .

20 El. Dy . 362. A man makes a lease for years of a house with certain implements , reserving a rent , the Executors after the Testators death receive the rent , yet it is no assets in their hands : for the whole rent belongeth to the heir .

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

1 E. 6. Br. 18. A man seised in fee , let s for ten years , & after selleth the land , and taketh it back to him and his wife , & then the husband and wife lett it for twenty years , reserving a rent : the husband dieth , the wife accepts this rent during the first ten years . 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 .

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

To the circumstance of time these two rules pertain .

Priority of time is imagined in things ,

97. Done together .

One deviseth a term for years to his son , 21 El. 540. and that the wife shall have it during the sons minority . This is first a devise to his wife , and after to the son when he cometh of full age .

One grants his reversion of lands , and by the same deed granteth a rent out of these lands to another , and delivereth the deed to both at one self same time . Yet it shall inure first as a grant of the rent to the one , and then as a grant of the reversion to the other .

98. Happening in an instant .

A mesualty descends to the Tenant of the land , 11 H. 7. 11. though the mesualty be at the same instant extinct , yet the tenant shall pay relief if he be of full age , or be in ward , if he be within age ( viz. ) where it is holden by Knights service .

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

9 E. 4. 1 A man exchangeth land for a rent-charge out of the same land . This is good enough 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 immediately from that time .

Lit . 92. When the wife is endowed by the heir of her husbands lands , she shall be said to be in immediately from the husband . And therefore if the husband were a disseisor , and the heir in by descent , yet the disseisee may enter upon the wife .

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

These rules of common reason do many times cross and encounter one another , which is the greatest difficulty that we find in the arguing of our cases . But to help this , the general ground is according to the former rule ( 〈◇〉 ) 〈◇〉 that

100. Those prevail that carry the more excellent and perfect reason with them .

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

Things executed where the husband is seised in the right of his wife , 32 H. 8. Br. Der . 18. shall not be avoided by divorce : as waste committed , receit of rent , wards , or presentments that have fallen , gifts made of the wifes goods , &c. Rule 39. But otherwise it is in matters of inheritance , as if the husband discontinue and charge the wifes lands , release or manumiss villains , &c. Rule 30.

A feoffment is made with warranty , 28 E. 3. 20. b . Br. gar . 27. the feoffee dieth having issue two daughters , who make partition of the land . This warranty shall be divided , notwithstanding the partition which is their own act , and therefore not so much favoured , Rule 46. For the land cometh to them originally by act in law , that is by descent , Rule 5.

If the Chancellor die before his servants priviledge discussed in bank , 35 H. 6. 3. yet it shall be allowed , notwithstanding the cause of his priviledge now be gone . ( contrary 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 prejudice him where no folly was in himself . Rule 63.

9 El. Dy . 264. b . The husband possessed of a term in the right of his wife , maketh a lease of parcel , rendering a rent , the wife shall have the residue of the term , but not the rent , Rule 9. notwithstanding it come in lieu of the land , Rule 93. and be as it were an accessary unto it , Rule 25.

Things may be done in the night time , notwithstanding , Rule 49. where there is a kind of necessity of doing them then , Rule 44. as arbitrement made and delivered in writing , the last day after the Sun set , is good enough : for judgments and arbitrements require long advice .

11 H. 7. 5. So may goods be distrained in the night time for dammage feasant .

Park . 41. If one of the Chapter infeoff Dean and Chapter , by that he himself shall take by his own livery , Rule 18. notwithstanding Rule 20.

13 H. 8. 15. A man may do an act to himself , notwithstanding Rule 2● . where the law cannot do otherwise , Rule 18. as a feme tenant in so●age may endow her self , an executor pay himself , &c. Counts and declarations must be certain , Rule 66. yet things which contain a necessary implication are good enough , 14 El. Dy . 347. Rule 94. as in an ejectione firmae , & 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 upon the Statute of usury ; & count that the defendant took per viam , & medium corruptae mutationis , where it should be accomodationis , yet it is good enough .

Corporal service as suit of Court , 7 H. 4. 9. &c. cannot be done by another , Rule . 14. notwithstanding Rule 92.

Matters of trust or authority , &c. cannot be granted over ; because being strictly taken , they are esteemed to belong to the person , & therefore guided by Rule , 15. Yet an office of skill and diligence to one and his heirs , may be granted over . 12 El. 379. b . So upon a Letter of Attorney to deliver seisin to A. he may deliver it to the Attorney of A. for that upon the matter is a possession delivered to himself , Rule 21.

Tenant in tail makes a feoffment with warranty , 25 El. Earl of Leic . case . and leaveth to descend a reversion in fee simple expectant upon an estate tail , which I.S. hath ; this is no assets , for it may be tolled by a common recovery ( and therefore the law esteemeth it as if it were so . ) But it seemeth otherwise of a reversion depending upon an estate tail of land which the issue himself hath , for it were the folly of the issue in tail to cut it off , Rule 70.

CHAP. VI . Of Laws positive .

AND so much of Laws Native .

The Law of nature and of reason , or the Law of reason primary and secundary , with the rules framed and collected thereupon . Which three are as the Sun and the Moon , and the seven Stars , to give light to all the positive laws of the world .

Positive are laws framed by their light , and from thence come the grounds and maxims of all Common Law : for that which we call Common Law , is not a word new and strange , or barbarous , and proper to our selves , and the law that we profess , as some unlearnedly would have it , but the right term for all other Laws . So Euripides mentioneth the Common Laws of Greece : and Plato doth define it , speaking of the reasoning faculty , saith he , which being taken up by the common consent of a Countrey , is called Law ; and a non he nameth it the golden & sacred rule of reason , which we call Common Law . The place is very notable , it openeth the original and first beginning of the Common Law , it sheweth the antiquity of the name , in effect all one with that which since and by a later name is called Jus civile ( quod quisque popul'ipse sibi jus constituit , as Justinian speaketh ) it teacheth Common Law to be nothing else but common reason : but what reason ? not that which every one doth frame unto himself ; but refined reason , Quae cum adolevit atque perfecta est nominatur rite sapientia , as Tully saith , and as Plato there hath it , when it cometh to be opinionor decretum . How : generally received by the consent of all .

Therefore Laws positive , which are directly contrary to the former , lose their force , and are no Laws at all .

As those which are contrary to the Law of nature . Such was that of the Egyptians , to turn women to merchandize , and commonwealth affairs , and men to keep within doors . And of the Thracians , which accounted idleness an honest thing , and stealing very comme●dable . So if it were made a law , that men might commit adultery , forge false deeds , &c. And this is manifest unto all men . But because the Law of reason is known only to such as are able to judge aright , and that but imperfectly ( as before was shewed ) therefore here the case is harder , what laws may be said agreeable , and what repugnant thereunto . Only in general ( which is sufficient for this place and purpose ) it is truly said , and all men must agree , that law in deed repugnant to the law of reason , are aswell void , as those that cross the law of nature .

Positive Laws are sundry and divers , according to the several and divers constitutions of particular places and countries .

Such among the Jews were their Politicals , delivered by Moses , which so far as they be positive , bind us not unto them . Such were the antient law of the Grecians , the xii . tables , and civil laws of the Romans , and Such are the common Laws of England . And almost so many people so many Laws . And as those Laws are divers one from another , so one and the self same Laws may be altered and changed in themselves , so long as no alteration is permitted against the two main Laws of Nature and Reason .

THE SECOND BOOK OF LAW .

CHAP. I. Of the Common Law of England , whereof the parts of the Realm , and of the persons in it of Custom and Prerogative .

THE Common Law of England is a Law used time out of mind , or by prescription throughout the Realm . Litt . 38. That prescription is a usage time out of mind . For to plead that there is a Custom among Merchants throughout the Realm , to assign Licences over , is not good , inasmuch as that which is current throughout the Realm , is Common Law , not Custome . And under the name of the Realm of England , it is plain that 8 R. 2. conc . claim . 13. Scotland and Wales 2 Mar. 29 much less 20 H 68. A fine with Proclamations according to 4 H. 7. shall not bar one in Ireland . Ireland , are not included . Neither is the main Sea , that is to say , beneath the low water mark , parcel of the Realm ; for there the Admirals jurisdiction ( which hath nothing to do of things within the Realm ) doth only meddle and not the Common Law . But between the high water mark and the low water mark , 22 Ass. pl. 93. The Statute 1 R. 2. c . 5. proveth the Common Law to be so . where by ordinary and natutal course the Sea ebbs and flowes , the Common Law and the Admiralty have divisum imperium , one upon the water when it is full Sea ; the other upon the land , when it is an ebb .

Sir Hen . Constables . Co. 107. Statutes 27 H. 8. cap . 26. Incorporateth Wales into England .

12 H. 7. 18. Fineùx . The whole Realm is divided into several Counties or Shires . And those again into certain Villages or Towns : Lit . consuetudo ex rationabili causa usitata privat . Communem legem . in many of which , as also in divers manners , whereof it cometh to speak afterwards .

There be special usuages time out of mind altering the common law , which we call Customs .

Lit . 46. & 58. As in Kent , the Custom of Gavelkind for all the heirs males to inherit alike , and the wife not to lose her dower , 8 H. 3. prescript . 60. 5 E. 4. 30. nor the heir his Land , though the husband or ancestor be hanged for Felony .

In London , if the Debtor be sugitive , that the Creditor before the day of payment may arrest him to find better surety . Lit . 37. In many Boroughs the youngest Son to inherit all . The wife to have for her dower all her husbands lands ; the lands there to be divisible by will .

A County is a part of the Realm , entirely governed by one Sheriff under the King , but all subject to the general government of the Realm . And therefore every County is as it were , an entire body of it self , so that upon a feoffment of lands in many Towns in one County , livery of seisin made in one parcel , in any one of the Towns in the name of all , sufficeth for all the lands in all the other Towns within the same County . But upon a feoffment of lands in divers Counties , there must be livery of seisin in every County .

Also an exchange of lands in one and the same County is good by paroll ; Lit . 13. but in divers it must be by deed indented .

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

An Enquest also shall not take notice of things done in another County ; but because all are under one general government , therefore things done in several Shires shall be tried by a joynder of Counties , the Jury that trieth the principal may take notice of a thing accessary , though it be in another Shire . 21 H. 6. 51. As in an action of Trespass , if the defendant plead an arbitrement in a Foreign county , and issue be taken upon it , and found for the Plaintiff : the Jury there must assess dammages for the Trespass done in the other County .

9 E. 4. 40. Likewise in an action of debt against an Executor , who pleadeth , ne unque administ . and giveth in evidence a deed of gift made unto him by the Testator in his life time in another County , the Jury must find it upon pain of attaint . So of a release pleaded to be made in another County in a writ of right .

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

18 H. 6. 13. A Town is a precinct anciently containing ten families , whereupon in some Countries they are called Tythings , within one of which Tythings every man must be dwelling , and find sureties for his good behavior , else he that taketh him into his house , is to be amerced in the Leet .

Divers of these Towns have Hamlets in them , some special places there be in every County out of any Town or Hamlet

The persons within the Realm are to be considered either as one entire or as particular persons .

As one entire body it consisteth of the King and common persons his Subjects .

The King is the head of the Commonwealth , immediate under God . 1 H. 7. 10.

And therefore carrying Gods stamp and mark among men , and being , as one may say , a God upon earth , as God is a King in Heaven : hath a shadow of the excellencies that are in God , in a similitudinary sort given him . Gods excellencies and honour stand partly in things incommunicable unto other , partly in such as after a sort he maketh his creatures partakers of both : which the King is said to have , some in truth , others by fiction , all by similitude from the divine perfection .

The first thing in God , and most proper to his sacred Majesty , is the infiniteness of his nature ; who , as the philosopher elegantly saith , only is that Circle , cujus centrum estubique peripheria nusquam . So say our books , that the King in a manner is every where , and present in all his Courts .

In a writ of error upon a false Judgment given for the King , F. N. B. 21. b . no Scire facias shall go forth ad audiendum errores , for the King is always present in Court ; & that is the cause that the form of entry in all suits 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 , 25 H. 6. br . nonsuit 68. 3 El. 231. Dominus Rex per Henricum Hobart Attornatum suum , &c. And therefore it is also , that the King cannot be non suit ; that all acts of Parliament , which concern the King or General , and the Court must take notice without pleading of them , for he is in all , and all have their part in him .

A second thing proper unto God , is the divine perfection . In the King no imperfect thing can be thought , no 35 H. 6. 26. negligence , or laches , no folly , no infamy , no stain or corruption of blood . So as 3 Eliz . ●13 . nonage avoideth not his grant , though it be of lands which he hath in his natural capacity .

By 1 H. 7. 4. his taking of the Imperial Crown upon him , all attainder of his person are purged ipso facto .

The excellencies which God bestoweth upon his creatures ( for I will touch no more but those that the books of our Law do speak of , and such as are leading rules to the cases that you shall find there argued & debated ) are first , Majesty , Sovereignty , Power , Perpetuity ; and then that noble complement of Justice and truth .

Bract . lib . 1. cap . 8. 2 H. 7. grants 33. The Law , saith Bracton , gives unto the King Dominationem & Potestatem .

He hath absolute power over all : for by a clause of non obstante he may dispense with a Statute Law ( and that if he recite the Statute ) though the Statute say , such dispensations shall be meerly void .

The King cannot take , he cannot part from any thing but by matter of record . Bract . ibid . And that is for the Majesty os his person . Stam . prae . 731. His supream Sovereignty makes him immediate under God . 7 E. 4. 17. Omnis quidem sub eo & ipse sub nullo nisi tantum sub Deo , 50 Ass. pl. 1. 18 Eliz . 498. saith Bract . It makes all lands to be holden of him , every surrender unto him to be good , no action to lie against him , for who shall command the King ?

Nay , 4 E. 4. 21. 1 El. 223 , & 240. 3 Eliz . 239. acts of Parliament do not bind him , unless they concern the Commonwealth , or he be specially named . Neither can the King be Joyntenant with any , though it be of land , or other things that he hath in his body natural : For none can be equal with him . And therefore if two purchase land to them and their heirs , and one be made King , they are now no more Joyntenants , but tenants in Common . Lastly for perpetuity , the King never dieth , 4 El. 234. but in Law it is said the demise of the King , and a gift unto the King , without saying more , trencheth to his successors . 4 Mar. 177. Potentia injuriae est impotentia naturae .

To come to the other two ; the power of God is always joyned with justice & truth ; for to do wrong , to deal untruly , is not omnipotency , but a thing of weakness and impotency : so it is with the King , he cannot be a 4 E. 4. 25. disseisor , he can be no wrong-doer ; for he is all Justice , he shall never be F.N.B. 143. b . estopped . Judgment final in a Writ of right , doth not conclude him , 20 E. 3. Dr. 15. F.N.B. 31. D ▪ for he is all truth , Veritas & Justicia , saith Bract . Circa solium ejus . They are the two supporters that do uphold his Crown .

Therefore also he hath a prerogative in all things that are not injurious to the Subject . As he may create Corporations , Dean and Chapter , Major and Commonalty , &c. make Denisens : and it remaineth good , though he be declared an usurper after ( but no continuance in England can make a Denisen , though it be from his childhood , and he sworn to the King in Leets ) he may reserve rent unto a stranger , grant a condition or thing in action , give in fee simple , upon condition not to alien , except out of his grant things incident , as Courts and perquisits of Courts upon the grant of a Mannor , sue in what Court he will : as to have a quare impedit or Writ of Escheat , returnable in the Kings Bench , or a quare incumbravit there , though the record of the Recovery be in the common place . He may alledge in his Court or plea , double matter , or as many matters as he will , and the party must answer to them all , and then the King shall take issue upon any one at his pleasure . He may wave his issue , and demur in Law , and contrariwise , so it be the same term , but not in another term , for so he might do it infinitly . He may challenge a Juror without shewing cause , or the array , because the Sheriff that made it , was cosin to the party . But no challenge shall be of a Juror against him . He is not bound to make a demand ( or tender ) where a lease is made , reserving a rent with a clause of re-entry : hath the property of all goods that are in nullius bonis , shall have the Tythes of Forrests and places out of any parish , take advantage of other mens places , as ●o have a Writ to the Bishop , if title a●pear for him , though he be a stranger to the Action . All the Daughters and Heirs ( where the ancestor held in chief ) must do homage to him : where ( if they hold of a common person ) the eldest only must do it : where he is to have a benefit , a man may plead more pleas than once , pur darreine continuance , as outlary in an action of debt , &c. And many prerogatives more he hath , which in their several places shall come more prope●ly to be considered .

But in them all it must be remembred , 12 H. 7. 19. That the Kings prerogative stretcheth not to the doing of any wrong ; for it groweth wholly from the reason of the common Law , & is as it were a finger of that hand , although so much differing in fashion ( as the head and the body can never be of one proportion ) that if you set them in parallels together , you shall find it to be law almost in every case of the King , that is law in no case of a subject . And yet for all that , they are not two but one law . Only the Common Law is as the primum mobile , which draws all the Planets in their contrary course .

In regard of the King , the Queen his wife is participant of divers prerogatives above other women .

3 El. 231. As in an act of Parliament making all gifts and grants unto her , or by her ( whether between the King and her , or between her & any other person ) to be of the same effect , as if it were between other subjects , without any benefit thereby to come unto the King , need not be pleaded , but the Court and all the Realm must take knowledge of it , because she is a publick person , in whom all the subjects of the Realm have interest , being the Kings wife , as they have in the King himself . Likewise she may have in her self the possession of personal things during her life , so as she may 49 ass . pl. 8. have an action in her own name alone , take lands and other possessions from the King by Charter 3 H. 7. 14. make leases , feoffments , &c. which shall be good during her life , but afterward the King shall have them , and divers other prerogatives she hath , which follow in their place .

His Subjects are the members of the Commonwealth , and are Barons and Commons .

Barons we call the Peers of the Realm . For every Duke and Earl is Peer of the Realm , because he hath a Barony belonging unto him . Otherwise Duke and Earl are but names 14 H. 4. 7. of dig●ity and of honour only , and 21 E. 484. 8 H. 6. 10. parcel of ones name .

So as in every action which he bringeth , or is brought against him , he must be named Earl or Duke , as he is , 32 H. 6. 29. else the Writ shall abate . But the name of Baron is the name of ones place and calling , which shall not be expressed in any Writ . And where addition is necessary , as by the Statute of 1 H. 5. yet he shall never be impleaded by the name of Baron , for it is not any dignity , but must be named Knight if he be one , Stamp . prer . 154. 7 H. 8. Cr. 184. Hunnes case by all the Justices of England . or Esquire if he be no Knight . And touching Bishops , who enjoy the name of Lords of the Parliament , they have the same in respect of ancient Baronies annexed to their dignity .

All the rest are Commons .

The particular persons are natural persons , or bodies politick .

The natural person is every man .

A body politick is a body in fiction of Law that endureth in perpetual succession . 14 H. 8. 3. Fin . And such is the King alone , and by himself considered : and a Parson , the Law calleth him the Rector of a Church , for the King hath two capacities , 4 El. 234. a body natural ( wherein he may inherit from any of his ancestors , or purchase to him and his heirs , and retain the same , notwithstanding he be removed from his estate Royal ) and a body politick , wherein he may purchase to him and his heirs Kings of England , or to him and his Successors . 4 E. 3. 17. Br. Dean , &c. 2. 14. H. 8. 30. So a Parson is a Corporation by the Common Law , and hath two capacities , one to take to him and his heirs , and the other to him and his Successors . And therein he is seised in Jura Ecclesiae .

Ibid . And if I.S. be Parson of D. and land be given to I.S. Parson , and his successors , & to I.S. Clerk , and his heirs ; he is a tenant in Common with himself .

F.N.B. 175. The parson in regard of his continual attendance upon that sacred function , is freed from all personal charges that may hinder him in his calling . For such a one shall not be chosen Bailiff , Beadle , Reeve , or other such Officer ; not be compelled to come to the Marl . c . 10 : Sheriffs turn , to the F.N.B. 160. c . Leets of the King or other for land annexed to their Churches . And all this by the course of the Common Law . Marl . c . 10. doth so recite it . F. N. B. 175. Br. Disin . 6.

So is every other Clerk within orders .

To the parson belongeth of common right ( as our books say ) the tenth of all manner of yearly encrease , which we call Dismes or Tythes . And therefore by a Lease of Rectoria , the Lessee shall have the Dismes and offerings of the same Church ; for they are incident unto it . 15 H. 7. 8.

33 H. 8. Br. dis . 17. And if a Parson demise his glebe to a Lay man , he shall pay Tythes , because they are of common right .

Every Parson before he can be incumbent , must be presented to the Ordinary , who is to admit him . 14 H. 7. 21. And therefore is allowed time to enquire of the Clerk ; ability . As if he be presented to the Bishop when he is ready to ride , who willeth him to come to him within three days to be examined : if he come not then , nor within six months after , the Bish●p may collate by lapse ; for there be many ●hings to disable him from having the Be●●fi●e . As if he be criminous , insufficien● , a Villain , have not his Letters of Order , 12 and 13 El. Dy . 291. &c And if a meer Layman be presented , admi●●ed , and instituted , and no sentence of deprivation or nullity given , the Ordinary cannot collate by lapse : for till that time , the Church is full to all intents , when the Ordinary admitteth him to be able , that is called an admission , when he admitteth him to the charge , as to say to the Clerk Instituo te habere curam animarum , that is , institution .

And then the Archdeacon is to put him in possession , by delivering the ring of the Church door unto him , and ringing of bells , which is called an induction ; and that being done , 20 El. 528. the party becometh a● Incumbent . Before which induction there is no possession or freehold in him , of glebe , or house , or dismes . So as a re●● granted by a Prebendary , after admission and institution , and before induction , with confirmation of the Ordinary before induction , and of Dean and Chapter , the day of induction is void .

Lit . 143. 6 E. 6. Dy . 69. The Incumbent hath not the meer right in him of Land in the right of his Church . But the Fee-simple is in abeyance , that is to say , only in the remembrance , intendment and consideration of law ; Therefore he cannot discontinue , and every Act which he doth with such land may be avoided , when he ceaseth to be incumbent , Lit . 143. 12 H. 8. 7. except such as are done by consent of Patron and Ordinary , which bind for ever .

3 E. 4. 3. If the Church be void six months , without presenting , which is called a lapse , the Ordinary himself may collate , that is , Doct . & Stud . per Br. plen . 15. a Clark appoint of his own , and if it be void six months after his time , then the Metropolitan , and six months after his time , the King may present All this to be understood , if the Patron present not before them . Doct . & St. ibid . But so long as the Church is void , though it be two years after , the Patron may present , and the Ordinary or Metropolitan are bound to admit him . Quaere whether it be so where the King is intituled to present by lapse .

When one Church is not able to find the Cure , 40 E. 3. 28. Fine . 50 E. 3. 27. Belnap . the ordinary by consent of the Patrons may unite it , or make a consolidation of it to some other . And it seemeth that in this case , ●he consent of the King is not requisite , because here is no prejudice wrought to any , for if one man be Patron of both Churches , he shall have the sole presentment : if there be several Patrons , then they shall present by turn , and the King shall have the lapse , as before he should . Otherwise it is upon an appropriation , for that is an amortisement , and therefore all must joyn in the making of it .

Statutes .

37 H. 8. Cap. 19. By assent of Ordinary , Incumbent , and Patron , under their Seals , an union may be made of two Churches , being not above six pound yearly value in the Kings Books , nor distant one from another above a mile ; s●ving to the King his Tenths and First Fruits

In corporate Towns , it must be by assent of the Corporation .

If such a poor Parish shall within a year assure by writing to the Incumbent and his Successors , eight pound yearly , the union shall be void .

Over and besides those Corporations that were at the Common Law there be divers others which have grown of later time , by a special foundation and election , whereof some are aggregate of many persons , 14 H. 8. Fen . that is to say , of a head and body ; other consist in one singular person .

14 H. 8. Ibid . These Corporations are all of them Temporal or Spiritual .

The Temporal made by the King , as Mayor and Commonalty and many more , which he maketh or may make every day . Also 9 El. ●y . 255. Lit . 36. 40 Ass. pl. 27. & 41. Colledges ; as Masters and Fellows , &c. divers Towns are so incorporate before time of memory , with power to hold plea , by writ of ex gravi querela , or such like , and are called Boroughs , from whence came the Burgesses to the Parliament ; and this maketh the difference between a Borough and a Town . Lit . 36. So that 40 Ass. pl. 41. up-land Towns , which are not ruled and governed as a Borough is , are but Towns , though they be inclosed in Walls , as Ludlow and such like . And every Lit . 38. Borough is a Town , but not è converso . 40 Ass. pl. 27. The names of all the Towns in England , and which are so incorporate , and which not , are of Record in the Exchequer .

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

Regular , which have entred into Religion ( and thereupon called Religious ) professing to vow three things , Obedience , Voluntary Poverty , Littlet . 66. and perpetual Chastity . Wherefore these are dead persons in the accompt of Law . Only their head hath power to purchase or do such other things to the use of the house . And of this sort are Abbot and Covent , Prior and Covent , &c.

Secular are such as have entered into Religion , as the Bishop and his Chapter , Master of Hospital and his Brethren , or confreres , guardian of a chappel , and the chaplains , &c. Also Archdeacons , and such like . 40 E. 3. 23. Co. 75. 17 E. 3. 40. Pa. Touching the Bishop and his chapter ( which make but one body ) their possessions are divided : so as the Bishop hath part by himself , and the Chapter the residue . Which Chapter consisteth of a Dean , as the chief , and Prebendaries or such like , who are most properly termed the chapter : and of these also , their possessions for the most part are divided , The Dean having some part sole in the right of his deanry : 21 E. 4. and the particular Prebendaries some other part in the right of their Prebends : 17 Ass. pl. 29. 18 E. 3. 36. F.N.B. 195. the residue the Dean and Chapter have together . And every of them is to such purpose incorporate by himself .

And these spiritual Corporations are sometimes presentative , 26 Ass. sometimes dative , perpetual or removeable , sometimes elective , and have a Common Seal , according as their Corporations . To them also Parsonages may be appropriate by the Patron , Ordinary and King , and Vicars endowed to serve the cure . Whereupon a praecipe quod redda● , lieth against the Vicar only , without naming of the person , for he alone is Tenant of the Free-hold , and may have a juris utrum ( or other action ) against the person . All which is to be understood of an antient indowment , but not for lands whereof he is endowed by the Ordinary .

Statutes .

Magna Charta cap . 36. A Gift of Lands to a Religious house , to take it back to hold of them , is meerly void , and the Land forfeit to the Lord .

Stat. de Religiosis , cap . 1. Land given in mortmain , under colour of a term , forfeit to the Lord , the immediate Lord hath one year to enter , the next Lord half a year , and so from Lord to Lord , till it come to the King .

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

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

CHAP. II . Of Possessions .

OF the common Law there be two parts .

One that concerneth Possessions .

The other the punishment of offences .

Prerogative .

The King shall have to his own use , 31 E. 3. San . def . 37. and therefore may lett to farm rendring a rent , all the possessions of a fool 18 E. 3. Scire fac . 10. natural , not of any other Ideot Stam . pre : 34. during his ideocy , but 1 H. 7. 24. not that which he hath title unto by entry or action . And therefore upon an office ( finding that the Ideots ancestors died seised of an estate tail ) it is sufficient to traverse the dying seised , for that only intituleth the King .

Statutes .

Prerogative cap . 9. The King shall have the custody of their lands during their life . Prerogative chap. 10. And of Lunaticks , during their Lunacie to their own use .

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

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

7 H. 7. cap . 1. 17. The heir of Cesti qui use ( of land holden by Knights service ) shall be in ward , and pay relief .

19 H. 7. cap . 15. Execution upon judgment , statute or recognizance , shall be good against Cesti qui us● .

The heir of C●st● qui use of land in soccage , shall pay relief , heriot , &c.

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

27 H. 8. c . 16. Bargains and sales to raise an use of inheritance or freehold , must be by deed indented and inrolled within six months , in a Court of record at Westminster , or in the County where the land lieth .

Sundry men possessing the same thing by purchase , are joyntenants or Tenants in common .

Ioyntenants which possesss by the same title . As if two , three , or more , be infeoffed of certain lands , Lit . ca. of Join . to hold to them and their heirs , or during their own or anothers life , or disseise another to their own use , or a lease be made , or a horse , or other chattel personal given unto them .

And here the survivor shall have the whole in the same sort as he had his part , Lit . Ibid . excepting only present interests of the thing it self granted by him that dieth .

As a lease for years , though the Lessee never had possession , or though it be to begin at a day to come , and the Joyntenant which made it die before the day , bindeth the Survivor : for the Lessee hath a present interest .

Otherwise it is of a grant to have a lease , 5 El. Ploy . 203. Brown . if the grantee pay x l. before Midsummer next ; and the Joyntenant which made the grant , dy before the day : for there is no interest at all , but a communication only , till the money be paid . Lit . ibid . Otherwise it is also of a rent charge granted out of the Land , whereof they are Joyntenants : for that is no interest in the land it self .

Lit . chap. of tenants in common . Tenants in common are they which possess by several titles .

As if two Joyntenants be , and one alieneth his part to another , the Alienee , and the other Joyntenant , are Tenants in common : for the alienee cometh in by one of the Joyntenants feoffment . So if three Joyntenants be , and one alien that which to him appertains in fee ; the alienee is of this third part tenant in common , with the other two Joyntenants : but they remain still Joyntenants of the other two parts . So if land be given to two men , or two women , and the heirs of their two bodies ingendred : the Donees have a joynt estate during their lives : but their issues are Tenants in common of the inheritance . For every one claimeth as heir of the body of his father . And it is impossible that two men or two women should have one heir of their bodies between them begotten .

So if the land be given to a Mayor and Commonalty , and their Successors , and to I.S. for I.S. taketh in his own right , 7 H. 7. 9. and the other in the right of the Corporation . And therefore upon a feoffment to a corporation , & another person , there must be several liveries , in respect of their several capacities which maketh them tenants in common .

So if lands be given to two , Lit . Ibid . Habendum the one moity to the one , and the other moity to the other . In like sort if a lease for years be made to two , or two buy a horse or ox , and one grants that which to him appertains of the term , horse or ox to another .

To possessions this is general , chat they may be granted .

Statutes .

3 H. 7. c . 4 All deeds of gifts of goods & chattels made of trust to ones own use , shall be void .

13 El. c . 5. made perpetual .

27 El. c . 1. Every gift , grant , bargain , and conveyance of lands and chattels , or of lease , rent , common , or other profits out of them , & every bond , suit , judgment and execution since the beginning of her Majesties reign , or hereafter to be had or made , for the defrauding of any persons just action , suit , debt , account , dammage , penalty , forfeiture , herriot , mortuary or relief , shall be void against that person , his heirs , executors , &c.

The parties or privies knowing such a fraudulent gift which shall justifie it to be done bona fide , or shall alien such things so to them conveyed ; forfeit one years value of the lands and profits out of it , and the whole value of the goods & chattels , & the sum of such covenous bonds , & shall have half a years prisonment : this act extendeth not to common recoveries , nor vouchees in a formed on , nor to any gift , &c. bona fide , and upon good consideration to any person , not knowing of any fraud .

27 El. c . 4. Every conveyance , grant , charge , lease , estate , incumbrance , and limitation of use of Lands , tenements , or hereditaments , made since the beginning of her Majesties reign , or hereafter to be made , for the defrauding of purchasors of the land it self , or any part or profit out of it , shall be void against the person so purchasing for mony , or other good consideration , and against all claiming under him ; with penalty , as in the former statute ,

This extendeth not to the avoiding of any grant , &c. upon good consideration & bona fide . If any such conveyance , &c. be made with a clause of revocation or alteration at his pleasure , by writing ; and after he shall bargain , demise , sell , grant , convey , or charge the same lands , &c. for mon●y or other good consideration ( the conveyance not revoked or altered ) then the conveyance , &c. shall be void against the bargainees , &c. and all claiming under them , ( lawful morgages only excepted . )

Prerogative .

Every grant made by the King , upon surmise or suit of the party , shall be taken most beneficially for the King , and against the party . 37 H. 6. 21. So as a pardon to the Sheriff , ex speciali gratia & mero motu of all misprisions , offences , contempts and deceits , shall discharge him of an amerciament , for returning of one quarto exactu● , where indeed he was out lawed . But if himself sue for such a pardon , he must have express words , otherwise it will not help 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 , it is nothing worth : 9 E. 4. Den . 1. for it cannot inure also to make him a Denisen .

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

But the King may create a Duke , Br. paten●s 44. and in that patent grant him land by the same name , or make a Mayor or commonalty , & by the same patent give them Land , or grant them license to purchase : for these are two several things expressed in the Grant .

No grant of his is good , when it appeareth within the body of the grant , that the King is deceived . 18 H. 8. B. pa. 104.

As if he give lands to one and his heirs males . For this is a fee simple , and it is plain the King meant to grant but an estate tail .

Statutes .

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

F.N.B. 202. 26 H. 8. 2. A grant by an infant under the age of 21 years F.N.B. 202. c . 7 H. 4. 5. 12. one out of his right mind , whom we call non sanae memoriae , or non compos mentis , or compelled thereunto either by 9 H. 7. 24. duress of imprisonment , or fear of some bodily hurt threatned to himself , not to his Father , 39 H. 6. 50. Mother , Brother , &c. as loss of life & member : or though it be but of imprisonment : for imprisonment is a corporal pain , and one may be imprisoned that he may die of it . Otherwise it is of a menace to break or burn down ones house ; for that is but the loss of ones goods , is avoidable , that is to say may be avoided at any time by entry , action , &c. if they deliver it with their hand : as in a feoffment , and themselves make livery , or a gift of goods , and themselves deliver them .

But if they deliver it not with their hand , as in a grant of a rent , advowson , &c. or a feoffment by letter of Attorney , &c. it is meerly void , and norhing at all passeth . So as they may have a trespass or assize , and remain tenant to the Lord , and therefore shall be in ward , notwithstanding any such feoffment .

So of a grant made by one that hath no understanding . As if he be born dumb , Park . 5. deaf and blind . But one dumb may make a good grant , or born dumb and deaf . For divers may have understanding by their sight only , though dumb and blind .

Grants of an infant in respect of having things necessary cannot be avoided .

As a bargain for his necessary meat , drink , 18 E. 4. 2. and apparel : for he cannot live without them .

Other grants of his where himself hath likewise benefit . We call it , quid pro quo . 18 E. 4. ibid . are only voidable , as if he lett land for years , reserving a rent .

To this place belongeth exchange which is a mutual grant of equal interests , Lit . 15. each in exchange of other .

As of land in fee simple , Park . 55. for other of the same estate . But to exchange an estate pur auter vie , for an estate for life is not good . For though both have a freehold , yet an estate during anothers life , is not so high a freehold , as an estate during his own life , & in every exchange there be two grants , Lit . 13. for each granteth to other his land in exchange . 9 E. 4. 21. And the very word it self of exchange is necessary : For if I give to a man an acre of land by deed indented , and he by the same deed give unto me another acre for the same acre , nothing passeth without livery , if the word Exchange he not in .

Lit . 40. 19 H. 6. 34. Prescription is as available as any grant . As that one and his ancestors time out of mind , have been seised of a certain yearly rent out of land , Lit . Ibid . and distrained for it being behind . Or if a villain and his ancestors , as of villains in gross , o● that one , 3 E. 3. Br. in . cid . 39. and those whose estate he hath in the Mannor of D. have had a Park there time out of mind . For of such things as cannot be granted without deed or fine , Lit . Ibid . the prescription must be in him and his ancestors whose heir he is : and not in himself , and those whose estate he hath : because he cannot have their estate without writing , which must be shewed to the Court . As of a villain in gross , a 12 H. 7. 18. hundred rent , &c. Otherwise it is of things appendant or regardant to a Mannor .

A Possession is either upon a limitation or condition , or else absolute .

11 H. 7. 17. Vpon a limitation which ceaseth upon the doing or not doing of something . As a lease for years , upon condition if the Lessee go not to Rome by such a day , his Estate shall cease . And therefore in this case the grantee of the reversion may enter if he go not ; for thereb● his estate is determined and void . Lit . 90. So i● Lands be given to husband and wife during the coverture ; or a Parson make a lease to one so long as he is parson ; this in both cases is an estate for life upon limitation .

Vpon condition , Lit . 74. & 89. which is only defeasible upon the doing or not doing of something . As a lease for years or life , upon condition if the Lessee go not to Rome by such a day , the Lessor and his heirs may reenter . And therefore here the grantee of the reversion cannot reenter for the condition broken . So if a man by deed indented , infeoff another in Fee-simple , or make a gift in tail , or a lease for life or years , reserving to him and his heirs a yearly rent , payable at a certain time , upon condition , if the rent be behind , &c. it shall be lawful for him and his heirs into the same lands or tenements to reenter , &c. In these cases if the rent be not paid at or before the time limited in the condition ; the feoffor or his heirs may enter in such lands or tenements , and them have and hold in his first estate , and thereof quit and clean to oust the feoffee , donee , or lessee &c. And this is termed a condition in deed . So of such estates as have by the law a condition annexed unto them ; although it be not specified in the writing . As a man granteth to another by his Deed , the office of a Parkership of his Park , to have and occupy the same office for term of his life ; the estate which he hath in the office , is upon condition in Law ; that is to say , that he do well and lawfully keep the Park , and do that which to the office appertains , otherwise the grantor and his heirs may lawfully oust him , and grant it to another . And such a condition which is understood by the law to be annexed to any thing , is as strong as if the condition were put in writing .

In the same manner it is of the grant of a stewardship , Bedleship , Bailywick , or other offiees .

Absolute , which is neither upon limitation nor condition .

Again , Possessions are in being , which properly we term in Possession or in action .

In possession , which one doth injoy .

In action , which one ought to injoy , either in respect of a right or title .

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

Title , when no wrong was done .

As in a feoffment upon condition , and the feoffee breaketh the condition .

Of things in action : Preamble of 32 H. 8. cap . 8. so reciteth the Common Law . as cause and matter of suit , entry to contrive ones right , or upon title ; as for a condition broken , and such like , no stranger shall take advantage . And strangers are accounted , besides the parties themselves , Park . 164. which are not either privy in blood , as the heir to the feoffor : or in succession , as the Successor of Major and Commonalty , &c. or executor , administrator , &c. which represent the Testator .

Statutes .

32 H. 8. cap . 34. All grantees of reversions may enter upon Farmers , for any forfeiture ( or condition ) and have like advantage against them ( by action only ) for any other covenants , 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 reversions ( recovery in value only except . )

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

Release is a passing of the grantors interest . The form whereof is , Lit . 105. De me & haered , quietum clamavi , &c.

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

Furthermore , the grant of every thing in action , and of such things in possession as cannot pass by livery of the hand , must of necessity be by deed . 6 H. 7. 9. For the right of the thing real or personal , cannot be given nor released by parol . Park 13. No more can a reversion , rent , common in gross , or villain in gross , be granted by parol . But a horse , ox or such personal thing , corn and trees growing upon the ground may : and also the wardship of body or land .

So a lease for life , with a remainder over , is good without deed ; for the ramainder passeth by livery and seisin .

Park 25. A deed is a writing sealed and delivered . For if either a parchment without Writing be delivered as ones deed , yet it is not his deed , Park 27. though an Obligation be afterwards written in it : or if it be a writing but not sealed at the time of the delivery of it as his Deed , 9 H. 6. 37. it is a scroul and not his deed . Or if I make and seal a deed , and the party take it without my delivery ; I may plead it is not my deed . And belongeth always to him whose possession is made by it . As if I release to two disseisors , 34 H. 6. 1. and deliver the deed to one , 6 H. 7. 3. the other surviving shall have it . Or if the Disseisee release to the Disseisor , and he make a feoffment of the land , the feoffee shall have the release . But if a feoffment to two without deed , & the writings of the land are delivered to the one , the other shall not have them : or if having two joynt feoffees , I release to both , and deliver the Deed to one , the other though he survive , shall not have it .

But a writing read in another form to one not lettered , that is , 1 H. 7. that cannot read , is not his deed at all , though he seal and deliver it .

A deed is a deed poll or indenture . Lit .

Poll , that which is the only deed of the grantor .

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

And barreth them from saying contrary to any thing in the Indenture . As upon a lease by Indenture or fine , both parties are estopped to say that the Lessor had nothing in the land : 15 El. pl. 434 ▪ so as if the Lessor come afterward to have the Land by purchase or descent , the Lessee may enter upon him by way of conclusion , and likewise the Lessee shall by estoppel be driven to pay the rent .

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

CHAP. III . Of Hereditaments , where : of Estates .

A Possession is an Hereditament or Chattel .

Hereditament is a Possession which one may have an estate in .

One born of Parents out of the Kings allegiance ; such an one we call an alien . But 36 H. 8. Br. denison 9. 1 R. 3. 2. Hussey . an aliens son , born in England , is no alien : Nor by the common law , one born beyond Sea , of English Parents , in the Kings subjection . And the Statute 25 E. 3. only maketh it more clear ; is disabled to enjoy any hereditaments , he shall have no 38 H. 8. Br. denison 10 & 16. real nor mixt action , nor is inheritable ; but either his younger brother being a denizen , shall have it , or the So Doct . & Stud . thinketh Br. denison . 7. Lord by Escheat .

Prerogative .

Therefore such an one purchasing 14 H. 4. 20. c . Mar. Br. denison 25. any though it be but for years , it is the Kings .

An estate is particular , or an inheritance .

And is uncertain or certain .

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

7 E. 4. 6. At sufferance , when after lawful occupation , he continueth possession without authority .

As lessee for years , holding in after his term expired , and before any entry made upon him . But if he continue after entry upon him , then is he a wrongdoer .

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

Statutes .

6 H. 8. c . 15. If the King give land , or an office , durante beneplacito , and after grant the same unto another : the second grant shall be void , if mention be not made therein of the first .

Certain , which is not so determinable , and is called a term , whereupon may depend a remainder or reversion ▪ for a remainder cannot be but upon a particular estate precedent : 7 E. 6. Ploy . 83. As upon a lease for years or life : upon an 11. H. 4. 42. 4 E. 6. Ploy . 29. estate to one and his heirs during the life of I. S. for in effect it is but an estate for life . But not upon an estate to one and his heirs so long as I. S. hath heirs of his body ; For that is a fee-simple determinable . Nor 3 E. Pl. 235 , & 247. at the Common Law ; upon an estate to one and the heirs of his body : for it was a fee-simple conditionally ; ibid . neither could any reversion be of it .

Remainder is a residue of the estate , at the same time appointed over : and therefore cannot be said to be ex assignatione , 38 H. 6.30 . but ex dimissione , of the Lessor , because it passeth at the same time ,

Reversion is a residue of the estate not at the same time appointed over . Lit . As if a man let land for li●e , without saying more ; the reversion of the fee-simple is in the lessor . And if he afterwards grant this to another , the grantee hath a reversion .

Terms are forfeited by plucking the inheritance out of him that hath it . Lit . 137. a fund . Leg . per Br. Fors . 96. As if tenant for life ( or years ) of land make a ●eoffment in fee : for thereby the fee-simple passeth , by reason of the livery .

Otherwise it is , if tenant for life of a reversion or rent , grant it by his deed in fee : or if tenant 1 H. 7. 22. for life take a fine of a stranger , sur conusance de droit , or sur release ; for such a fine encreaseth not his estate . But a 42 H. 3. 20. fine by tenant for life to a stranger , sur conusance de droit come ceo quil ad de s●n done , is a forfeiture . So if tenant for life 9 H. 7. 20. pray in aid of a stranger , or in 9 H. 5. 14. a writ of right brought against him ) joyn the mise upon the more right . And these are by reason of the estoppel .

Terms may be surrendred , that is to say , 12 H. 4. 21. yielded up and drowned ( For a surrender cannot be of a fee-simple ) to him that hath the next & higher estate As two Joyntenants , 22 H. 6. 5. and to the heirs of one he that hath the freehold cannot surrender to the other : for both have a joynt possession , and the same estate . But tenants in common may ; Park . 113. As the Alienee of him that hath the freehold in the former case may surrender to the other tenant for life , Park . ibid . where there is a remainder for life with remainder over in fee , cannot surrender to him in the remainder in fee ; for he hath not the next immediate estate . Park . ibid . Lessee for life cannot surrender to him in the remainder for years ; But to him in the remainder for life he may , for that remainder ( as unto him in the remainder ) is an higher freehold than the others estate , which is unto him but pur auter vie .

Statutes .

Glocest . c . 7. Tenant in dower alienating longer than during his own life , he in the reversion shall recover against the alienee in her life time .

A term is for years or life . The present estate for life is termed a freehold ( in deed ) if he be actually seised of it ( in Law ) before his entry , when it is cast upon him by Course of Law ; as upon the heir by death of his ancestor ; upon him in the remainder by death of the particular tenant .

A term for life is either for his own or pur auter vie , that is , for anothers life , where the tenant pur auter vie , dying before the other , whom we term Cesti qui vie , he that ca● first hap it , Lit . 167. shall enjoy out the term , & is named an occupant , but if land be let to one and his heirs during anothers life , the heir shall put out the occupant .

Inheritance followeth . Every Inheritance at the Common Law is called a fee simple : The release whereof , or of an estate for life , is not good to one that is but tenant for years , without privity . 9 H. 6. 44. As if tenant for life or in fee release to the Lessee for years of his disseisor . But the release of a term for years to the lessee for years of him that doth eject him , is good enough : for there needs no privity .

And to these two estates of Inheritance and life , warranty doth belong : which is an assurance warranting such an estate : for the word warrantizabimus only maketh a warranty , and not defendemus . And if a Lease for years be made with warranty ; this sounds not in nature of warranty , but of a covenant , because it is a chattel . Lit . 166. 26 H. 8. 3. And if the Lessee he ousted , yet he may have an action of Covenant . But in a warranty of a fee or freehold , the party shall have no advantage unless he be tenant of the land . 3 E. for . 44.

Every exchange hath a warranty knit by law . And therefore the exchanger or his heir may vouch to warranty by an exchange without deed , and his assignee rebutt .

Lit . 1. Inheritance of an estate descendable : for inheritance never lineally ascends as from the son ( that purchaseth in fee-simple , and dieth without issue ) to the father : but always descends , as to Unkle , brother , &c. to his heirs that hath actual possession .

Lit . 2. As if the eldest brother once enter , his sister of whole blood shall inherit , and not his Brother of the half blood . But if he never enter , the brother of the half blood , shall inherit as heir to his father .

Lit . 2. An heir is the next of worthiest of whole blood , or the half blood is inheritable , being also of blood to the first purchasor .

Lit . 2 & 3. So the blood of the fathers side is worthier than the mothers : the elder brother worthier than the rest . Therefore these shall inherit first .

So lands purchased may go to the heirs of the part both of the father and mother of the purchasor , 49 E. 3. 12. unless it be once attached in the heir of the part of the father ; for then the heir of the part of the mother shsll never have it , because they are not of blood to him that was last seised .

But Lands descended go only to the heir of that part from whence it descends : as if from the father who did purchase it ; then it may go to the heirs of the part of the mother of the same father , but not to the heirs of the part of the sons mother . For though they be of blood to the son that was last seised : yet they are not of blood to the father which was the first purchasor .

He that is begotten out of marriage , is called a bastard : 1 H. 6. 3. for if a woman great with child take a husband , the issue born ( though it be within six weeks after ) is no Bastard . 1 H. 6. ibid . 7 H 4. 9. Or if the wife elope from her husband , and continue in adultery , yet the issue born during that time ( if both be within the four Seas ) is intended lawfully begotten . And if one die , 21 E. 3. 29. his wife privement inseint ( that is , so with child as it is not discerned ) and she take another husband , the issue born within a month ( or such a time as it is impossible he should beget it ) shall be accounted the son of her first husband , & such a bastard is of blood to none : in Law , Lit . 41. nullius filius .

And therefore cannot inherit : nor bring 35 H. 6. 9. a Writ of Detinue as heir , nor be a villain Lit . 41. but by his own confession in Court of Record : and the land shall E. 2 bast . 20. escheat where there is no issue but such a bastard , not other heir .

But Lit . 94. marriage following after , gaineth him the right of inheritance , if after the fathers death he enter before his younger brother 17 E. 3. 59. bast . 32. or sister , if both be females , born 23 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 2 E. 3. 16. the possession all his life without interruption . And that 36 Ass. pl. 2. Br. descent . 29. although the mulier puisne be an infant : because this bindeth the right ; For Lit . 94. such a bastard is a Mulier by the Law of Holy Church : and therefore hath a colour to enter as heir to his father .

Lit 53. If the next be women in equal distance , as Daughters , Sisters , Aunts , &c. they shall inherit alike , and are but as one heir , called parceners or coparceners .

Lit . 160. Where the general entry of one is of the test , if they list . So is not a special en●ry to her own use .

As if Tenant in tail have issue two daughters , and the eldest entreth into the whole , and thereof maketh a feoffment with warranty , this is a collateral Warranty , and a barr to the puisne daughter for her moity . Which proveth , that this special entry is not the entry of both : for then it were a Warrant ● commencing the ●isseisin , and no barr . But all this is to be understood where the other coparceners list to have an entry for them , 4 H. 7. 9. and not otherwise . And therefore in a Partitione facienda of rent , it is a good plea for the defendant , if she is sole seised , without that that she holds pro indiviso . And the plaintiff is driven to a nuper obiit . 43 E. 3. 19. And if one enter , both cannot be vouched as heirs , for that is to their disadvantage . But both may have an assise .

The inheritance it self that descendeth , shall be charged by the deed of the same 10 E. 4. 10. ancestor .

Whether Obligation , covenant , annuity , warranty , or whatsoever else : but not by any bare matter 10 E. 4. 10. enfait , as of ones Ancestor time out of mind have been wont to pay an annuity , &c.

Binding himself and his heirs .

But if either a man bind his heirs to pay xx l. a year , or such like , but not himself , 31 E. 1. gr. 85. or himself 15 El. Pl. 457. Br. Annuity . 13. 2 H. 4. 413. without naming his heirs : there the heir shall not be charged , though he have assets by descent . And therefore 15 El. Pl. 441. 17 El. Dy . 344. 40 E. 3. 15. the heir being charged only by reason of assets , when he hath assets , the same is counted his own debt , and the action of debt lieth against him in the debet & detinet , not in the detinet only . And for one acre only by descent the heir shall be chargeable to an Obligation of 1000 l. but no other land shall be put in execution , but it . So , though it be but a reversion that descendeth : in which case the Judgement shall be Quod recuperet debitum , & damna de praedicta reversione levanda cum acciderit . And a special Writ shall go out to extend to the whole .

Statutes .

Merto c . 5. A Nomine poenae shall not incur upon an heir within age .

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

Whereby the land descends unto his heir . For if it escheat , as by the death of the alienee of the Disseisor , Lit . ibid . without heir , the disseisee may enter ; taketh away the entry of every one : We call it a descent that tolleth entry , whether it be of one that hath right , as in the dying seised of a disseisor Lit . ibid . abator , 4 E. 6. pl. 47. or intrudor ; or of one that hath but title that may have an action : as an Infant Lit . 96. whose feoffee after his full age , dieth seised : he 21 H. 6. 17. in the reversion , where tenant for life doth alien , and the alienee dieth seised , the Devisee 9 H. 6. 25. 21 H. 6. 17. 33 Ass. pl. 11. 47 E. 3. 11. 1 E. 6. Br. 30. of Land in London , if the heir enter , and die seised . For the Infant may have a Dum fuit infra aetatem , he in the reversion a consimili casis , and the devisee in that case an ex gravi querela . But if the disseisor of the feoffee upon condition , or an alienee in Mortmaine die seised : or if a man devise , that I.S. shall sell his lands at London , &c. and the heir be disseised or make a feoffment , and the Disseisor or Feoffee die seised : yet the feoffor upon 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 have no remedy .

But claim upon the Land within a year before the death , it is called continual claim , Lit . ch. of cont . claim . or if they dare not upon the land for fear of some bodily hurt , then as near the Land as they dare , saveth their entry .

Statutes .

32 H. 8. cap . 23. The dying seised of a disseisor by strength , and without title , tolleth not the entry of him and his heirs , which at the time of the descent had good title of entry , unless the disseisor had peaceable possession by five years next after the disseisin .

A fee-simple is a fee-simple , conditional or absolute .

Conditional is a fee-simple to one and the heirs of his body : 40 El. Pl. 250. for that is a fee-simple at the Common Law : but the having of issue made it a more perfect fee-simple than before .

30 E. 1. Form . 85. Which before issue cannot be alienated after issue had , becometh an absolute Fee-simple .

7 E. 3. 36. 8. per 4 El. 11 Pl. 240. 30 E. 1. ibid . And may be alienated or forfeited by attainder of felony : But so , as if the Issue fail before the alienation , the donor , or giver shall have it .

And this by the Statute of Westm . 2. c . 1. being restrained from all alienation ( to the prejudice of the Issues ) and that so as by the very words of the Statute , a reversion depends upon it ; is now become , and made by the construction of that Statute , a new kind of estate , divided from a fee-simple , and called an estate Tail . Which name for plainness sake we use hereafter , calling the other only a fee-simple . And the name of Inheritance we apply indifferently to them both . In which sense all common use doth take those words .

Statutes .

Westm . 2. c . 1. The Will of the giver ( according to the form in the Deed of Gift manifestly expressed ) shall be from henceforth observed . So that they to whom the land was given under such condition shall have no power to alien the land so given , but that it shall remain to their issue after their death , or shall revert to the giver or his heirs ( if issue fail ) neither shall the second husband of any such woman from henceforth have any thing of the land so given , upon condition after the death of his wife ( by the Law of England ) nor the issue of the husband and wife shall succeed in the Inheritance : but immediately after the death of the husband and wife ( to whom the land was given ) it shall return to their issue , or to the giver or his heirs , as aforesaid .

34 , and 35 A. 8. cap . 20. No common recovery of lands in tail , of the gift or other provision of the King or his Progenitors ( though it be with voucher against tenant in tail , the remainder or reversion being in the King at the time of the recovery ) shall bind the heir in tail , or barr him of his entry . Tenant in tail shall take no advantage for any recompence in value against the vouchee or his heirs .

Hither belong Hereditaments given in frank marriage ; that is to say , freely in marriage with ones Kinswoman .

For the very word Frank marriage implieth an inheritance to the Donees , Lit . 4. & 60. and the heirs of their two bodies begotten .

But land cannot be given in Frank m●rriage with a man that is C●sen to the Dono● , but always with a Woman . H. 8. B● . Fra . 1● .

Absolute is a Fee-simple to one and his heirs whatsoever , which descending to females ( if one of them have lands of the same Ancestor by Frank-marriage she shall have no more unless she be content to put those Lands in Hotchpot ; that is , that the value thereof be allowed to the other .

Lit . 59. As if x . acres were given to her in Frank-marriage , and xx . acres more ( all of equal value ) descend from the same Donor , she putting all together that that value may be known , shall retain her own x . and have v. acres more .

Lit . 61. But if the lands descend from the father of the Donor , or other Ancestor , and not the Donor himself ; she shall have her part in that which descendeth , without putting in Hotchpot ; for she is not advanced by him , but by the other .

Lit . 61. No more shall any Hotchpot be , but in lands given in Frank-marriage . For if a woman have lands by any other gift , she shall have her part of that which descendeth , as if no such gift had been . And the reason of all this is , for that ( if she will not put the Land in Hotchpot ) the Law intendeth that she holds her self sufficiently advanced . Lit . 59. And note , that upon the Hotchpot , the lands given in frank-marriage must always remain to the Donee .

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

And therefore Lands given to a Mayor a Commonalty , without saying , 27 H. 8. 15. and to their Successors , is a Fee-simple , and though the Grant be for their lives . For those are void words .

And a colour in Action of Trespass , 21 E. 466. cannot be given in a corporation by a lease for term of their lives ; for being a Body Politick ( which never dieth ) they cannot have such an estate .

Here two special estates for life , dower , and Tenancy by the curtesie of England , do arise after ones death that hath an inheritance joyned with the Free-hold .

For they 9 El. C. B. may be of a reversion depending upon an estate for years , and consequently of the rent , if any be reserved . But 40 E. 3. 15. not where one hath an estate for life , the remainder to another in tail , the remainder to his own right heir : whether it be a Fee-simple , or such an estate tail as may go to the issue had between the Donees , that wife or that husband ( if the Donee be a woman ) As if the lands be given to a man & the heirs that he shall beget of the body of his wife ; Lit . ch. of dow . the same wife shall be endowed , but not a second wife . And of lands given to a woman , and the heirs of her body begotten by the husband , 4 El. Pl. 239. her husband may be tenant by curtesie , but not a second . So of land● given before the Statute of West . 2. to a man and a woman , and the heirs of their two bodies ; the second wife shall not be endowed , nor the second husband be tenant by courtesie , Li . chap. of dow for their issue cannot inherit : But in both cases the wife of every issue ( inheriting by force of that gift ) shall be endowed , and the husband of every such issue may be tenant by courtesie . So of lands given to a man and the heirs of his body , or to a woman and the heirs of her body , whatsoever wife the husband taketh may be endowed , and whatsoever husband the wife taketh may be tenant by courtesie .

Lit . 7. Dower is an estate whereby the woman hath the thirds in severality , who must be nine years of age at the time of her husbands death . 9 E. 4. 47. Detaining of Deeds concerning inheritance descended to the heir , is a barr of her dower , so long as she detaineth them : but 2 H. 7. 6. so it is not of lands purchased by the heir .

Li . chap. of dow If the husband at the Church door which is called an endowment ad ostium Ecclesiae , or , being So he must be Lit . 8. heir apparent by the fathers or mothers consent , which is called an endowment ex assensu patris or F.N. B. 150. matris , &c. for the 8 E. 2. dow . 154. Son must make the endowment , and they assent , do Park 86. presently upon affiance , not 44 E. 3. 43. before espousals , endow her of any certainty , as of the whole moiety , or less part , &c. this shall barr her of the thirds if she agree to it . F. N.B. 150. 21 H. 6. 25. But so shall not an endowment , ad ostium camerae , nor ex assensu fratris , or consanguinei : Therefore it is at her election after her husbands death to hold her to this endowment , or to take her Dower at the Common Law . Littlet . 8. And in such endowments the wife may enter after her husbands death ; without any bodies assignment ( because the certainty of the land which she shall have appeareth ) which in dower at the Common Law she cannot .

Statutes .

Magna Chart . cap . 7. The wife , after the death of her husband , shall abide in his chief messuage forty days , within which time her dower shall be assigned her . If the chief messuage be a Castle , then she shall have a competent house provided her till her dower be assigned .

West . 2. cap . 34. A woman that leaveth her husband , and abideth with an Adulterer , shall not have dower , unless the husband ( voluntarily , and without coercion of the Church ) reconcile him self , and suffer her to inhabit with him .

11 H. 7. cap . 20. If a woman that hath an estate in dower for life , or in tail joyntly with her husband , or only to her self , or to her use in any lands , &c. of the inheritance or purchase of her husband , or given to the husband and wise by the husbands ancestors , or any seised to the use of the husband or his Ancestors , do sole ( or with an after taken husband ) discontinue or suffer a recovery by covin , 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 been dead ) without any discontinuance or recovery : provided that she may enter after the husbands death . But if the woman were sole , the recovery or discontinuance barreth her for ever .

This act extends not to any recovery or discontinuance , wi●h the heir next inheritable to the woman , or by his consent of Record inrolled .

27 H. 8. c . 20. Where an estate is made in possession or use to husband and wife , and his heirs , or the heirs of their two bodies , or to them for their lives , or for the wives life for her joynture , she shall not have any dower : upon a lawful eviction of that joynture , she shall be endowed 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 , unless the Joynture be made by Act of Parliament .

Tenancy by the curtesie of England is an estate , whereby of an actual possession , the husband that had issue by her born alive ( whether the issue be male or female , heard or seen , Lit . 7. and whether it afterwards die or live , or if 28 H. 8. Dy . 25. Fitz . the issue be born alive , it is sufficient , though it be not heard to cry ( in as much as he may be born dumb ) shall have the whole .

But no tenancy by curtesie shall be of a possession in law . Park 90 & 89. As where lands descend to the wife , and she dieth before the entry , by her , or by her husband , or any of them . Nor of a thing in suspence : As where tenant in fee of the Land marrieth a woman that is seised of the seigniory in fee , the husband can never be tenant by the curtesie of the Seigniory : for by the intermarriage it is suspended . And it is called tenancy by the curtesie of England , Lit . 7. because no other Realm useth it .

CHAP. IV . Of Land .

HEreditaments , are Tenements , or bare Hereditaments .

A Tenement is a possession holden , the fee-simple whereof , Littlet . 2. when he that hath it dieth without heir , cometh to the Lord .

39. Ass. pl. 7. Which is called an escheat . As if Land descend from the father , and he die without an heir of the part of the father . Or a Bastard purchase land , and die without issue .

Of this sort are lands and advowsons .

Land is a tenement or annual occupation .

21 H. 7. 39. For if the tenant of twenty acres of land before quia emptores terrarum , make a feofment of one of the acres , to hold of him by vj d . and dieth without heir ; the Lord shall have a Writ of Escheat , supposing that he held of him xix . acres , and vj . d . rent , yet indeed he held not the rent but the land . And in his Count he shall declare all the special matter . So in a Writ of Ward of the heir of the Mesne ; the Writ shall suppose the rent to be ●olden , and declare specially . Or he may have a general Writ of the land , or a special Writ , F.N.B. 139. c . because the Mesne held the land unde redditus ille provenit . All which proveth , that indeed not the seigniory , but the land is holden . Therefore of land , rent , &c. the pleading is , he was seised of his demesne as of fee . But an advowson lieth not in manual occupation , therefore the pleading there is , He was seised in fee , without saying in demesne . Lit . 1.

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

For in a Praecipe quod reddat of a messuage , the warrant of Attorny , is quod talis po . lo . suo ( i ) posuit loco suo I.S. in placito terrae .

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

For things annexed to the Church or Glebe , as trees or grass growing there , are the Parsons , or he shall have an action for them , and for entry into the Chu●ch-Yard or Glebe . 38 H. 6. 20 , And if he be ejected out of his Church , and another take the profits , he may have an assise of the Rectory , Church-yard and Glebe : for it is his Freehold .

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

Prerogative .

50 Ass. pl. 1. 18 El. Pl. 498. All land is holden of the King immediately , or by means : himself having not any higher upon earth of whom to hold .

8 E. 3. Esch. 12. 8 El. Pl. 314. Escheats of all Cities appertain unto the King . All mines of gold and silver , or wherein the gold and silver is of the greater value , are the Kings .

14 H. 3. stat . Hib . doth so recite it . Among coparceners the eldest upon partition shall have the chief house .

Lit . 137. Seisin delivered of land , we call it livery of seisin ; and the making of the estate we call feoffment , always passeth a Free-hold , though he be but tenant for years , at will , or sufferance , that maketh it . 4 E. 6. pl. 25. Lit . 12. And otherwise a freehold of land cannot pass save by release , Lit . 109. and confirmation Lit . 121. where they were by way of enlarging an estate . As a lease for years , & afterwards release or confirm to the Lessee , to have and to hold to him for life , or to him and the heirs of his body , or to him and to his heirs &c. for a feoffment with livery made by one to his Tenant 22 H. 6. 43. at will , or 22 E. 4. 38. for years , is void , except it be by deed , and then it shall inure by way of confirmation .

Lit . 13. Exchanges endowments and surrenders Br. dow . 7. 44 Ass. pl. 3. 38 E. 3. 11. .

Livery within the view , so we call an estate made within view of the land , be it by delivery of a deed of feoffment within the view , or otherwise , is a good livery of seisin , if the other enter in the feoffors life time : else the land descendeth to the heir of the feoffor , 2 H. 8. Br. feoff . 70. and the feoffment shall never effect .

CHAP. V. Of Advowsons .

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

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

CHAP. VI . Of Seigniories .

HItherto of Tenements .

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

Those that concern the land , are extinguished or gone for ever , when he that hath them , hath also the possession of the land that they concern , in as high and continuing an estate as he hath the hereditamen●s .

Otherwise they are but suspended or gone for the time .

34 A●s . pl. 15. As if the Lord purchase the tenancy in fee , and though it be to him and another , and that other survive . For his estate is as high in the tenancy as it was in the seigniory .

But if one that hath a rent-charge in fee , grant it for life to the tenant in fee of the land , or in fee to the tenant for life of the land , that is by a suspension of the rent . And therefore Abridgm . of Assises . in the first case it may be with a remainder over , & Park . in the second the tenant may grant it in his life , and his heir shall have 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 , enter marry with a woman Tenant in fee of the land : or if the Tenant in feoff his Lord upon condition . For there in the first case the husband may grant this rent , 5 E. 3. 16. notwithstanding the enter marriage : and in the second case , if the tenant enter for the condition broken , Park . 19. the seigniory is revived . For the estates are alike perdurable .

These are leviable by distress , or such as cannot be distrained for .

Distress is taking of chattels . As 2 H. 4. 15. a Cartfull of Corn , a fold 20 E. 4 3. of sheep , &c. a 14 H. 8. 25. mill-stone , &c. if it be not part of the Mill , though it be fixed to a piece of timber with nails , windows , and doors , when they are remov'd off from the hooks . But a Mil-stone , though it be lifted up to be picked and beaten : yet so long as it lieth upon the other stone , remaineth parcel of the mill , and cannot be distrained . No more can windows and doors hanging upon the hooks , though they be removeable , found upon the same land , but in other land not holden of him , 9 H 6. 9. 13 E. 4. 6. he cannot distrain for his seigniory , except it be by the Tenants grant , for satisfaction of arrerages for dismes lett reserving a rent , cannot be distrained for the rent , nor when they are severed from the ninth part , 11 H. 4. 40. in as much as there is no distress but upon land in demesne , 3 Mar. Pl. 154. neither could a distress he taken upon a Pistary , but that it containeth land and demesnes .

Prerogative .

9 H. 6. 9. 13 E. 4 6. The King may distrain in another land of the same mans for his seigniory or rent-charge , but so shall not the grantee . 9 H. 6. 9. is , That a common person cannot distrain for his seigniory , but in the land holden of him , except it be by his Tenents grant . But the King may in any place .

13 E. 4 6. is , That the King for his services or for a rent-charge , may distrain in all his Tenants lands . But so shall not the Kings Grantee .

Statutes .

Marlb . c . 15. Distresses shall not be taken in the High way or Common street ; but by the King or his Officers having special authority .

Artic . Cler c . 9. Nor in the ancient fees of Churches .

The distress being put in pound overt , or open pound ; that is , some place where the owner may lawfully come at them , as if they be things that have life , 9 E. 4. 2. to give them meat , &c. he that distraineth shall not be charged , what hurt soever they receive , for quick Chattel must be put in pound overt , that the owner may give them sustenance : dead , need not . But if they be marred in his default that distraineth , he shall answer for them .

Statutes .

Marlb . c . 4. None shall lead distress out of the County where they were taken . The neighbour that doth it to his neighbour , shall be fined . The Lord that doth it to his Tenant shall be amerced .

1 & 2 Ph. and Mar. c 12. No distress of Cattel shall be driven out of that hundred , rape , wapentake , or lath , where it was taken : except to a pound overt within the Shire , not above three miles from the place where it was taken . No distress taken at one time shall be impounded at several places , whereby the owners shall be constrained to sue several repleries ; the pain of both these v l. and treble damages . No person shall have above iiij d . for the poundage for any whole distress impounded : and where less hath been used , there to take less , upon pain of v ● and loss of the money he hath taken above iiij d . any prescription notwithstanding .

Bare hereditaments that may be distrained for , are a Seigniory , and Rentcharge .

Seigniories are services whereby lands are holden .

Services are common to all certain Estates , or proper to Inheritances .

Common , as fealty , and rent-service , whereof fealty is incident to every such estate . Lit . 29. For Lessee for life or years , shall do fealty of common right .

But tenant at will shall not , because he hath no sure estate . And therefore the seigniory or tenancy being altered ( whether by descent or grant ) it must be done anew . Lit . 23.

All other ( both common and proper ) grow by reservation .

Lit . 19. Fealty is an oath to be faithful to his Lord for the tenements .

Rent-service is a rent to be paid to the Lord at certain set times .

Park . 127. And to this place we may referr all services that lie in feasance . As to be ones Butler , to cover his house to scour his ditches , &c. But a reservation of things in prender or user , as to have common for four Beeves , or four Cart-loads of wood , maketh no tenure .

Of which kind , two among the rest are specially to be considered ; that is to say , frank almoigne and divine-service .

Frank almoigne is , when a man of the Church holdeth freely in alms : For if an Abbot , Lit . 31. tenant in frank-almoign , alien to a secular man , he shall do fealty to the Lord , because a secular man cannot hold in frank-almoign . 7 E. 4. 10. And the Tenant in this case holdeth of the donor , and is within his fee . For the Kings grantee of strays infra feoda sua shall have them in lands holden of him in frank-almoign . And the tenant shall have against him a Writ of Mesne , or Ne injuste vexee . And if the abbot tenant in frank-almoign , and all the monks die , the Lord shall have the escheat ; for the which he is bound to say prayers , and these prayers are the services . But because these prayers are not limited in certain , he neither shall do fealty , nor is subject to distress or Cessavit , if they be not done .

The Lord must warrant such a tenant against himself and his heirs , 7 E. 2. gur . 79. Lit . 32. for aqu . and save him harmless of all manner of services , against the Lords above , which we call acquittal .

Divine service is a spiritual kind of service limited in certain : Lit . 30. As to distribute in alms to an hundred poor men , an hundred pence , &c.

These are the services whereby every certain estate may be holden .

There follow those proper to Inheritances .

The grantee whereof shall hold of the grantor by such services as he holdeth over , Park . 134. if other services be not reserved . As if there be Lord , and tenant by Knights service , and the tenant before the Statute of quia emptores terrarum infeoff a stranger of the tenancy , without any thing reserving : Now the feoffee and his heirs shall hold of the feoffor and his heirs by Knights service .

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 infeoff a stranger to hold of the mesne ; this is good , and the feoffee shall hold of the Mesne by the same service that his feoffor held , and the feoffor cannot reserve new services , for to them the mesne is a stranger ; But if the feoffment were to hold of the Lord paramount , that were void . So if the feoffment were to hold of any other stranger .

Statutes .

18 E. 1. Quia emptores terrarum . In all feoffments to one and heirs , the feoffee shall hold his land of the chief Lord of the fees by the same services that the feoffor held before . If the feoffment be made of parcel , he shall hold of the chief Lord pro particula , according to the quantity of the Land , and the feoffor set free for the part .

A mesne , that is , he that holdeth over , if it be by no greater services than the tenant holdeth of him , we call it ovelty of services , whether they be the same as each of other by xx s . or less as he by xx s . and the tenant of him by xxx s . must acquit the tenant of all manner of services against the lords paramount .

But Donees in frank-marriage cannot hold but by fealty . And therefore a gift in frank-marriage , rendring a rent , 4 H. 6. 22. the reservation is void , for it is contrary to the nature of a frank-marriage , which is , to render nothing till the fourth degree be past . Some think the reservation good , Old ten . Fol: 7. and the frank-marriage thereby destroyed . But all agree , that the frank-marriage , and the reservation cannot stand together . And that of the donor till the fourth degree be past . 17 E. 9. And therefore a gift in frank-marriage , the remainder in tail to a stranger , is a good frank-marriage , for the reversion of the fee is in the donor , which maketh a tenure between them : otherwise it is , if the remainder were in fee , Lit . 4. who must also acquit them of all manner of services . And therefore the Donees in frank-marriage may have a Writ of Mesne . 12 H. 4. 9.

Prerogative .

One that holdeth of the King , 30 H. 8. Dy . 44. as of his person , which is a tenure in chief . But if a Prince of Wales , before Statute of Quia emptores terrarum , make a feoffment to hold of his person , and after is made King , this is no tenure in chief , for a tenure in chief is the highest & most honourable service in Law , because it is to the chief head of the body of the Realm , and therefore must be immediate unto the King , and take his original creation from the King himself , not from a subject . So to hold of the King , as of his honour of Glocester , is no tenure in chief ; for it is nor of the Kings person , alienating the free-hold without license , 14 E. 3. Q. impedit . 54. forfeiteth the Land .

Statutes .

Mag. Ch. c . 31. By a common Escheat of a Barony , &c. to the King , the tenant shall n●t hold in chief .

1 E. 6. c . 4. No more when a Seigniory cometh to the King by treason or dissolution .

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

Services proper to estates of inheritances , are homage and suit of Court . For tenant for life shall not do nor take homage , Lit . 10. but only tenant in fee-simple , o● in tail , in his own or anothers right . As the husband for land that he so holdeth in the right of his wife , if he have an issue by her , shall do homage in her life time : but not after her death , if he holds himself in as tenant by courtesie . 23 H. 8. B. comprise 31. Neither can a man at this day make a mannor notwithstanding that he give land to many severally in tail , to hold of him by services and suit of Court , for he may make a tenure but not a Court , for a Court cannot be but by continuance time out of mind .

Homage is an Oath of fidelity , Lit . 18. acknowledging himself to be the Lords man : wherein the tenant must be ungirt , uncovered , kneel upon both knees , and hold both his hands together between the Lords hands sitting before him . Lit . 9. Lit . Ibid . This is to be done only to the Lord himself . But the Lords Steward or Bayliff may take fealty for him , Lit . 33. b . 24 H. 8. Br. Br. feal●y 8. and but once during the tenants life . So as having done it once , he neither shall do it again to the heir of the Lord , or grantee of the services , nor to the same Lord , if other lands do afterwards descend to the tenant that are holden by homage of him . And though it be in the Kings case .

Prerogative .

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

Statutes .

33 H. 8. c . 22. 14 H 3. St. Heb . so reciteth it . A see set down for respiring of homage in the Exchequer or other Courts .

When an inheritance descendeth to coparceners , the eldest only shall do homage .

Prerogative .

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

When one and his ancestors , whose heir he is , have held by homage of a Lord and his ancestors , whose heir the Lord is time out of mind , and the Lord hath received homage , for the alienee of tenant by homage ancestrel , Lit . 33. holdeth not by homage ancestrel , nor shall have warranty from the lord , because the continuance of the Tenancy in the tenant is discontinued . No more shall the tenant himself by homage ancestrel , if he alien in fee , and afterwards take it back again . 18 H. 6. 2. And if the Lord by homage ancestrel grant his seigniory , the tenant need not atturn , unless the grantee will warrant the land to the tenant and his heirs , for otherwise his warranty were lost , because by atturnment the homage ancestrel is destroyed , 45 E. 3. 23. 11 H. 4. 52. Lit . 33. that bindeth him to warrant and acquit the tenant . And the tenant may have a Writ of Mesne . But if the Lord have not received homage , he is not bound . Therefore such an one may compel the Lord to receive his homage by a Writ de homagio capiendo . 45 E. 3. 23.

Old ten . Fol. ult . Suit of Court is a service by coming to the Lords Court . For suit of Court one shall be distrained and not amerced , which proveth it to be suit-service . But for a suit real ( which is to come to the Leet ) he shall be amerced and not distrained : 12 H. 7. 17. yet a tenure to come to a leet or hundred , and to do there some special service , as to be a Cryer , &c. is a good service , but not suit-service . 21 E. 4. 15. And every suit-service is intended to a Court-Baron .

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

Statutes .

Marl . c . 9. None shall be distrained to do suit of Court , unless he be specially bound to it by his Charter of feoffment : except such as they or their ancestors were wont to do it , forty years before the making of this Statute , whether they were infeoffed by deed or without .

The eldest Coparcener shall only do suit of Court , and the other parceners contribute . And where there be many feoffees , the Lord shall have but one suit , and the feoffees contribute .

The particular kinds of services ( whereby lands of inheritance are distinguished ) be socage and Knights service : both draw unto them certain commodities to the Lord partly in the tenants life , and partly after his death .

That in his life is a reasonable aid or portion towards the making of the Lords eldest Son a Knight , and towards the marrying of his eldest daughter . 40 E. 3. 22. It is called ayd pur faire fits Chivalier , and pur file marrier . And if the Lord confirm to his tenant to hold by fealty and certain rent , releasing all other services and demands ; yet he shall have reasonable aid , for it is incident to the services , and not released by those words .

Statutes .

Westm . 1. c . 35. Reasonable aid shall be xx shillings for a whole Knights fee , and as much for xx l. land in Socage : and so after the rate of more , more , and of less , less . The time of levying it to make his son Knight must be , when he is fifteen years old ; to marry his daughter , when she is seven . If the father after the aid levied die before he marry his daughter ; the fathers Executors shall be charged to the daughter of so much as the father received ; or his heir , if his goods be not sufficient .

25 E. 3. c . 11 : Reasonable aid to make the Kings eldest son a Knight , or to marry his eldest daughter , shall be levied of all Land holden of the King , without mean , according to the rare in the former statute .

The other after his death are Wardship and relief .

Fitz . gard . 67. Wardship is the custody of the body and land of the heir within age , which shall be till xiiij of a woman .

Relief is a portion to be paid by the heir to the Lord .

Socage is a tenure to be done out of war : As if one hold by fealty only , Li . chap. of Soca . or by fealty and certain rent , or by homage and fealty , or by homage , fealty , and rent for all manner of services , or by escuage certain , that is to say , by paying a certain sum of money , as half a Mark , &c. and no more or less ( howsoever the Parliament assess it ) towards finding of a man for the war , when the King makes a voyage royal towards the Scots , &c. or by paying a certain rent for Castle-ward , &c.

Where the next of kin to whom the inheritance cannot descend , As if land descended of the part of the father , then the mother , or the next cosin of the mothers side , if of the part of the mother , then the father , or next friend of the fathers side shall have the Heirs wardship till xiiij . to the Heirs own use . And therefore must render an account to the heir at his full age , of the issues and profits of his lands , and of the value of his marriage , if he marry him within 14 years of age . And if he dy before the heirs age of fourteen , yet his executor shall not have the wardship ; no more shall the husband after the death of his wife , Guardian in socage . But if the wife be Guardian in socage , and the husband ( or they both by indenture ) lett the land ; yet the wife after her husbands death may enter : for in as much as she hath it only in the right , and to the use 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 .

Marl . c . 17. Guardian in Socage may not do waste , exile nor destruction , nor give nor sell the marriage but to the commodity of the heir .

Littlet . ibid . Here for relief the Lord shall have presently so much as one years rent amounts unto . As if the tenant hold of the Lord by Fealty , and x s . rent payable at certain terms of the year ( at half yearly or quarterly ) then the tenant shall pay unto the Lord x s . for relief over and above the x s . that he shall pay for the rent , and that by and by , without tarrying till the day of payment of his rent , and of what age soever that the heir be .

Prerogative .

33 H 8. Br. Livery and ouster lemain 60. Stam . prer . c . 35. H. 6. 52. F. N.B. 25● . Tenure by Socage in chief giveth the King primer seisin , or the value of that land by a year , if the heir be of the age of xiiii . at his ancestors death : therefore there the heir shall be driven to sue his livery , but not if he be under xiiij , at the death of his ancestor . And if being under xiiij . he sue his livery , it shall be una cum exhibemus : but not if he sue it at xiv . If one hold of the Kings person to do something concerning war , but not to be performed by the person of a man , as to give him yearly a bow , sword , dagger , &c. it is called petty Serjeanty , and is but a tenure in Socage .

Knights service is a service touching war to be done by the body of a man . Lit . Chap. of Knights-service As if one hold by Escuage uncertain , that is to say , by being himself or some other for him with the King 40 days , well and conveniently arrayed for the war ( if he hold by a whole Knights fee , or 20 days if he hold by the moity of a Knights fee , and so by proportion ) whensoever the King maketh a voyage royal into Scotland &c. else to pay so much money as shall be assessed by Parliament . F.N.B. 83. c . Or if a man hold of any Lord to keep his Castle in time of war ( which is called Castle-guard ) or to blow a Horn in time of invasion by enemies , which is called Cornage .

To all Knights-service homage is incident , but not unto Socage . 7 E. 4. 28. Here the Lordship is the Lit . 22. Lords Lit . 72. to his own use Therefore his executors shall have the ward during the heirs non-age Br. gar . 111. and that till xxi . of an heir male . And therefore if the Lord marry a male that is his ward , before 21. yet he shall be in ward for the land till that age .

Statutes .

Mag. Ch. c . 3. The Lord shall take homage of the heir before he have wardship .

Marl . c . 6. If one enfeoff his heirs within age to cause the Lord to lose his wardship , and die , yet the Lord shall have the wardship .

So when a fraudulent feoffment is made by a tenant , upon condition to revert , after certain years , to him or his heirs , if the feoffees pay not a certainsumm , to the value or more than the value of the Land . In this case the Lord shall have a Writ de custodia reddenda , and if ( being able to averr this matter ) he recover , yet the feoffees shall have the Land again , when the heirs come to age . The Lord not being able to averr this , shall render the feoffees their costs and dammages .

32 H. 8. c . 1. Two Joyntenants or more , and the heirs of one holding of the King , and he that fee dieth , the King shall presently have the wardship and marriage of the body of his heir , if he be within age . Saving to every woman her dower of two parts of those lands , divided from the third part , as abovesaid , and not otherwise , and saving to the King during the Wards minority , the reversion of such Joyntenants , and Tenants in dower .

Mag. Ch. C. 3. The heir being made knight within age , yet the land shall remain in the Lords custody to the end of the term .

The wife shall be barred of her dower , both dower 2 H. 7. 6. at the Common law , and dower 4 H. 3. dow . 174. ex assensu patris , or 1 H. 3. dower 187. 2 H. 7. 6. ad ostium ecclesiae ; so long as she dertaineth the heir from him . But in pleading she must shew the heirs name , and whether it be male or female .

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

Statutes .

Merton C. 7. The Lord marrying the heir within fourteen years of age , in such sort as he be disparaged , shall lose the custody and whole commodity of the wardship , if the Wards friends complain of it :

The heir full of age shall satisfie his lord for the value of his marriage , as much as any man would give , before he receive his Land .

Merton C. 6. An heir , after fourteen years of age , marrying himself without the Lords license ( who tendreth to him a covenable marriage ) the Lord shall hold the land , after the heirs full age of one and twenty years , so long till he may receive the double value of the marriage .

Westm . 1. C. 22. The Lord may hold the land of heirs females , two years after their age of 14. within which two years , if he marry them not , they shall go quite , without giving any thing for the Wardship or marriage . And if they will not accept a covenable marriage tendred by the lord , he shall hold the land till xxi . and over , till he have taken the value of the marriage .

4 and 5 Ph. and M. C. 18. A woman about 12 , and under 16 , agreeing to a person that contracteth matrimony with her contrary to the form of the stat . ( which see fol. 〈◇〉 ) the next of her kin to whom the Inheritance should come after her death , shall from the time of such assent , have all the lands , &c. which she had at the time in possession , reversion , or remainder during her life .

If one hold sundry lands of divers Lords , the wardship of body goeth to the Lord of that land which the tenant held first . F.N.B. 142. Who is called a Lord by priority , and the other by posteriority . And it is the feoffment of the land which maketh the priority : for the pleading is , That he holdeth the land of him per antiquius feoffamentum , then he holdeth the other land of the other . Therefore if the Tenant of lands holden by priority , maketh a feoffment in fee , and take an estate back again in fee , this land shall be holden by posteriority . But if the Lord by priority grant his seigniory in fee , yet the tenure shall be of the grantee by priority . So though the grantor take an estate of the Seigniory back again in fee .

Prerogative .

The King shall have the wardship of body , 12 E. 3. pr . 23. though the tenure of him be by posteriority . But his Grantee of the Seigniory shall not .

The eldest child 33 H. 6. 55. whether Son or daughter , being heir apparent to the father , shall not be in ward for his body during his fathers life . But if one having a son , take a wife seised of Knights-service , and hath another Son by her , F.N.B. 143. l. and after the wife dieth ; this second son shall be in ward during his Fathers life , unless the husband be intituled to be Tenant by courtesie .

Prerogative .

Stamf . prer . 1. The stat . of prer . c . 1. 16. in this po●nt but a declaration of the common Law . Tenure by Knights-service in chief giveth to the King the Wardship of all other lands also . And further 33 H. 8. Br. ouster le main 66. primer seisin , or the value of them all by Stam . prer . 14. half a year ( if the heir were in ward ) by a whole year ( if he were not ) Br. reli●f 12. which primer seisin must be paid , and relief ●lso .

Relief for land holden by Knights service , amounteth to an C. sh . for a whole Knights fee , to a C. marks for a Barony , and to an C. pounds for an Earldom .

Mag. Chart . cap . 12. calleth this old Relief , and according to the old custom of the fees , which proveth that Statute to be but an affirmance of the Common Law .

Old Nat. Brev . per Br. relief . 13. If the heir be within age at the Tenants death , no relief shall be paid to the lords that are to have the Wardship . And if one hold of several common persons by Knights service , the Lords by posteriority , shall have no relief because they are to have the wardship of the Land holden of them , 24 E. 3. 24. though the Lord by Priority only have the wardship of the body . But if in that case there be any Land holden by Knights service in chief , the heir at his full age shall pay relief to the other Lords . For there the King hath the Wardship of all his lands .

Prerogative .

33 H. 8. Dy . 45. Grand Sergeanty , that is to say , Tenure of the Kings person , for every grand Serjeanty is a tenure in chief , being of none but of the King , to do unto him a more special service whatsoever by the person of a man , as to bear his banner or lance , Lit . 34. to lead his horse , to carry the sword before him at his coronation , to be his sewer , butler , or carver , to be one of the Chamberlains of the receipts of the Exchequer , or to find a man to warr for him wheresoever within the four Seas , for if he can find none to do the service for him , 11 H. 4. 72. Lit . 36. he must do it himself , is a special knights service in chief . where the King instead of relief , Lit . 35. 11 H. 4. 72. shall have the value of the Land by a year .

CHAP. VII . Of Rent-Charge .

REnt-charge is a rent with liberty to distrain . Lit . 48. As when a man seised of land granteth by a Deed Poll , or by Indenture , a yearly rent going out of the same land to another in fee or fee tail , or for term of life , &c. with clause of distress , or maketh a feoffment in fee by Indenture , reserving to himself a certain yearly rent , with clause of distress .

CHAP. VIII . Of Rent-seck .

BAre hereditaments concerning land ( for which no distress can be taken ) are a rent-seck and common .

A Rent-service is a rent without liberty to distrain . Lit . 48. As where a rent is so granted or reserved as before , without clause of distress .

When a Rent is granted for equality of partition among Coparceners , as upon two houses , one worth xx s. a year , the other worth x s . allotted one to the one coparcener , the other to the other ; and that coparcener that hath the house worth xx s. a year , to pay , v s . yearly to the other , this rent may be distrained for though no such livery be granted .

The grant of a seigniory , rent-charge , and rent-seck , as also of the remainder or reversion of any of these , or of the land it self , is nothing worth without Atturnment , that is to say the agreement of the tenant that presently must be charged . As Lord , Mesne , and tenant ; the Lord grants his seigniory , Li . ch . atturnm . the Mesne must atturn , and not the Tenant prevail : for the Mesne is tenant to the Lord , Lord , and Tenant , the Tenant letteth the Land for life , or giveth in tail , saving the reversion to himself : now if the Lord grant his seigniory , he in the reversion must return to the grantee , and not the tenant for life or in tail ; for he in the reversion is Tenant to the Lord , and not the other . But if the Tenant had lett his land to one for life , the remainder in fee , there upon a grant of the seigniory , the Tenant for life must atturn , for he is Tenant to the Lord . So is not he in the remainder , whilst Tenant for term of life liveth . If lands be lett for years , or given in tail , saving the reversion : Upon a Grant of the reversion , the Tenant of the land must atturn . And an Atturnment may either be by words ; as to say , I agree or am content with the Grant ; or I attorn to you , and become your tenant by force of the grant : or else by delivering to the grantee , a peny , half peny , or farthing in name of attornment , or by any other matter implying an agreement , as a surrender to the Grantee of the reversion , praying in aid of him , &c. And if such attornment be not to the grantee in the life of the grantor , the Grant is meerly void .

In the grant of a reversion depending upon a Free-hold , Lit . 128. the attornment of the Ftee-holder is sufficient , though he be not the tenant that presently must be charged . As if lands be lett to a man for years , the remainder to another for life , and he in the reversion grant his reversion to another ; the attornment of him in the remainder is sufficient .

CHAP. IX . Of Common .

COmmon is a profit to be taken in anothers land . As 9 H. 6. 35. feeding his beasts , &c. And if a man give to I. S. in frank-marriage with his daughter , Common for all his beasts , or other mens ( if he should have none of his own ) to do his business yearly , and to feed with the beasts of the grantor where they should go : there if the grantor come afterwards to have no beasts , yet the grantee shall have his common . But if the grant be wheresoever the beasts of the grantor go , &c. there the grantee shall not have common , but when the other beasts are in common . Also upon a grant of common throughout a manner , yet he shall not common in garden , 2 E. dow . or land sowed , &c. nor take his common with beasts that are not commonable , as hogs , &c.

So of a common of estovers , that is to say , taking of reasonable house-boot , and hay-boot , &c. And such manner of profit ( though they be appendant to the freehold ) cannot be parted . Ibid . 2. E. 2. For if such an heritage descend to parceners , one shall have the whole profits , & the other sisters an allowance . And the wife for her dower shall have but an allowance only .

Statutes .

Merton cap . 4. The Lord of waste , woods and pastures , may approve against his Tenant , if he leave sufficient common and pasture to his Tenants , with egress and regress according to his land .

Westm . 2. cap . 46. Such a Lord may approve in like sort against his neighbours which have common appurtenance , and for his Wind-mill : necessary increase of Court , or Court-lodge .

Hither belongeth chemin , or way over ones Land from one certain 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. X. Of Villanies .

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

Of the first sort are Villains . A Villain is such a servant as himself , and whatsoever he possesseth , Land , Rent , 22 Ass. pl. 37. &c. but not things in action , as an obligation , debt , covenant , or warranty made unto him , is the Lords 3 H. 4. 15. if he claim it . But the wife which the villain marrieth after his purchase of land , and before the Lord enter , shall be endowed . 19 E. 3. Dow . 171. And if he make a feoffment before the Lord enter , the feoffee shall retain it , and his Executors shall have the goods not claimed by the Lord in his life time .

Statutes .

19 H. 7. cap . 15. Upon a feoffment made to the use of a villain , the Lord may enter into the land it self .

Prerogative .

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

18 E. 4. 13. The children of a Villain are also Villains . And if one confess himself a villain in Court of Record , the issue he had before are frank , but those born 18 E. 4 ibid . 19 H. 6. 32. after are villains .

41 E. 3. vill . 6. Villenage beginneth by confessing a mans self to be one in a court of Record : And therefore in a Praecipe quod reddat , if the Tenant say that he is Villain to I. S. and holds the lands in Villenage ; the Demandant saith he is frank , &c. and he is found frank by the Jury : yet he remaineth a Villain to I. S.

11 H. 7. 13. Lit . 45. A Villain is set free , we call it manumission or infranchisement , when the Lord enableth him to possess any thing against himself . As by granting him an annuity , making an obligation or lease for years unto him , or a feoffment of any lands by deed , or without : and whether it be in fee-simple , fee-tail , or for life . But to make a lease at will unto him , is no infranchisement : for he hath no certainty of his estate , seeing the Lord may put him out when he will .

Statutes .

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

CHAP. XI . Of Annuity .

THose by reason of the person , are annuities , and Corr●dies , or Office . Annuity is a yearly Rent to be had of the person of the Grantor . Lit . 48. As upon an annuity 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 yearly paid x s . at Easter , he may distrain for it in the Mannor of D. This is a Rent-charge ( for the Mannor of D. is charged with a distress ) but no annuity : nor the person of the Grantor charged , because he granteth not any rent , but granteth only that he may distrain . So if by express words he insert in the Deed of the grant of a Rent-charge , Proviso quod non exte●dat ad onerandam porsonum meam per breve de annuitate , &c.

CHAP. XII . Of Corrody .

COrrody is a partition for ones sustenance . Be it bread , ale , herring , a yearly robe , 25. Ass. pl 7. or sum of money for the robe . 31 H. 6. 16. Ass. 16. So of a chamber and stable for my horses , when the same is coupled with other things , as with certain messes of flesh , bread , ale , &c. But a chamber and stable themselves are not any Corrody . And in the first case they shall pass without livery and seisin , but not in the other .

CHAP. XIII . Of Office .

OFfice is a duty of attendance upon a charge . And therefore the grant of an office to an ignorant man , 5 E. 4. Rot . 66. per Br. office 48. that hath utterly no skill at all , is meerly void . As if the King by his letters patents make a Clark of the Crown in the Kings Bench , which was never exercised in the Office , nor in any other Office there , & so utterly insufficient to serve the King & his people , the grant is void , and the Justices may refuse him . So is the presentment of an unlearned man to a Church meerly void . Likewise the Non-feasance and the not attendance upon an office , 39 H. 6. 31. hath a condition in Law annexed to it . As if the Marshal suffer but one voluntarily to escape of the prisoners , it is a forfeiture . But in negligent escapes what shall make a forfeiture of the office , & what not , both for the number of negligent escapes , and for the greatness & smallness of them ( as if some that escape were committed unto him for surety of peace , & were suspitious men ) lieth wholly in the discretion of the Court : & the King may himself have an office : 1 H. 7. 29. as a forrestship granted to one in tail , the remainder to the King & his heirs is good : for although he cannot in respect of the Majesty of his person , exercise the office himself ; yet he may grant it over to one that may exercise it .

Statutes .

5 E. 6. c . 16. The office or deputation of any office , or any part thereof , which concerneth the administration or execution of Justice , or the receit , controlment , or payment of the Kings money , &c. or surety of the Kings lands or customs , or any administration of necessary attendance in the Kings Custom house , or the keeping of the Kings places of strength , or the Clarkship of any Court of Record , shall not be bargained & sold , or any reward or agreement of reward taken for it , upon pain , that the seller , &c. shall foreit all his interest in the office or deputation , &c. And the buyer be a disabled person , to occupy or enjoy the same : And all bonds , &c. to be void , as against him by whom they are made . Provided , That all acts executed by any person offending before he be removed from his office , &c. shall remain good .

This Statute extendeth not to any office of inheritance , nor to any Parkership , nor to any offices to be given by the chief Justices of the Kings Bench , or Common place , or by any Justices of Assise .

CHAP. XIV . Of Franchises .

BEside the Hereditaments already handled 15 E. 4. 7. 4 El. Pl. 219. 6 E. 3. per 30. H. 8. Dy . 44. there be certain other derived from the Kings Prerogative , which are termed Franchises . For all Franchises are derived from the Crown : and therefore are extinguished , if they come to the Crown again by escheat , forfeiture , &c. For he greater drowns the less .

A Franchise is a royal priviledge in the hands of a common person : so we call every subject : and is forfeited by misusing of it . 22 Ass pl. 34 : As keeping Fair or Market upon Monday , when Wednesday is granted him : or keeping Fair upon two days , when h● hath but one granted : for that is a misuser . But keeping market upon a Monday and Wednesday , when only Wednesday is granted , is a forfeiture but of that which he usurps more than is granted ; claiming a Fair . 2 H. 7. 11. &c. for two days by patent , when only one is granted , is a forfeiture of both . But if he claim one by Patent , and another by Prescription , and this latter sound against him ; yet he forfeiteth but that day only . 22 Ass. ibid . Misusing of any point , where there be many in one Franchi●e , is a forfeiture of them all . But not where the Franchises are several . But non user of a market . &c. is no forfeiture of it , 2 H. 7. ibid . as it is of the Office of the Clark of a Market , and such like , which of necessity must be used .

Statutes .

27 H. 8. c . 24. No subject shall have authority to pardon any felony , or any Accessaries to felony , or any outlary for such offences . Nor to make any Justices of Eyre , Assise , Peace , Goal delivery . All original Writs , inditements of Treason , Felony , & Trespass , and Process upon the same , shall be only in the Kings name And the Teste in his name that hath the Franchise .

Every Writ and enditement , whereby a thing is supposed to be done against the Peace , shall be supposed to be done against the Kings peace only , and not against the peace of any subject .

The King shall have all fines , issues , amerciaments , and forfeitures lost by any Offices of Franchises for non execution , or insufficient returns of process , or for any misdemeanor concerning their office , with many provisoes in the same Statute .

The kinds of Franchises are divers , and almost infinite .

9 H. 7. 11. Of such sort are the liberty of having a Court of ones own ; of drawing causes out of the Kings Court into his own . In the first case we call it tenere placita , when he is to hold it before his Bayliff in such a place , and therein a man may prescribe . ( In the other case we call it Conisance of plea : 35 H. 2. 66. and that lieth not in prescription but in demand , and is always of Record ) of returning Writs , &c. Also Warrens which a man may have 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 , reserving the Franchise . Markets 2 H. 7. 11. 22 Ass. pl. 34. Fairs , toll , 9 H. 6. 45. of every buyer for things he buyeth there , not 28 A●s . pl. 53. being for his own expences . For 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 Fair , but for the things he selleth . But by custom he may for every thi●g brought to the Fair , and for his standing also . And whatsoever liberties or commodities else that ( created first by the Kings special grant , or of their own nature belonging to him ) are given to common persons to have any manner of estate in .

CHAP. XV . Of Chattels : where , of Testaments .

SVch then is the nature of an hereditament in his sundry sorts and kinds .

Chattels are possessions , wherein there cannot be several estates .

All ones own Chattels real , as 20 E. 4. 9. a Lease for years , &c and personal , as corn Park . 99. growing upon land , but not trees , for they are parcel of the Freehold , &c. whether in possession , or that any is indebted to him in , but not those he is only to recover dammages for , as in goods taken from him , or to be accounted for 7 El. Pl. 290. . Neither could the Executor at the Common Law have an action of account or trespass de bonis asportatis in vita testatoris . may be given away or devised by his Testament ; o●herwise called his last Will : and the things devised are Legacies .

Te●tament is an appointment of some person , whom we call an Executor , to administer them for him after his death . 37 H. 8. B. ● . s● . 20. For wi hout naming Executors , or if they all 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 testamentary . And administration is it which makes an Executorship : 3 H. 6. 7. That if one make three Executors , and will that none shall administer but only one ; this one is sole executor . Also this administration is for the Testator and his use , so as the Executors themselves cannot make their Will 19 El. Pl. 325. of these goods , nor 17 H. 8. 22. 21 H. 7. 29. partition between them , &c. nor the husband which marrieth a wife that is an Executor , shall have those goods by entermarriage with her : neither shall the Executor● forfeit them by outlawry . 10 E. 4. 1. Therefore Executors represent the person of the Testator . So as a villain executor may have an action of debt against his Lord , for debt due to the Testator . Littl●t . 41. And outlary excommengement , 21 H. 6. 30. &c. is no disablement to bring an action as Executor . 42 E. 3. 13 And all of them are but one person : 48 E. 3. 14. whereupon it is , That the release or attornment of one is good for both : 32 E. 3. Quid juris clamat . that in an action brought against them , as debt , covenant , and such like ; ●n● cannot answer without the other by course of the Common Law : Till the Statu●e 9 E. 3. cap . 3. 36 H. 6. 17. and that they cannot have every one by ●imself a several plea in abatement of the Writ , &c.

Yet their power , both for ●he time when , and the things which they shall administer , 32 H. 8. B. Exec . 155. may well enough be div ded . As a man may make A. & B his executors , & that A. shall not intermeddle during the life of B. or make one his Executor touching his goods in D. and an●ther his Executor , touching his goods in S.

Statutes .

32 H. 8. cap . 1. He that hath lands , tenements , or hereditaments in Socage , and none holden by Knights Service , or Socage in chief , may devise all by his will in writing , or give all by an Act executed in his life . So may he that hath land holden by Socage in chief , and other holden of a common person by Socage , and none holden by Knights-service : saving to the king , primer seisin , relief , suing of the same out of the Kings hands ; fin●s for alienation , &c. and all other duties for the Socage in chief , as before hath been accustomed .

He that hath lands , &c. holden by knight-service ( whether he have other lands holden of the King , or of any other person , by Knight-service , or otherwise , or not ) may do the like for two parts in three to be divided in certainty for the advancement of his wife , children , and payment of his debts . Saving 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-service ( whether of the King alone by a Knight-service not in chief , or of a common person , or some holden of the King , some of a common person ) and other lands in Socage , may devise by Will , or give by any Act executed in his life , two parts of that holden by knights service , and all the Socage : Saving to the Lord of the land holden by Knights service , the wardship of a full third part thereof , without any charge , dower , &c.

Provided , That every one shall sue his livery , relief , and heriot , as if this act had never been made .

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

And if the party that maketh the Will or other act , be seised in Coparcenary , or in common , it shall be good for so much as in himself of right is .

The wardship , relief , primer seisin , &c. shall be of lands that descend immediately after the death of him that maketh the will or other act , as well in fee-tail , as in Fee-simple : and the devise of two parts residue shall be good , though it be of all his fee-simple lands . Such a will shall be good for two parts ( in case only where two may be devised ) though it made for the whole , or more than two parts .

Such wills made by any woman covert , or person within 21 years of age , Ideot , or non sanae memoriae , shall not be good .

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

Westm . 2. cap . 23. Executors from henceforth shall have a Writ of account , and like action and process in the same writ , as t●eir testator should if he had lived .

4 E. 3. cap . 7. Executors shall have an action for a trespass done to their testator : as of his goods and chattels carried away in his life , and recover their dammages in like manner , as he whose Executor he is should have done if he had lived .

The Executors must prove 21 E. 4. 24. or make probate of the Will ( to be a true one ) in the Spiritual Court , and be 21 El. Pl. 544. sworn to see it performed .

If many Executors be made , and one refuse ; 21 E. 4. 23. yet he may administer at his pleasure , and the o●her must name him in every action for any duty due unto the Testator , and his release shall be a barr of the whole duty . And if he survive the other Executor , he shall have the action , and not the Executor of him that died .

Otherwise it is if they all refuse , 36 H. 6. 9. for there the Testator dieth intestate .

But an Executor , once administring , 9 E. 4. 47. as if he sell land in use , appointed by the will to be sold , and the money to be disposed , &c. can never refuse after .

Executors must answer all certain duties of the Testators , but not for 11 H. 4. 46. a trespass done by him , burning of a Writing bailed unto him by Deed indented , receit ( c ) of rents , or occupation of other mens lands , as Bailiff having sufficient of his Chattels , which we call assets entermains , to do it . And therefore shall be charged of their own goods , F.N.B. 117. c . 2 H. 6. 12. 11 H. 7. 12. if they waste the Testators .

But so , as duties that grow by specialty are to be answered before other duties , and legacies to be last of all d●livered : 21 E. 4. 21. without which delivery , the devisee can neither enter 20 E. 4. 9. into a Term , nor take 2 E. 4. 30. 37 H. 6. 30. . a chattel personal devised to him . But upon a lease devised for twenty years to one for the first x . years , the remainder or remnant of the term to another : 20 El. Pl. 5 19. or devised to one for so many years as he shall live , 20 El. Pl. 539. the remainder to another : a Delivery to the first Devisee serveth for him in the remainder also . So , though it be but the occupation of a term , which is so devised : for the occupation and profits of the land is all one with land it self . But if the occupation of a Book , 37 H. 6. 30. & per 20. El. Pl. 521. Glass , or other chattel personal be devised to one for life , and after his death to another in like sort , there a delivery to the first , is no delivery to the other , for their occupations are several , and in such Chattels personal , the occupation is distinct from the property .

In these devises the Testators intent standing with the rules of Law shall be taken . 13 H. 7. 13. As where a man deviseth Lands ( devisible by custom ) to his son and heir after his wives death ; the wife hath an estate during her life by implication , in the intent of the devise . A devise to one and his heirs males , is an estate tail .

But a devise to I.S. in fee upon condition , 27 H. 8. 27. 29 H. 8. Dy . 33 ▪ if he pay not to I. D. a certain sum of money , then I. D. to have it in fee , is a void condition and remainder , for it is contrary to law . But a devise of the Fee-simple to Alice S. and after her death to B. is only an estate for life , the remainder for life to B. the remainder to Alice in fee . 19 El. Dy . 357. So as the husband of Alice ( if she dy in the life of B. ) cannot be tenant by courtesie .

The Executor of an Executor is Executor to the first Testator , 10 E. 2. Ex. c . 110. and may have an action of debt for the arrearages of an annuity due unto him .

Statutes .

25 E. 3. cap . 5. Stat. 4. Executors of Executors shall have Actions of debt , account , and of goods carried away of the first Testators : and execution of Statute merchants , and Recognizances made unto him .

If no will be made , the Ordinary shall administer all the chattels that were in his possessions . 7 El. Pl. 277. For he which had the charge of his Soul in his life , is presumed the fittest person to have the care of his disposing the goods in pios usus after his death ; and therefore the ordinary may seise the goods , and must keep them without wasting , and may give , alien , or sell them at his will , and dispose the money coming thereof ad pios us● : and if he do not so , he breaketh the confidence which the Law reposeth in him . Be yet his gift or alienation remaineth goo● by law . Howbeit being a spiritual Governor , he shall not be subject to tempor● suits , nor have any action of debt or otherwise for any thing due to or by the i●testate .

Statutes .

Westm . 2. cap . 19. The ordinary 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 shall sue and be sued , and be accountable to the Ordinaries , as Executors should .

21 H. 8. cap . 5. Administration shall be committed to the widow of the Intestate , or to the next of his blood , or to both , at the discretion of the Ordinary . Where divers persons next of the blood ( which indeed are in equality of degree , with the intestate ) claim administration , or where one only claimeth it as next of the blood ( where in truth divers are in equality of hindred , as aforesaid ) the Ordinary shall be at his choice to accept one or more , making request . Where but one or more , and not all ( being in equality of kindred ) make request , the Ordinary shall be at liberty to admit the Widow , and him or those only making request , or any one of them , at his pleasure . The Ordinary shall commit administration according to the rule aforesaid , upon pain of ten pound .

The Statute Mag. Char . cap . 18. is , That the Kings debts shall be levied of the dead mans goods , and the surplusage delivered to the Executors Salvis pueris , & uxori rationabilibus partibus , which proveth that this rationabili parte was at the common law .

But Mag. Char . c . 28. 16 , &c. ut in F. N. B. 122. l. 4. Br. ration . par . 6. whether any Will be made or no , his wife , and such children as are not advanced by him in his life ( as if a daughter be covenably married by him , this is a sufficient advancement ) shall have a part to their own use ; that is to fay , 3 E. 3. det . 156. one third of all ( after his debts paid ) to his wife , and the other to his children . And a Writ de rationabili parte bonorum is given to recover it .

CHAP. XVI . Of Chattels Real .

CHattels are Real , or Personal .

Real , as terms for years , and wardships , whereof we have spoken before .

CHAP. XVII . Of Chattels Personal .

PErsonal as Plate , Iewels Silver , Gold , Implements of Houshold , Cattel , and all goods and moveables whatsoever , Corn sown upon the ground &c. For that is devisible by will , Park 99. 5. H. 7. 10. shall be forfeited in outlawry of debt or trespass .

The Ownership of a chattel personal is termed a property , 3 H. 6. 55. 12. H. 8. 3. 18. H. 8. 2. For fowl of Warren . 12 H. 8. 3. 18 H. 8. 2. 3. H. 6. 55. which of wild beasts both Fow●es of the air , Fishes in the Sea , Beasts upon the Earth , and generally all Fowl of Warren , Feasants , Patridges , Deer , Conies , Hares , and such like , cannot be in any , and therefore it is no felony to steal them : and a writ of Trespass shall be Quare Warrenam suam intravit & mille lepores cepit , without saying suos , Nor after they are made came , longer than they remain in ones possession . 12 H. 8. 3. As my tame Hound that followeth me , and is with my servant , my Hawk that is flying at a foul ; my Deer that is chased out of my Park or Forrest , 12 H. 8. 11. and the Forrester maketh fresh suit , these all remain in my possession , and the property is in me : but if they stray , it is lawful for any man to take them . 12 H. 8. 3 , & 11. Otherwise it is of Hens , Capons , Geese , Ducks , Peacocks , &c. 18 H. 8. 2.

Prerogative .

Treasure hid in Stamf . 40. the earth , not upon the Earth , nor in the Sea , and 27 Ass. pl. 19. coyn though not hidden , being found 10 El. Pl. 322. is the Kings : we call it treasure-trone .

Cattel also that stray into anothers land are the Kings after a year and a day , if being proclaimed at the Market in 2 several towns next adjoyning , 14 H. 6. 5. 31 E. 3. estray 4. Br. estr . 10. 33 H. 8. Br. estray 4. the owner do not claim them . For if a Lord keep a stray three quarters of a year , and yet within the year it strayeth again , and another Lord getteth it , the first Lord cannot take it again : for till a year and a day past , and Proclamation made , he hath no property . Stamf . pror . 37. and D. St. prer . Br. wreck 3. that this was at the common Law . And therefore the possession of the second Lord is good against him .

Goods wrecked are also his .

Statutes .

West . 1. c . 4. Where a man , dog , or cat escape alive out of ships , it shall be no wreck . But the things shall be prized by the Sheriff or Coroner , and delivered to those of the Town where they be found , to answer for them . So as if any within the year and day prove that the goods be his , they shall be restored to him .

10 El. Pl. 322. The King being Tenant in Common of an entire Chattel personal , shall have the whole . As if an obligation be made to two , or two possessed of a horse , and one is attainted , the King shall have the whole duty of the obligation , and the horse .

Goods that belong to an alien enemy , 7 E. 4. 13. 38 H. 8. Br. denisen 10 8. 16. 20. any body may seise to his own use . But an alien born in amity may have property in goods , and buy & sell , & their bargains good : and may also bring personal actions .

7 E. 4. 13. The taking of goods by an alien enemy in battel , devesteth the property from the owner , if he come not before Sun set to claim them .

12 H. 7. 27. Churchwardens are enabled to have goods to the behoof of the Parish . For they are charged to find divers things belonging to the Church , as ornaments , and such like : And therefore in reason they should be enabled to purchase goods . And thereto extendeth their Corporation . And all ●he Church goods , as 8 E. 4. 6. books and ornaments 11 H. 4. 12. bells hung up in the Church , are theirs , and 11 H. 4. 12. they may have an appeal of robbery of them , or a 8 E. 4. 6. trespass , and count to the dammage of the Parishioners . But they cannot give or release them , 13 H. 7. 10. for that is to the disadvantage of the Church . 8 E. 4. 6. And if they do , the Parish may chuse new Church-wardens , who shall have an action of account against them 12 H. 7. 27. But Churchwardens are not enabled to make a feoffment a lease for life , or perhaps for years , or such other things as hare continuance .

CHAP. XVIII . Of Baylment and Contracts .

TO Chattels personals , Bailment , and Contracts do belong ; Baylment is a delivery of goods in possession , and is either to keep or employ . To keep , when only the custody is committed to him , and is a simple Baylment or pledge .

A simple Baylment , 5 H. 7. 18. when he receiveth them to keep for another : whether it be for the Bailor to re-deliver him again : in which case the Bailor may retake them without request : or for a stranger to bayl them over to him . In which case , 1 E. 5. 2. before such bayling over , the Bailor may countermand the Bailment , and command the Bailee to deliver them him again , and shall have an account upon refusal . For in neither of these cases the property is out of the Bailor .

A pledge is when he 5 H. 7. 1. receiveth them in assurance for another thing had of him at the time . As to take a chain of gold for money then delivered , &c. but not for satisfying of a debt he oweth . But the property of the pledge remaineth in the owner ; for he shall bear it , if it be casually lost or broken : and the other that bath the pledge , shall not be attached by it , in as much as he is not owner .

The baylment of goods to employ is , when the Bailee hath the things themselves to use to anothers profit . As to sell meliori modo quo poterit , &c. Where , if he sell that for 12 l. which is worth 1000 l. and refuse a better price , the party hath no remedy .

Contract is a mutual agreement for the very property of personal things , where the duty growing upon it cannot be apportioned . As if I sell my own 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 overt ) without Covin or notice whose they are , altereth the property , if toll be paid for it .

Hither belong certain ( as it were ) contracts in Law , though not arising from the special agreement of the parties . As he that findeth anothers goods , is chargeable by reason of the possession to him that right hath : he that receiveth money to ones use , or to deliver over to him , is chargeable as a receiver . He that entreth into land of his own head , and receiveth the profits of it , or parents that occupie land purchased by an Infant , are chargeable as Bayliffs . And if a Liberate be delivered to the Clark of the Hamper , who hath assets in his hands , an action of debt lieth againh him . So doth it upon every judgement .

CHAP. XIX . Of Accord and Arbitrement .

THese are the things which belong to Chattels personal in general : for the interest of personal things , uncertain accord ( otherwise called a concord ) and arbitrement lie . As of a trespass done , for the dammages are uncertain ; but of debt or dammage recovered in certain it is otherwise , unless it be joyned with trespass or other things uncertain : for then all put together , lie in arbitrement or concord . So of Waste , detinue of charters of land , which are things in realty , annuity , &c. they lie not in arbitrement or concord .

Accord is an agreement between the parties themselves : not by mediation of friends ; for then it is an arbitrement upon a satisfaction executed . 15 H. 6. accor . 1. As for one at his own cost to agree , I.S. and another , whom I.S. hath trerpassed ; this may be a satisfaction to I. S. Otherwise it is , if he do but endeavour to agree them . And this satisfaction must be executed : for a tender 17 E 4. 8. of money without payment , or an 6 H. 7. 11. agreement to pay money at a day to come , is no satisfaction before the day come , and the money be paid : nor shall be pleaded in bar of an action of Trespass : for upon an accord , the party hath no means to compel him to pay it , as he hath upon arbitrement . But being paid at the day , it is a good plea , if the other afterwards bring an action .

16 E. 4. 9. Arbitrement is an award of satisfaction by others whom they chuse to judge between them . 19 H. 6. 36. As to arbitrate because A. ( one of the parties ) hath done a greater trespass to B. ( the other party ) than B. hath ●o him ; therefore that A. should give B. money in satisfaction , and B. be quit against him , is a good award . But that one shall be non suit in an action , is not good ; for after non suit he may begin again , whereas the arbitrement ( which must be in some sort a satisfaction for the dammages ) ought in that respect to be a determi●ation of things awarded ; where the award of a personal chattel altereth the property thereof . So as he may have a detinue 2 El. Dy . 183. for it , or debt if it be of money , or such like , to be paid for 16 E. 4. 9. a debt due , or 19 H. 6. 38. amends of a Trespass . And therein an arbitrement differeth from an accord . But an award of an Acre of land , &c. is not good unless the acre be delivered .

Et jam prima mei pars est exacta laboris .

THE THIRD BOOK OF LAW .

CHAP. I. Of a wrong without force .

FOR of possessions ( the first and hardest part of Law ) we have 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 offender is to be amerced , or to pay a petite summ of money to the King . And 38 E. 3. 31. 9 H. 6. 2. if he be a Lord of the Parliament ( whom we call a Peer of the Realm ) then a C.s. As if 38 E. 3. ib . ones writ abate , or if in 9 H. 6. ibid . an Action of Trespass against two , for hunting and taking two Deer , one Defendant be found not guilty , the other guilty of taking only one Deer ; here the Plaintiff ( if he be a Peer of the Realm ) shall be amerced CC . s . one C.s. against him that was found not guilty at all : the other hundred shillings against him that was acquitted of one of the Deer .

The Kings wife shall never 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 shall not be amerced for her non suit .

CHAP. II . Of Trespasses upon the Case .

OFfences without force are trespasses upon the Case , or Real wrongs .

Trespass upon the case is such an offence , whereby any thing is endamaged . And is a misuser or deceit .

Misuser , when by meer wrong it is endamaged . Of which kind there be many , and those of divers sorts . As if a man maliciously utter any false slander to the indangering of one in Law . As to say , he hath reported that money is fallen , for he shall be punished for such a report , if it be false . 9 El. Uttings case . The touching of him with some hainous crime , Sir Tho . Cokains case . as that he hath gone about to get poison to kill the child that such a woman goeth with ( yet it is no felony ; ) lien So i● hath been adjudged . in wait to rob him ; procured 26 El. C●a●knel 5 c . another or agreed 34 El. Cebot against Haines adjudged . with another to murder him ( though he were not murthered in Deed ) 27 El. Hack's case . sought his life for his land , &c. or the impairing his trade of life ; as to call a merchant 27 El. Barrons case . bankrupt ( for it is his living , but so it is not of a Gentleman ; ) an Attorney 26 El. Ambodexter , or to say that he dealeth 27 El. Burc . case . corruptly . But in all such cases words of choler and heat , as to call one Cosener All these cases have so been adjudged or commonly received for Law . 13 H. 7. per 11. El. Dy . 285. 30 H. 8. Br. Act. sur case 104. and Crafty knave , common extortioner , and drunkard , witch , rogue , Pillory-knave , Villain ( unless he say villain to such a man , or regardant to such a mannor ; ) words uttered in a suit of law , as to bring a Writ of forger of false deeds against a nobleman , or any other ( though it be false ) will bear no Action ; for these are not maliciously . So if he be able to justifie the words , for then it is not falsly . As that he called him perjured , by reason of a perjury committed in the star-chamber , murderer , thief , or such like , upon a conjunction 31 El. Nowels case . ; but not upon an Enditement or common voice and fame , though the defendant himself suspect him : 7 El. Dy . 236. If one having another mans goods It hath been oftentimes adjudged that in such case● the reversion is traversible . convert them to his own use : if a 7 H. 6. 5. & 17 El. in Mansers case no action of debt lieth upon it ( at the Common Law ) but an action of Trespass upon the case . Sheriff suffer one in execution for debt to go at large : if a Smith 48 F. 3. b . F.N.B. 93. H. cloy my horse : but not if he take him to cure ( without warranting of him ) and doing all he can , yet the horse impair . If being committed to the Goal , the Goaler of malice put upon me so many Irons , or otherwise use me so hardly that I become lame thereby , &c.

Statutes .

West . 1. cap . 33. He that publisheth any false news and tales , whereby discord or occasion of discord and stander may grow between the King and his people , or the Nobles , shall be kept in prison until he hath brought him forth into the court , that did speak the same .

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

12 R. 2. c . 11. In the case of these former Statutes , if the party cannot bring forth him that spake the same , he shall be punished by the advice of the Councel .

But two above the rest do here require more special consideration ; that is to say , disturbance and nusance .

Disturbance is the hindering of that which in right belongeth unto one to do . As for a man to use his common , to reduce a Water-course that is misturned , to present unto a Church , &c.

F.N.B. 184. a. F.N.B. 184. d . Nusance is annoyance done to ones hereditament . As levying a fair or market to the Nusance of anotherr Fair , or Market ; building a house so near mine , that the rain which falleth from that house falleth upon mine , &c.

All manner of nusances are to be removed , and common nusances . As a wall 33 H. 6. 26. &c. built upon the Highway , trees 42 Ass. pl. 5. growing upon the river bank , whereby a water-course is stopped , any man may pull down .

F.N.B. in his Writ of deceit . Deceit When the dammage groweth by an undue sleight . As if a man purchase a writ in my name out of the Chancery , I not knowing of it , whereby I am to pay a fine ; or if one ( whom I make my Attorney in a plea of land against finee ) make default , whereby the land is lost : Or if in a Praecipe against divers Tenant● , a man purchaseth a protection for one of them , supposing him to be beyond sea in the Kings service , where indeed he is & always hath been in England , by means whereof the demandant is delayed : or if in a Praecipe quod reddat , the Sheriff return the Tenant summoned , where indeed he was not , whereby he loseth the land : or if in play one win anothers money with false dice , or if he that selleth any thing do upon the sale , warrant it to be thus and thus , whereby the other is deceived . So that the warranty must be parcel of the contract : for if it be 5. 7. 41. after , ( at another place ) or 11 E. 4. 6. a servant make the warranty upon the sale of his masters goods ( which in law is the masters sale , and warranty of the servant ) it is a void Warranty , and no action of deceit lieth upon it . Also the Warranty can reach but to things in being at the time , not to things to come : as that a horse ( c ) will carry you xxx . miles a day : nor to things which may be discerned by my five senses to be otherwise , as clothes of murry colour to be blew , unless the buyer in this case be blind . But where they are warranted to be of such a length , and are not , there an action of deceit lieth : for that cannot be discerned by sight , but by a colateral proof , the measuring of them .

CHAP. III . Of certain offences punishable by amercement by the Kings Prerogative .

CErtain offences against the Law , are in nature of trespasses upon the case , and by the Kings prerogative punishable like to them . As suing an action without just cause , or giving just cause of an action : for So are all precedents . in every action where the matter passeth against the Plaintiff ( be it by verdict , demur , or otherwise ) the Plaintiff is to be amerced , and the Defen . in debt , detinue , covenant , replevin , Quid juris clamat , &c. 11 H. 4. 45. but not in Trespass , for there he shall be fined and imprisoned . Non-suit 22 ass . pl. 32. in an action 7 H. 6. 36. 40 E. 3. 20. fault in the original writ he bringeth : or ( by the Sheriff ) in the return of a Writ making 10 E. 4. br . amerciamen . 46. default when he should appear ( as the Jurors at the Habeas corpora ) and whatsoever other offences ( not being with force and arms ) which offer no direct injury to a common person .

CHAP. IV . Of discontinuance .

HItherto of Trespasses upon the case .

A real 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 tail , or Fee-simple in anothers right , as the husband in right of his wife . A Dean sole seised in the right of his Deanrie , Dean and Chapter , Gardein and Chaplains ; as also Major , and Commonalty of lands in the right of their Corporation , maketh a larger estate of the land than he may . As by a Fine or Feoffment for life of the Lessee , in tail or in fee , which is called a discontinuance . But the Grant of a Rent , release or confirmation to a Lessee for years in fee , make no discontinuance , for they pass without livery , and therefore pass no greater estate than the Grantor had .

Statutes .

32 H. 8. cap . 28. All leases by deed indented for life or years , by any person of full age , having an estate in fee or in fee-tail , in his own right , or in the right of his Church , or wife , or joyntly with his wife , shall be perfectly good .

This extendeth not to Leases of land in the hands of any Farmer , by vertue of any old Lease , unless the same be expired , surrendred or ended within a year after the making of a new ; nor to the grant of any reversion , or to any lease of land which hath not most commonly been lett , or occupied in farm by the space of twenty years next before , nor to any Lease made without impeachment of Waste , or made for above twenty years , or three lives from the day of making . And that there be reserved yearly payable to the Lessors , their heirs and Successors , according to their estates , the rent accustomably yielded within twenty years next before : which heirs and successors shall have the like advantage against the Lessees , their Executors and Assigns , as the Lessor himself might . Provided the wife be made party to every lease by the husband of any land of her inheritance . The lease to be made by Indenture in both their names , and she to seal the same , and the rent to be reserved to the husband and wife , and her heirs , according to her estate of inheritance .

13 El. c . 10. All Grants , Feoffments , Leases , and other conveyances and estates , by any Master or Fellows of a Colledge , Dean and Chapter , Master or Gardein of an Hospital , Parson , Vicar , &c. other than for xxi . years . or three lives , from the time of such lease or grant , reserving the accustomable yearly rent , yearly payable , shall be void .

14 Eliz . cap . 11. The Statute 13 El. c . 10. before , shall not extend to grant assurance , or lease of any house in City , Borough , Town corporate , or Market Town , or within the Suburbs ( the same not being their dwelling house , or having above ten acres of ground belonging to it . ) Provided the lease shall not be made in reversion , and the accustomed yearly rent shall be reserved , the Lessees charged with reparations , and it shall not be above forty years . No alienation shall be of such houses , unless that presently upon such alienation there be an absolute purchase in fee simple of other lands of as great value .

18 El. c . 11. All leases made by such persons ( as 13 Eliz . c . 10. before ) where another lease for years is in being , not to be expired , surrendred or ended , within three years next after the making of such new lease shall be void . All bonds and covenants for renewing or making of any lease , contrary hereunto , or to 13 El. C. 10. before , shall be void .

1 El. not printed the like ( as 13 El. C. 10. before ) for Archbishops and Bishops , unless it be of estates made to the King , his heirs and Successors .

32 H. 8. c . 28. No fine , feoffment , or other act by the husband only , of any land being the inheritance or freehold of the wife , shall be a discontinuance or prejudicial to the wife , or such as have interest after her death : leases within the compass of this Statute only except .

Warranty of an estate of inheritance or for life , descending upon him that ought to have such estate , maketh a discontinuance . As if tenant in tail of an advowson in gross , suffer an usurpation by 6 months , the release of a collateral ancestor with a warranty is a discontinuance , for he hath fee by the usurpation .

So it seemeth of a collateral ancestors release , with warranty to the Grantee in fee of a rent or advowson in gross by Tenant in tail . But if tenant in tail of a rent or advowson in gross grant it in fee with warranty , this is no discontinuance , but at the pleasure of the issue .

Discontinuance taketh away the entry of those that come to have title after his death . If he ( whose en●ry is barred by a descent or discontinuance ) have the Freehold cast upon him by a new title , he shall be in of his ancient title : which is termed a remitter . As if the heir of the disseisor ( in by descent ) make a lease for life to I.S. the remainder for life or in fee to the disseisee , Lit . 152. if tenant in tail discontinue , 11 E. 4. 1 : and then disseise the discontinue , and die seised , whereby the lands descend to his issue ; if the husband make a feoffment in fee of land in the right of his wife , 21 E. 3. 26. and take back an estate in fee to him and his wife . In these cases the disseisee after the death of I. S. the issue in tail , and the wife surviving , her husband is remitted : but if the husband survive , her heir is not ; for there is another tenant of the Freehold , against whom he may bring his action . And in the case of tenant in tail before , though the helr of the discontinue were within age at the time of the descent to the issue in tail , yet his entry is gone for ever , by reason the Issue is remitted .

CHAP. V. Of Intrusion , Abatement , Disseisin and usurpation .

OVster is , when the Freeholder is ousted , or put out . And therefore it gaineth a Freehold unto the party ,

This ouster is of a Freeholder in Deed or in Law . Of the first sort are Intrusion or Abatement .

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

Abatement , which is after the death of one that hath the inheritance , 5. H. 7. 6. whether the land dsecend unto his heir , or he die without heir .

Of the second sort are disseisin and usurpation .

Disseisin is the ousting of him that hath a Freehold in Deed : Lit . 62. which of a rent or other profit is by the disturbing of him in the means of coming to it . As in every rent , whether Rent-service . Rent-charge , or Rent-seck , Encloser and Forestaller . Lit . 52.

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

Forestaller is , when the Tenant besetteth the way with force and Arms upon his coming . Of which nature also is the menacing of him that for doubt of some bodily hurt , death or loss of member he dare not come .

In a Rent-service and rent-charge , Rescous and Replevin .

Rescous , when either the party having distrained , the distress is rescued , or being upon the land to distrain , cannot be suffered .

Replevin is , when an action of replevin is brought upon a distress taken .

In a Rent-charge and a rent-seck denier .

Denier is , when the Rent ( being demanded upon the land ) is not paid .

Vsurpation is , when the Church becometh full by the presentment of a wrong Patron : which is done by the institution of the party presented .

Prerogative .

But against the King Induction only d●th it . Therefore at the Common Law , in a Quare impedit , Plenarty day of the Writ purchased , is a good plea , though it be by institution only . And the Plenarty by six Months ( which barreth the right Patron of his quare impedit , by the Statute Westm . 2. c . 5. ) is accounted from that time between common persons . So is it for the King when he presenteth . And in these cases the Ordinary may certifie a plenarty without making mention of any induction , but of admission , and institution only . But against the King plenarty 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 plenarty is no plea in a quare impedit , against a person impersonee ( that is , a fpiritual body politick , which being Patron , hath the Church appropriated in succession ( viz ) to hold to their proper use , 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. c . 5. Usurpation upon Gardeins , tenants in Dower , or upon femes covert , or houses of religion in time of vacation , shall not put the heirs femes , or houses of Religion out of possession . But faint recoveries shall not be avoided in such eases by way of Plea .

Plenarty is no plea in a quare impedit or darrein presentment , if the Writ be purchased within vi . moneths .

When one parcener presents in anothers turn , yet this gaineth no possession : for the other may present when her turn cometh again .

CHAP. VI . Of Trespasses in Goods .

SVch is the nature of an Offence without force .

An offence with force is a trespass , or offence against the Crown . Stat. 37. H. 8. c . 8. reciteth the Common Law to be so . For in all Inditements and Inquisitions , of treason , murder , felony , trespass , &c. vi & armis must be in , else it is not good .

Trespass is a criminal offence punishable by a fine unto the King . So is every contempt punishable : and for this reason no action of Trespass lieth for the Lesse for years , against the Lessor , ( though he distrein without cause ) for that the Statute of Marlebridge , c . 4. is , That he shall not be punished by fine and ransom ; which , if he be attained in this action , he must need● be , and for this the party must be imprisoned till he do compound . Therefore after tender af his fine , the King cannot justly detain him in prison :

Trespasses touch possessions or the person . Possessions , when the wrong is done in them , namely in goods or land .

Trespass in goods is the wrongful taking of them with pretence of title . And therefore altereth the property of those goods . So as one cannot declare in an Action of trespass , 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 property being divested out of the plaintiff , and vested in the defendant , consequently it followeth , that he cannot kill his own horse against the peace .

CHAP. VII . Of Trespass in Land .

TRespass in land is , when the trespass is done upon an actual possession thereof . For of a trespass done 12. H. 7 22. after the death of the Ancestor , and before the heirs entry , after 1 Mar. Pl. 142. breach of the Condition , and before entry for it : where a lease for years is made , reserving a rent , upon condition to be voyd if the rent be not payd : or after Michaelmas , & before the Lessees entry , where a lease for years is made to begin at that day : no action lieth for the heir in the first case , for the lessor in the second , nor for the lessee in the third ; Park . 4. because they were not seised of the Land at the time of the trespass done ; yet the lessor in the second case might have made a new lease before his entry ; for the first Lease was meerly void . and the Lessee in the last case might before Michaelmas grant away his term .

21 H. 7. 39. Where beasts or any other chattels , shocks of Corn , or whatsoever else , whether Conisance may be of them to bring a replevin , or not : that so the trespass may be distrained by him that hath dammage by it . 15 H. 7. 13. As one that hath Common out of land , though he have nothing in the land it self , so as he can have no action of trespass against the owner of the beasts , for their entry into the land , nor the grass wasted , &c. yet he may distrain them dammage feasant , because of the dammage he sustaineth . But so cannot Cesti qui use : for he hath nothing at all to do in the land , save that there is a confidence between the feoffees and him : but the feoffees may punish him by the Common Law , if he occupy the land , for he is but a meer stranger . And if a stranger of his own head drive out beasts that are dammage feasant , rhe owner of the beasts shall punish him , for he is endammaged by this driving out , and the other hath no loss .

F.N.B. 220. f . 1. H. 6. 1. Hither belongeth ejectment , when a termer for years of land is ousted : Whether by the Lessee or a stranger , but not a Termer for years of beasts or other Chattels .

Prerogative .

Here ( viz. ) of land , which is a thing permanent : for things transitory and removeable the King may be put out of his possession , & have his action according , 1 H. 7. 19. as ravishment of gard , quare impedit , &c. But of things permanent he cannot have an Action , as a Praecipe quod reddat , ejectment of ward , &c. because of such things he cannot be put out of possession : Stamf . prer . 74. the King having possession by matter of Record , or other good title , none can put him out . But if having no title by matter of Record , or otherwise , he enter upon me , 8 H. 4. 16 per Stamf . pr . 57. and put me out , there if I enter again , my entry is lawful , and no intrusion . So if the King seise upon an office , finding that his tenant died seised but of an estate for life , the reversion to another ; he in the reversion may enter , and make a feoffment : for the King seiseth by colour of a Record , which record giveth him no title indeed .

CHAP. VIII . Of Menaces .

TRespasses to the person are with pretence of violence , or violence indeed ,

Pretence of violence , as Menaces and Assaults .

Menaces are threatning words of beating one , 18 E. 4. 28 or such like , through fear whereof ones business is foreslowed . 7. E. 4. 24. For a menace only ( without other loss ) maketh not the trespass , but both of them together .

CHAP. IX . Of Assault .

40 E. 3. 40 ASsault is an unlawful setting upon ones person . As offering to beat one though he do not beat one indeed , striking 22. ass . pl. 40 at one with an Hatchet , or such like , though he do not touch him . Whither belongeth lying in wait , besetting his mansion house , Book of entries Fol. 552 and not suffering his servants to go in and out , &c.

CHAP. X. Of false Imprisonment .

VIolence in deed , is false imprisonment or bodily hurt .

False imprisonment is an unlawful restraint of liberty . As 22 Ass. pl 85. arresting one against his will , though it be in the Highstreet , and he never put in prison in any house ; detaining of a woman 43 E. 3. 20 against her will , whom he hath ravished . so if a 22 E. 4. 45. master imprison one without cause , and deliver the key of the door to a servant that hath notice of his wrongful imprisonment of him , if the servant deliver him not , he shall be punished in an action of false imprisonment . But if the imprisonment be upon a false and feigned suit , as in suing 43 E 3. 3 execution upon a Statute merchant , when the money is paid ; yet no action of false imprisonment lieth , for he is imprisoned by course of Law .

CHAP. XI . Of Battery .

BOdily hurts are either outward violences only , or Rape .

Outward violences only , are Battery and Maim .

Battery is the wrongful beating of one . But if a man will take away my goods , 9 E. 4. 28. I may lay my hands upon him , and disturb him , and ( if he will not leave ) I may beat him , rather than he shall carry them away ; for that is no wrongful bearing .

CHAP. XII . Of Maim .

MAim is the wrongful spoyling of a member defensive in sight . 18 E. 3. 94. As cutting off ones finger , knocking 8 H. 4. 31. Cor . 458. out ones fore-tooth Brit . & Bra . p. Stamf . 38. b . , putting out his eye , &c. Otherwise it is of knocking out his grinding teeth , cutting off ones ear , nose , &c. for these are but deformities .

CHAP. XIII . Of Rape .

THese are outward violences only : Rape is the carnal abusing of a 9 E. 4. 6. Br. per Sl. 24. woman against her will . But if the woman conceive upon any carnal abusing of her , that is no rape , for she cannot conceive unless she consent .

Statutes .

6 R. 2. c . 6. If the woman after rape consent , as well she as the ravisher be disabled to have any heritage , dower , or Joynt feoffment after the death of their husbands and Ancestors , and the next of blood shall have litfe to enter incontinently .

CHAP. XIV . Of Contempts .

CErtain offences against the King are in the nature of trespasses , and are termed contempts : as 38 H. 3. 9. making rescous upon his Writ served 24 E. 3. 3. , going armed in his Palace , &c. where sometime the punishment is increased according to the quality of the offence , not only in the fine , 36 H. 6. 27. but further , in the loss of member , and such like . As a Juror appearing , and being challenged , if he do not appear upon demand , when he is found indifferent , shall be fined by the value of his land by a year . He that smiteth a man 41 E. 3. Cor . 280. in Westminster Hall , or a Juror in the presence of the Justices , shall have his right hand cut off , 19. E. 3. Judgment 174 his land and chattels forfeited , and in the latter case be committed to perpetual prison .

CHAP. XV . Of Offences against the Crown .

THus much then of Trespass : It remaineth to speak of Offences against the Crown , which are criminal Offences punishable by death .

Where further also all the offenders both hereditaments , as lands , rents , &c. whether for life Stamf . 116. b . & 190. only or of 26 ass . pl 4 in high treason . an estate of inheritance , and chattels not only in possession , 22 ass . pl. 63 but such as he hath but a right to , as land , 6 H. 7. 9. whereof he is disseised , debts , 29 ass . ibid . goods 10 ass . pl. 5. to be accounted for , or wrongfully 29 ass . pl. ibid . taken ; But 29. ass . ibid . not such as he is to recover , but damages for , as in battery , &c. are forfeit to the King . And that as well in Felony , as Treason , save only in Felony Land of inheritance is forfeit to the Lord , as appeareth chap , 16. afterwards .

Hereditaments 30. H. 6. 5. from the time of the offence ( whether the attainder be by Outlawry , verdict , or how soever else ) Chattels though real , 2 Mar. as a lease for years , &c. from 8 E. 4. 4. the time of the attainder only . So 8. E. 4. i● . 7 H. 4. 47. B● . forg . de ter . 10. as a sale or gift before , is good , for he must live of them . And therefore after enditement , and before attainder , the goods shall not be removed out of his house , but shall be in the keeping of his neighbours . And in these and all other forfeitures , as upon an 5 H. 4. forf . 32. enditement of fugam fecit , or 3 E. 3. cor . 377 if one be taken with the manner upon a robbery , or 22 ass . pl. 8. tarry the exigent , &c. The Town is chargeable with the goods , and therefore 22 ass . ibid . may seise them wheresoever they be .

Statutes .

31 E. 3. c . 3. No man nor town shall be charged in the Exchequer , by the extract of the Justices , of the Chattels of fugitives , or felons , if they can shew that another is chargeable .

1 R. 3. c . 3. No Sheriff , Under-Sheriff , or Escheator , Bayliff 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 convict , or attainted of such felony , according to the Law of England : or else the same goods otherwise lawfully forfeit , upon pain to forfeit the double value of the goods so taken , to him or them that shall be thereby indammaged , by action of debt in this behalf to be pursued .

The blood also is here corrupted . 37 H. 8. Br. de . 42. 22. H. 6. 38 : So as a remainder to his right heir can never take effect . The eldest son attainted of felony in his fathers life time , and him surviving , or his issue 32 H. 8. Dy . 48. ( if he die before ) cannot inherit : and besides , shall be an impediment , that the younger brother cannot , 22 H. 6. ib . but it shall go to the Lord by escheat . Otherwise 32 H. 8. Dy . ibid . it is , if the eldest son die without issue in his fathers life time .

Lastly , the wife loseth Lit . 169. her dower , and notwithstanding 3 & 4 Ph. the husband alien the same before the offence committed .

Statutes .

1 E. 6. c . 12. No dower shall be forfeit , by the husbands attainder , of any murder or felony whatsoever .

Prerogative .

3 El. 3. cor . 209. 3 E. 3. cor . 289. 5 R. 4. f●rf . 32. Those that flie for fear of the offence ( we call it a Fugam fecit ) forfeit their Chattels . Accessaries after the Fact , that is to say , witting maintainers ( and 2 E. 3. cor . 377. 14 E. 2. P. 19. El. Dy . 355. if it be of one outlawed in the same County ; though they have no other notice of it ) as by 8 E. 3. cor . 427. receiving one that flyeth for it into his house , and shutting the door , so as the Countrey thinking him to be there , he escape whilst no man followeth him ; 26 Ass. pl. 47. ayding him with money , but not with good words , as wholsom advise , speaking o● writing for his delivery And therefore also that suffer Sta●f 35. h . one arrested whether by themselves or any other to escape , 9 H. 4. i . which we call a voluntary escape , Stamf 22. s . are guilty of the same offence .

Prerogative .

Concealing the Offence , without discovering it unto the King , or his Councel , or to some Magistrate , is called misprision ; and that forfeiteth (a) Chattels , and hereditaments during their life .

CHAP. XVI . Of Felony .

OFfences against the Crown be of two sorts , Felony , and High-treason . Felony is an offence of the Crown , not bent immediately against the State , where the forfeiture of the offenders 27. E. 3. Escheat 17. inheritance is given to the Lord . ( whether it be in petty 22. ass . pl. 49 treason , or other Felony , and Sta . 198. a. at any time after he is attainted ; And therefore the Lord may have a Writ of Escheat before Execution . But Sta . 190. c . of lands ( whereof one is seised in the right of his wife ) the King shall have the issues during the husbands life .

Prerogative .

The King , both Sta . 190. a. here , and wheresoever Sta 190. c . the offender was dispunishable of waste ( as if he were seised of land in the right of his wife ) is utterly to waste the inheritance , by rooting up the houses and trees , plowing up the meadows , digging up the land , &c. And this is in detestation of the offence .

Statutes .

Magn . Ch. C. 22. The King shall have the land by a year and a day , and then render it to the Lord of the fee .

Prerogative , c . 15. giveth the King the profits by a year and a day , and moreover the wasting of it .

CHAP. XVII . Gf Stealth .

FOlony is a bare Felony , or petty treason .

Stamf . 182. Bare Felony is a Felony of the lowest nature , and is punishable by hanging .

This is simple or mixt .

Simple , as stealth and manslaughter . Stealth is the wrongful taking of goods without pretence of title . 4 H. 7. 5. And therefore altereth not the property , as a trespass doth , so as upon an appeal the party shall re-have them .

Statutes .

21. H. 8. c . 7. ( made perpetual . 5 El. c 18 ) The servant that hath any goods or chattels delivered him to keep by his master , and ( with an intent to steal ) doth either , go away therewith , or being in service imbezle , or convert the same to his own use , shall be judged a thief , if the value of the goods amount to xl . s .

This extendeth not to apprentices , or any person within eight years of age .

Inne-keepers must answer for goods of their guests stollen : 22. H. 6. 21. though they let them have a chamber with a key unto it , to keep their goods in . But if the guest suffer with his good will a stanger ( whom he knoweth not ) to lodge with him in the chamber , and the stranger rob him , the Inn-keeper shall not be charged . Otherwise it is , if he be lodged there by the Inn-keeper .

Prerogative .

Goods confisked , that is to say , 3. E. 3. Cor . 371. which the thief attainted for stealing another thing , 3. E. 3. Cor . 355. for if it be for stealing the same goods they are said to be forfeit and not confisked . 12. E. 4. 5. disclaimeth to have any property , in and Waifes that is to say , which a thief ( but not one that committeth a trespass ) waiveth are the Rings , if he ( whether any officer of his , or the Lord of the Franchise , 21. E. 4. 16. seise them before the partie from whom they were stolen . But if the party from whom they were stolen seise them first ( though it be not in xx . years after they be stolen ) or doing his diligence to apprehend the thief , 21. E. 4. ibid . 7. H 4. 43. which is called fresh suit , whether the thief be taken at his suit or not , convict him afterwards , upon an appeal ; he shall haue his goods again .

Statutes .

2. H. 8. C , 11. The party shall have restitution of his goods without fresh suit , if he or any for him give in evidence , by reason whereof the other is attainted .

27. H. 8 22. The stealing of goods which exceed not the value of xiid ( ealled petty Larceny ) is a felony ( for a man may justifie the calling of one thief for such an offence ) that doth only forfeit his Chattels .

CHAP. XVIII . Of Man-slaughter .

MAn-slaughter is the killing of any person Stamf . 21. c . born into the world , though he b● no● baptized . But Stamf . ibid . 3 ass . pl. 2. to kill an infant in venter sa meere , is no felony .

Statutes .

21. E. 1. Stat. de malefact . in parcis : It is no Felony for Foresters to kill misdoers , if they will not submit themselves .

But if one live a year after an act committed which was the cause of his death , as beating , 3. E. 3. coron 303. poyson S am . 21. d . given him . &c. It is no felony in him that did the Act : but this death shall be accounted a n●tural death .

The killing of one by 2. H. 4. 18. chance ( which we call by m●s●ortune , or misadven●ure ) in the doing a lawful act . Stamf . 16. c . But not if A. B. be fighting , and C. coming between to part them , be slain by either of them both without any ill intent , for that is felony at the least , if not murder in him that killeth C. because the thing which they were doing was unlawful : 4. H. 7. 2. or in his own defence , which we call Se d●f●ndend● , 43. ass . pl. 3. flying as far as he may to save his life ; for otherwise it is felony , though the other pursue him : doth only forfeit his Chattels , and he must have a charter of pardon .

Statutes .

Glocest . c . 9. He that killeth a man by misadventure or se defendend● , mu●● put himself upon the Countrey , and if 〈◇〉 be found to have done it so , the King , 〈◇〉 he please , may pardon him .

Marl . C. 25. To kill a man by misadventure shall be no murder ,

But the killing of one that attempteth to rob him whether 26. ass . pl. 32 upon the high-way or if 26. ass . pl. 23 when men come to his house , and compass it about to burn it ( though they do not burn it ) whereupon he issueth out and killeth one of them , is neither Felony nor causeth any forfeiture at all .

Prerogative .

Any unreasonable thing killing a man . As the wheel of a mill , 8. E. 2. Cor : 389. when one falleth from the bridge into the water , and is caried by the violence of it under the outward wheel ; the task of Corn that a man falleth from , 3. E. 3. Cor . 140. and so receive his death : it , and every thing moving with it , is forfeit to the King . As if a man being upon a Cart carrying Faggots , 8. E. 2. Cor . 397. and binding them together , fall down by the moving 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 self , are forfeit . And these are called Deodands .

CHAP. XIX . Of Chance-Medly .

MAnslaughter is Chance-Medly or murder .

Chance-Medly is manslaughter without former malice . As if certain set upon one to kill him , and I. S. having no malice against him , 1 Mal . Pl. 242. being in the company , and seeing them combating , take part suddenly , and together with the rest smite him that he die , this is chance medly in I. S.

CHAP. XX . Of Murder .

MVrder is manslaughter upon former malice , which we call prepensed malice . As if one to kill his wife , 18 El. Pl. 474. give her ( lying sick ) poyson in a rosted apple : & she eating a little of it , give the rest to a little child of theirs , which the husband lest he should be suspected , suffereth the child to eat , who dieth of the same poyson ; this is murder though the wife recover : for the poison ministred upon malice prepensed , to one ( which by a contingency procureth the death of another , whom he meant not to kill , nor bare any malice to ) shall be as great on offence , as if it had taken the effect which he meant , proceeding from a naughty and malicious intent .

3. El. Pl. 258 Felony de s , that is , he that murdreth himself , doth only forfeit his Chattels , but not his lands ; neither doth it work corruption of bloud , nor loseth the wives dower , because it is no attainder indeed . But his Chattels he doth forfeit , real and personal goods , debts , &c. And this forfeit shall have relation to the time of the act in his life , which was the cause of his death . So as husband and wife being possessed joyntly of a term for years of land , and the husband drowning himself , the term is forfeit to the King , and the wife surviving shall not have it : for the Kings title is from the casting of himself into the water , which was before the wife had any title by survivor .

And this forfeiture is as strong to give away the term as an express grant , which the husband might have done and barred his wife .

CAAP . XXI . Of Robbery .

MIxt , is that kind of bare Felony which riseth from the former .

Whereof there be two sorts , Robbery and Burglary .

Robbery is stealth from ones person by assault in the high way . But if either nothing 9. E. 4. 26. be taken , though he command him to deliver his purse or money , or money taken , but 5. E.D. 224 without putting the person in fear by assault and violence ( as where one is indited , Quod vi & armis apud B. in via regia ibidem xl . s . de pe cunijs numeratis , &c. felonice cepit de person● I. S. ) it is no Robbery . And therefore in this latter case he may have his Clergy at this day .

CHAP. XXII . Of Burglary .

BVrglary is the night-breaking of an house , with an 1. E. 6. Br. Corrone . 179. intent to steal or kill ; though none be killed , no● any thing stolen . And so it is of a 1. E. 6. ibid . stable , parcel of a house , but 13. H. 4. 7. not of breaking ones close to kill him , nor ones house , if it be but to beat him , nor though it be to kill him , if it be in the day time . Stamf . 30. b .

CHAP. XXIII . Of petty Treason , properly so called .

ANd of bare Felony so much shall suffice . Petty treason is a Felony : 1 E. 3. 24. For where one is arraigned for falsifying the Kings Seal ( which is a petty Treason ) a charter of pardon of all Felonies is a good plea , 1. R. 2. 4. F . N B. 269. b . of higher nature than bare Felony is ; the punishment whereof burning . 22. ass . pl. 49 21. E. 3. 17. Cor . 477.

This is against mortal creatures , or against God .

12. ass . pl. 30 19 H. 6. 14 his masters wife Against mortal creatures : as Petty treason ( properly so called ) and Sodomitrie . Petty treason ( properly so called ) is the killing of any to whome private obedience is due : 1 R. 3. 4. 12 ass . pl 30 1 R. 3. 4. as ones master , mistress husband , &c. for which instead of burning , 21. E. 3. ib . 19. H. 6. ib . ( which the woman here shall be ) a man shall be hanged and drawn .

CHAP. XXIV . Of Sodomitry .

SOdomitry is a carnal copulation against nature , to wit , F.N.B. 269. b . they shall be burnt , and that by the Common Law . of man or wonan in the same sex , or of either of them with beasts .

CHAP. XXV . Of Heresie .

Lect . Frow . No Sanctuary lieth in case of heresie , for it is treason against God . AGainst God , is that which is immediately is . bent against his Majesty as Heresie , and Sorcery . Heresie is a presumptuous oppugning of an Article of Faith : whereof what it is , the Common Law taketh no notice , F.N.B. 269 b . But in case of Heresie , the party before he can be burnt , must be convict in a Provinciol Sinod ; Sorcerers and Sorceresses , & Hereticks shall be burnt , and that by the common Law . F.N.B. 269. b . and after abjuration , make a relapse into the same or some othet Heresie .

CHAP. XXVI . Of Sorcery .

F.N. B. 269. b . 45. E. 3. 17. SOrcery is a consulting with Divels , and containeth under it , Conjuring Necromancie , and such like .

CHAP. XXVII . Of Petty Treason growing by Prerogative .

26. ass . pl. 63 HEre divers offences are accounted Felony , in respect of the Kings Prerogative ; 3. H. 7. 10 as to counterfeit the Kings coyn , 1. E. 3. 24. great Seal or privy Seal ; to acknowledge any foreign person to have any power within the Realm . As 30. ass . pl. 19 by pleading an excommunication under the Popes Bull ; and are punishable as Petty Treason .

CHAP. XXVIII . Of High Treason ,

HIgh Treason followeth , which is an offence of the Crown , 25. E. 3. c . 2 maketh a declaration of all these to be high Treason . directly against the State . As in compassing the death of the King : For intending his death ( without more ) is Treason ; otherwise it is in felony , except an Act be done . Or the Queen his wife , 13. H. 8. 12. or of his Son and Heir , by levying war within the Realm , or adhering to his Enemies , or them comforting , aiding , 1. H. 7. 24. Stamf . 1. 82. c . &c. and is punishable by drawing hanging and quartering in a man , drawing and hanging in a woman ,

Statutes .

25. E. 3. de proditionibus cap . 2. It is made high treason to kill the Chancellor , Treasurer , or Justice of either Bench , Justices of Eire , or of assizes , or any other Justices assigned to hear and determine in their place , doing their office .

To counterfeit the Kings money .

To bring false coyn into this Realm , counterfeit according to the money of England ( knowing the same money to be false ) to merchandise , or make payment with it .

To counterfeit the Kings great Seal , or Privy Seal .

1. Mar. c . 6. Seal manual , Privy Signet , or Privy Seal .

Strange coyn current in this Realm .

1 & 2. Ph. & Ma. cap . 11. To bring wittingly false foreign coyn hither , to the intent to utter it within the Realm .

1. El. c . 11. To clip , wash , round or file , any money of this Realm , or current here : and causeth forfeiture of land for life only . But no dower shall be forfeited nor blood corrupted .

18. El. c . 1. To impair , Diminish , Falsifie , Scale , or Lighten any money by any art , ways or means whatsoever .

1. Eliz . c . 1. Advisedly , maliciously , and directly to affirm set forth , & defend the third time by express deed or act , or to put in ure , or to execute any thing , for the defence or setting forth of the spiritual authority or jurisdiction of any foreigne person , heretofore claimed or used in any of the Queens Dominions .

So for any person compellable to take the Oath .

To refuse ( after lawfull tender ) the oath to acknowledge the Queen supream governor in all causes within her dominions

13. El. c . 1. To put in ure any Bull or instrument of absolution , or reconciliation from Rome , or to take upon one ( by colour of any such to absolve or reconcile any person , or to publish any such , Bull or instrument , To receive such absolution , or to procure , abett , or counsel any offendor to uphold him . The practice to absolve , perswade , or withdraw any person within the Queens dominions , from their natural obedience , or ( for that intent ) from the Religion now established here , to the Romish Religion , or to move them to promise obedience to the sea of Rome , or other Estate , or willingly to be absolved , withdrawn , or to promise such obedience .

1. Eliz . cap . 6. Maliciously , directly , and advisedly , to say or hold opinion ( the second time ) that the Queens Majesty , or her heirs of her bodie , be not right Kings and Queens of this Realm , or that any other person ought to be .

their abettors , procurers , counsellors , ayders , &c. To affirm by any writing , printing deed , or act , the first time , their abettors , &c.

33. H. 8. c . 20. Attainder of high treason by the course of the common law , or statutes of this Realm , shall be of as great force as an attainder by Parliament . And the King shall have the real possession of every thing forfeited without inquisition or office : saving to Strangers , &c.

29. Eliz . cap . 2. No attainder of high treason ( for which the party is once executed ) shall be impeached for any error , by the heirs , or any claiming under them .

26. H. 8. c . 13 & 5. & 6. E. 6. cap . 11. Any offence ( made treason heretofore ) done out of the limits of the Realm , shall be inquired here by Commission , and like process used , as if it had been done within the realm .

One resiant out of the limits of the realm , may be out-lawed for high treason .

An estate tail shall be forfeit for High-treason .

THE FOURTH BOOK OF LAW .

CHAP. I. Of Courts .

THus we have gone through both the parts of the Law , there remaineth yet one general and common affection scattered throughout the whole Law ( as the blood is through the body ) which we call an Action

Action is the handling of a cause in controversie before certain Iudges , who ( in respect of the place where they are set to do Iustice ) are commonly called a Court .

Statutes .

36. Ed. 3. cap . 15. All Pleas which be pleaded in any of the King's Courts , before any of his Justices , or in his other places , or before any of his other Ministers , or in the Courts and places of any other Lords within the Realm , shall be pleaded , shewed and defended , answered , debated and judged in the English Tongue , and that they be entred and inrolled in Latin .

Of all apparent faults proceeding from the Action , As in false Latin 4 H. 6. 16. 5 E. 4. 7. or default of form in the Writ , ins●fficiency in an office or Inditement , mis-awarding of Proc●ss , ( as if of an exigent where no exigent lieth ) impossibility in the Plea , 7 H. 6. 5. as in account , supposing him to be his Receiver for seven years , and the Defendant pleads , fully accounted such a day , which is the first of rhose seven years ; The Court must take notice . To abate the Writ , award a Supers●deas upon these offices , Inditements , or Process , to stay Judgment if the Defendants Plea be found against him , 4 H. 6. 16. &c. though the party except not to it . And therefore although he that casteth an Essoyne cannot plead 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 be Dominus ) he and every other stranger , as amicus curiae , may . And the Court is bound to abate it ex ●fficio , though the Tenant or Defendant make default .

Every Court hath power to award forth Precepts . 14 H. 6 20. In a Summons ad Warrantizandum F. N. B. 75. In a Replevin . And if the Precept be not served , another of the like nature shall go forth till it be served . Therefore the second Prccess is called a Summons ( or Attachment , as the first Process was ) sicut alias , the third a Pluries , the fourth , and all the rest , Plus pluries .

To every Court do belong both Clerks and Offices .

A Clerk is he that serveth for things to be done in Court , as entering the Pleas , and such like .

Any error that appeareth to the Court to be the Clerks ( misprision ) mistaking , may be amended at any time . 7 H. 6. 45. As a good original Writ or Precept ill entred in the Roll . 44 C. 3. 18. A Writ against A. and B. and the whole Process continued against B. and C. not A. and B. a Scire facias out of a fine and parcel of the Land omitted . 20 E. 47.

Statutes .

14 E. 3. cap . 6. No Process shall be annulled or discontinued by the Clerks mistaking in writing one syllable or one letter too little , or too much ; but shall speedily be amended , without any advantage to the other .

9 H. 5. cap . 4. made perpetual .

4 H. 6. cap . 3. The Justices before such pleas or Records be made , or shall be depending by adjournment , errors , or other wise , may make such amendment as well after judgement as before .

4 H 6. cap . 3. The former Statutes shall not extend to Records and Process , whereby any person shall be out-lawed .

8 H. 6. cap . 12. No Judgement or Record shall be reversed or annulled for error , assigned in rasing or interlining , adding , substracting , or diminishing of words , letters , titles , or parcel of Letters in any Record , Process , or warrant of Atturny , original Writ , or judicial Panel , or Return , though to the Judges of the Courts wherein the said Records and Process be certified ( by Writ of Error , or otherwise ) the same appear suspected . But the King Judges of the Courts where the said Records and P●ocess be certified by Writ of Error , or otherwise , shall examine the same by themselves and their Clerks , and amend therein ( in ●ffirmance of the first Judgement ) all that seemeth to them to be the Clerks misprision : Except Appeals , Indictments of Treason , and of Felonies , and the Out-lawries of the same . And the substance of the proper names , sirnames , and additions , left out in original Writs of Exigend , and other Writs containing Proclamation . And if any Record , Process , Writ , Warrant of Atturney , Return , or Panel , to be certified defective , otherwise than according to the writing which thereof remaineth in the Treasury , Courts , or places from whence they be certified ; the parties in affirmance of the Judgements of such Records or Process , shall have advantage to alledge variance betwixt the same Writing and the certificate : which being found and certified , the same variance shall be by the said Judges amended , according to the first writing .

27 Eliz cap . 7. After Demurrers joyned and entred , the same Court may amend all imperfections , defects , & wants of form , other than t●ose only which the party demurring shall particularly express with his demurrer .

Officers are those which are to serve the Courts Precepts , and where the precept so requireth , to certifie the Court thereof , which we call a return ,

So upon a writ to inquire of damages , it is a good return that the inquest gave no damages . 44 E. 3. 3 For he returneth what they did .

But upon a capias returned cepi corpus , 44. E. 3. 2. he shall be amerced , if he have it not there : as the day . For the Writ is , Capias ita quod corpus ejus habere possis , &c , tali die , &c.

Statutes .

Westmin 2. Cap. 39. Damages given against the Sheriff if he return not at all , or return a tardy , upon Writs delivered or offered to be delivered him by Billet . So upon returning Manda●i Ballivo libertatis falsely : upon resistance of any Great man to execute the King's Precept , the Sheriff shall take the Posse Comitatus , and see it served .

Stat. Eborac . 12. E. 2. Ca . 5. Bayliffs of Franchises must deliver their returns of the Writs to the Sheriff by Indenture , and if he change the Return , the Lord of the Liberty , and the party , shall recover double damages .

The Sheriff , &c. must set his proper name to all Returns .

27 Eliz . c . 12. Every Under Sheriff , B●iliff of Franchise , Deputy or Clerk of the Sheriff , &c. must take an Oath for the Supremacy , and for the true , speedy , and indifferent returning of Writs , and impanelling of Jurors , without taking above the Fees allowed .

29 Eliz . cap 4. Sheriffs may take for the serving of ●ny Extent or Execution only 12 d . of , and for every 20 s . where the summ exceedeth not C. l. and 6 d . of and for every 20 s . being above an C. l. that they shall levy , or extend and deliver in execution , or take the body in execution for .

Courts are Courts of Record or Court Barons . 9 E 4 42. For against a recovery p●eaded in antient Demesn , or other Court Baron , one shall not say , nul tiel Recorde , f●r it is no Record , but nul tiel Recoverie , and it shall be tried by the Countrey . O●herwise it is in the King's Courts .

Of Records , which are the King's Courts , as he is King . Otherwise , 9 E. 4. i●id . if the King have a Court as Lord of a Mannor , that is but a Court Baron . And these have that credit , that no averment can be taken against any thing there entred or done . And therefore work an Estoppel to the parties in like sort , 15 El. Pl. 434. as Indentures did before . As upon a Lease made by fine , 21 H. 9. 24. 5 E. 4 1. both parties are estopped to say the Lessor had nothing in the Land .

So of Pleas in Bar , Replications , Returns of the Sheriff , &c.

Statutes .

1 E. 3. Cap. 4. Statut . 1. Averment given in a Writ of false Judgement against the Record certified .

Things also that cannot be granted but by Deed , pass here , and that more strongly , by matter of Record

18 Eliz ploy . 483. 21 H. 7. 19. 39 H. 6. 26. Stamf . praef . 56. The King taketh Hereditaments , though it be but for years . O●herwise it is of an O●ligation of Chattel personal , by matter of Record only : for to personal and transitory things , as Catalla felonum & fugitivo●um , wreck of Sea , treasure trove , and the profits of Land of persons out-lawed in a personal Action &c. the King is intituled without office or other matter of Record ; but to t●ke a Free-hold by a Condition broken , 3 El. ploy . 289. or purchase of his Villein , or such like , he cannot without office or matter of Record . Otherwise it is , where the Law casts a Free-hold upon him , as in a gift ●n Tai● , 3 El. ●loy . 229. 5 E. 4 7. the remainder to the King .

And therefore also the King taketh a Free-hold without livery or seisin by deed inrolled : but cannot be infeoffed by Deed , without inrollment of Rec●rd , for that no Livery can be made unto him .

Lit . 39. Villenage beginneth only by confessing a mans self to be one in a Court of Record . 41 E. ● . Vil● . 6. And therefore in a P●aec pe quod r●ddat , if the Tenant say , Tha● he is a Villein to I. S. a●d holds the Land in Villenage , the demandant saith that is frank , &c. and he is found frank by the Jury : yet he remaineth a Villein to I. S.

Duties of the Testator growing by record must be answered by Executors before other duties . 21 E. 4. 11.

Courts of Record are the Parliament , 1 H. 7. 2● . the higher house . Br. Recogn . 8. the lower house or Courts that have ordinary Iurisdiction . For the Parliament , when it is sitting , may take a Recognisance , and do such other things as to a Court of Record appertaineth .

The Parliament is a Court of the King , Nobility , and Commons assembled Having an absolute power in all causes . As to make Laws , 23 El. Dyer . 375. 1 H. 7. 19. 37. a s . pl. 17. 21 E 3. 46. Br. Parliament 16 to adjudge matters in Law , to try causes of life and death , to reverse errors in the Kings Bench , especially where any common mischief is , that by the ordinary course of Law there is no means to remedy : this is the proper Court for it . And all their Decrees are as Judgments . And if the Parliament it self do erre ( as it may ) it can no where be reversed but in Parliament .

Statutes .

4. E. 3. cap . 14. & 36. E. 3. cap . 10. A Parliam●nt shall be h●lden once every year .

1. H. 4. cap . 14. No appeal shall be pursued in Parliament .

Prerogative .

Statutes of restraint bind not , unless they concern the Common-wealth , or he be specially named : As the Statute of Westmin . 2. which altereth Fee-simple Conditional into an estate Tail , that Tenant in Tail shall have no power to alien , doth bind him : for it is for the Common-wealth . So as Lands being given to the King in Tail , the Remainder over , if the King have issue who alieneth , and dieth without issue , he in the Remainder may enter . But if by Statute one be attainted , and his Lands forfeit , with a proviso that of such Lands as he was seised to the use of any other cesty qui use may enter ; that bindeth not the King that cesty qui use should enter upon him , for it is not for the Common-wealth . But the Statute of 1 H. 5. cap . 5. that in Endictments , addition must be given to the party indicted , bindeth the King in that case , because Endictments are especially named .

He may license things forbidden by the Statutes . As to coin money which is made Felony by the Statute , and was before lawful , for that is but malum prohibitum . But malum in s● , as to levy a Nusance in the High-way , he cannot license to do : but when it is done he may pardon it . But where the Statute saith his Licence shall be void , there it must have 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. c●p 18. is , That the Kings Grant to be Sheriff of any County , longer than a year , shall be void , notwithstanding that the clause of Non obscante be 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 he can dispense with a Statute before it be made . And therefore a Licence to carry Bell-metal out of the Realm ( notwithstanding any Statute made or to be made ) is not good , if a Statue be made after that to prohibit it . For he cannot dispense with an Act of Parliament before it be made .

Courts of Record which have an ordinary Iurisdiction , are either general , whose Iurisdiction extends throughout the Realm , or but within some County : Wherefore these latter , for their order and course of proceeding , do in all things fashion themselves to the example of those higer Cou●ts , 34 H. 6. 41. as of the Patents from whom they come .

The former are those that are holden in Term time only ; the whole year having four Terms , Michaelmas , and Hilary Term , Easter and Trinity Term , and every Term several daies of Returns . If either the Return day , or first or last day of Term fall upon the Lords day , then the day following is taken instead of it .

Michaelmass Term ( beginning the 23 of October , and ending the 28. of Nov. ) hath 8 returns , 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 . Crastino animarum , that is the nex day after Crastino Martini , Octab . Martin Quindena Martin .

Hillary Term beginning the 23 day of Ianuary , and ending the 12 of February hath four returns , Octabis Hillarii , Quindena Hillarii , Crastino purificationis , Octabis purif .

Easter Term beginning 17 days after Easter , and ending the Monday next after Ascension-day , hath five returns , Quindena paschae , Tres paschae , Mense paschae , Quinque paschae , that is five weeeks after Crastino Ascensionis .

Trinity Term beginneth 12 days after Whitsunday , and continuing 19 days , hath five returns , Octab . Trinita● . Quindena Trinitat . Crastino Johannis Baptistae , Octab . Johannis Baptistae , quindena Johannis Baptistae .

Statutes .

32. H. 8. cap . 21. Trinity Term shall begin the monday after Trinity Sunday , for keeping of Essoyns , profers , returns . The full Term shall begin the Friday after Corpus Christi day , and have four returns onely , Crastino Trinitatis , Octabis Trini at ' , quindena Trinitatis , Tres Tri●itatis . 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 Seal .

All writs have a salutation , Rex to such a one salutem , And a conclusion expressing the name of one which is witness to the Writ , called teste ( who in wtits out of the Chancery is the King himself : in other writs the chief Justice of the place ) the place , as apud Westmonasterium , &c. and the time , both day and year of the making of it , if it be returnable , the day of the return is also appointed in it .

The third writ ( which is the Pluries ) not served , is a contempt , 2 E. 4. 1. Fitz . Nat. Br. 68. Fitz . Nat. br . ibid . 2 H. 6. 7. 7 E. 4. 14. whereupon an Attachment lieth . And therefore the third writ hath always this clause in it , Vel causam nobis significes . So may the second which is the Alias also have , if the Plantiff will .

The Officer of these higher Courts is the Sheriff to whom is committed the custody of the County .

For matters spiritual , as certyfying excommengement , and such like , the ordinary is their Officer .

And to the Sheriff the Writ must be directed , though it be for a thing done in a franchise , and he shall send to a Bailiff of the franchise : who shall serve it as a servant to the Sheriff , and the Sheriff return it .

2 H. 6. ibid . And though the Sheriff serve an execution in a Franchise , yet it is good . And the Lord of the Franchise is driven to his action upon the case against the Sheriff , for the Sheriff is immediate Officer .

2 H. 6. ibid . But in a place excepted out of every County ( as the Palace of Westminster is ) it shall be directed to the Guardian of the Palace , for he is immediate Officer to the Court , and is in the nature of a Sheriff .

7 E. 4 14. 8 H. 6. 3. 12 E. 4. 15. So Certificates of excommengement , and such like must be made by the Ordinary , not by the Commissary , Arch-deacon , or any other , though he have an immediate Jurisdiction , unless he were specially admitted an Officer to the Court .

These general Courts are the Chancery and two Benches : the King's Bench , and Common place .

Chancery , which beside that it dealeth with matters of Conscience , and moderating the strictness of the Common Law by an absolute power , dealeth also in ordinary course of Law in divers cases especially , in suits concerning the King , as Petitions . Scire facias , to repeal his Patents , &c. and so it is a Court of Law and of Record , where the Iudge is the Chancellor , having the custody of the Great Seal of England , under which pass all Writs out of the Chancery with Teste me ipso , and also the Kings Grants , 4 El. Pl. 213. being therefore called Letters Patents , Though it be of things which he hath in his natural capacity , as by descent from his mother , Br. Courts fol. 108. &c. and are entred of Record in this Court .

Statutes .

18 H. 6. cap . 1. The King's Letters Parents must bear date the day of the delivery of the Warrant to the Chancellor , and not before , otherwise they are void .

3 E. 6. cap . 4. Every one that hath any interest in any Land or office by , or under Authority of the King's Letters Patents ( made after the fourth day of February , 27 H. 8. ) may make his title , avowry Plea , &c. as well against the King as any other by an Exemplification ( or constat ) under the Great Seal .

13 Eliz . cap . 6. So of the Patentees of King Henry , 8 E. 6. Queen Mary , Philip and Mary , and her Majesty that now is , all claiming under them .

Such Grants are effectual to pass a freehold from the King without any 38 H. 8. Br. Patents 101. livery of Seisin . And therefore his letters patents being Tenant in Tail make no discontinuance . And being matte●s of record which being no livery , they take effect from the time of the date . Therefore the Kings Charter of pardon shall be pleaded without shewing when is was delivered , 37 H. 6 21. because being a matter of Record , it shall have relation to the date , and not to the livery . Ot●erwise it is of a deed .

In default of a Chancellor , the Lord-keeper of the great Seal hath his authority . Sta . 5. El. ca. 18.

The Keeper ( or Master ) of the Rolls is an assistant to this court .

In the Kings Bench and Common place , the Iudges art one chief Iustice , and three ( or sometimes more ) other Iustices . The teste of their writ is , teste Johanne P●p●am ( the chief Justice &c. )

The Kings Bench is that which dealeth properly with Pleas of the Crown , 10 El. ploy . 320 both hearing and determining them .

The Common place which dealeth properly with common Pleas , 10 Eli . ibid . such are those termed which concern possessions .

Prerogative .

The King hath a proper Court of this kind , 10 Eliz . ibid . for all things touching his revenues , called the Exchequer .

The Iudges whereof are called Barons or housebands for the Kings Revenue : being one chief Baron , & three other . And this also hath a court of chancery before the chancellor and barons of the Exchequer , called the Exchequer chamber .

The Escheator here is a special officer , 4 E. 4. 24. He may take Inquisitions virtute officii . 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 tarry in his office above a year .

These are the Courts whose jurisdiction extends through out the Realm .

Those which deal but within some County , are the Sheriff in his turn , and the Coroners .

The Sheriffs turn is a court of record for offences , F.N.B. 82. which are common grievances as robbery , 22 E. 4. 22. bloodshed , cliping , & washing of silver and gold , night-walking , the not repairing or making clean of a bridge or a ditch , 10 H. 6 , 7. fraies , and assaults , &c. But not 22 E. 4. ib . murder , or breaking of ones hedge &c. for they are no common grievances , but a wrong to one singular person .

Whereunto every man of the age of 12 years and upwards ( being within the precinct ) oweth suit , F. N. B. 116. Br. per . Br. leet . 39. 12 H. 7. 18. 25 E. 3. 23. Br. per . Br. ib . and must be sworn to the Kings Allegiance . And this is called a suit real , being not due by reason of m●ns Freeholds , but of their body , because they are resiant within the precinct of the Leet . But Women are not compellable to come thither , nor to be sworn to the King . And therefore when a woman is outlawed , F. N. B. ibid . she is said to be waved and not outlawed , because she is never sworn to the Law .

Peers of the Realm are excepted , and Parsons of Churches , St. Marl . c . 16. so reciteth it . and other men of Religion , as appeareth before .

2 H. 4. 24. 8 R. 2. avowry . 194. The offendor here shall be amerced , and distrained for that amercement , throughout the whole precinct of the County .

Statutes .

Magn . Chart . 35. The Sheriff shall make his turn throughout the Hundred but twice a year ; that is to say , once after Easter , and again after Michaelmas . And the view of Frankpledge shall be made at the turn of Michaelmas .

13 E. 3. c . 14. Stat. 1. The turn must be yearly , once within a month after Easter , and another time within a month after Michaelmas : if they hold them in another manner , they shall lose their turn for the time .

1 E. 3. c . 17. Endictments in Sheriffs turns must be by Rolls indented ; one part to remain with the Endentors , the other with the Sheriff .

1 E. 4. c . 2. Upon Endictments and Presentments taken before Sheriffs , or their Ministers at their turns or Law-days , they shall not attach , arrest , or imprison , nor levy any fine or amerciament of any person so indicted ( or presented ) but shall deliver the same Endictments or Presentments to the Justices of Peace of the same County at their next Sessions , who shall proceed thereupon as if they were taken before them .

1 R. 3. c . 4. None shall be returned upon pannel of enquiry of the Sheriffs turn , but men of good name and fame having within the same Freehold land to the yearly value of 20 s . or Copy-land to the yearly value of 26 s . 8 d . and every Endictment otherwise taken shall be void .

The Coroners Court is a Court for matters of the Crown . Battery , Maime , Stam . 52. Rape , Murder , &c.

Statutes .

Westm . 1. c . 10. Coroners shall be chosen in all Counties , of the wisest and sufficientest Knights .

14 E. 3. c . 7. That no Coroner shall be chosen , unless he have land in fee sufficient in the same County , whereof he may answer to all manner of people .

28 E. 3. c . 6 All Coroners of the County shall be chosen in the full Counties , by the Commons of the same Counties , of the most convenient and most lawful people that shall be found in the same Countie to do the office . Saved always to the King , and other Lords which owe to make such Coroners , their Seigniories and Franchises .

Westm . 1. c . 10. The Sheriffs shall have Counterrols with the Coroners , as well of their Appeals , as of Inquest of Attachments , and of other things which to that office doth belong .

Westm . 1. cap . 10. Coroners must take nothing for doing their office .

14 H. 7. 31. 4 H. 7. 3. Vpon just cause of exception to the Sheriff process out of the higher Courts shall be directed to the Coroners .

Prerogative .

Diu of courts f . 102. The Steward and Marshal of the Kings house , have a Court , for all personal actions , and pleas of the Crown arising there . As debt , covenant , trespass , &c. and by the common Law they might hold plea of Freehold it self , as it seemeth by the Statute of Artic . super Chartas cap . 3. which saith , Diu of courts f . 102. Stamf . 57. a. from henceforth they shall not hold plea of Freehold . Also they may inquire of treason , murder , felony , manslaughter , bloodshed , &c. and take appeals of all kinds of Felony and Maim .

Statutes .

Artic . super chart cap . 3. They shall not hold plea of any contracts and covenants , but such as one of the Kings house maketh with another of the same house . Nor of any trespass ; unless the party were attached and the plea determined before the kings departure from the place where the trespass was committed .

Any thing attempted here against , is void .

Pleas of Felony ( that cannot be determined before the Steward , because the Felons cannot be attached , or for other like cause ) shall be referred to the Common Law .

5 E. 3. c . 2. and 10 E. 3. c . 2 : Inquests shall be taken there by men of the County about , and by no men of the King's house , except it be in Covenants , Contracts , and Trespasses , when either party is of the King's house .

5 H. 6. c . 1. The Defendants may averr that themselve● or the Plaintiff ( at the time of the Suit commenced ) were not of the King's house against the Record .

13 R. 2. c . 3. The jurisdiction shall not pass above 12 miles about the K. house .

33 H. 8. c . 12. The Lord Steward of the King's house alone , and ( in his absence ) the Treasurer & Comptroller of the K. house , with the Steward of the Marshalsy , or 2 of them ( whereof the Steward of the Marshalsy to be one ) may without Commission hear and determine all Treasons , Misprisions of Treasons , Murders , Manslaughters and Bloodshed within the K. house , although the King be removed before . The enquiring and verdict must be by the K. houshold servants in the Check Roll .

No Clergy nor Sanctuary to any that is found guilty before them .

By reason also of certain Franchises , grow two other Courts of Records , which deal within some certain precinct ; a Leet and Court of Pypowders .

Fitz . N. B. 82. 23 E. 3. 22. A Leet is a Court of Record , having the same Iurisdiction within an Hundred only , or some less Precinct , which the Sheriffs turn hath in the County , 22 E. 4. 22. the profit of it being to a common person . Therefore it 22 E. 4. 22. dealeth with offences that are common grievances . And F.N.B. 161 Brit . g . Br. leet 39. all ( but Peers of the Realm ) owe suit unto it , and must be sworn to the King's Allegiance . And the 2 H. 4. 24. 8 R. 2. Avowry 194. offendor for an Amerciament shall be distrained throughout the Preci●ct of the Leet ; and that as well out of the Land holden of the Lord of the Leet ( where the offence was done ) as within it . The Sheriffs turn , as an overseer of this Court , is to 31 H. 6. leet 11. enquire whether the Tythings be whole or no : to 12 H. 7. 18. present defaults that are not redressed in the Leet : And if ( for misuser or other cause ) the Leet be seized into the King's hands , all the people shall come to the Sheriffs turn . But 29 E. 3. 21. Avowry 247. otherwise the Sheriff in his turn , hath no power to enquire of an offence done within the Leet .

A Court of Pypowders is a Court of 6 E. 4. 3. 7 E. 4. 23. A writ of Error lieth there , and not a writ of false judgment . Record incident St. 17 E. 4. c . 2. so reciteth it . to fairs and Markets : but by 13 E. 4. 8. ib . custome , a Court of Pypowders may be held out of Fair or Market ; for all Actions arising there , by reason of any Contract , Covenant , Trespass , Debt , &c. 4 M. Dy . 133. And the suit must at the same time be commenced .

Statutes .

17 E. 4. c . 2. made perpetual , 1 R. 3. c . 6. No Plea shall be holden in Court of Pypowders , unless the Plaintiff or his Attorney swear that the matter of Declaration was done in time of the same Fair , and within Jurisdiction thereof ; but that Oath shall be no conclusion to the Defendant , but that he may plead as he might before . Every Steward , &c. holding Plea contrary forfeiteth C s .

The King ( by Commission under his Letters Patents ) but not by writ , 42 Ass. pl. 12. may erect other Courts at his pleasure .

Such were Iustices of Eyre , and such Courts of Record in Corporations , and other places , by special Charters .

The King's Councel also is a Court , to deal with the punishment of Contempts , and called the Star-Chamber . But this is no Court of Law .

Statutes .

3 H. 7. c . 3. The Chancellor , Treasurer , and Privy Seal , or two of them ( calling unto them a Lord Temporal , and another Spiritual of the King's Councel , and the two chief Judges ) may examine Riots , Maintenances , &c.

These are the Courts of Record . F.N.B. 239. p. Br. juris . 99. F.N.B. 239. g . A Court Baron is the Court of a common person , and is for personal accounts under the value of 40 s . For a Trespass lieth not in a Court Baron of dammages above 40 s And a Supersedeas lieth to the Sheriff , upon divers plaints in the County Court , every one under 40 s . when all are for one entire debt of 40 s . Or upon an Action of Covenant brought there to the dammage of above 40 s .

●r . leet 32. These cannot be kept oftner than every three weeks . But so it be not oftner than from three weeks to three weeks , it may be holden as often as the Lord will . 21 E. 4. 5. And therefore to hold off one by doing Suit at his Court of D at Mich . and at Easter , it is to be intended at his Court Baron ; for though a Court Baron be commonly holden from three weeks to three weeks ; yet Suit of Court may be once , twice , or thrice a year , as it is first reserved .

The Process here is by Precept to the Bailiff , 16 H. 7. 14. good enough , though it be but by word : inasmuch as the trial in a Court Baron is all by the Country , and not by Record ; for is but matter enfait .

The sutors are the Iudges both in an hundred Court , 6 E. 4. 3. County Court , or Court Baron ; and the Bailiff and Sheriff are but Ministers .

F.N.B. 82. A Court Baron is the Lords , or the County Court . The Lords is either of a particular Mannor or of a whole hundred . For a Court Baron is incident to every 34 H. 6. 49. Mannor a●d to every 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 County Court , 12 H. 7. 18. which is incident to the Sheriff . For the Sheriff hath two Courts by the Common Law for government of the Shire , his County Court ( wherein one shall have remedy against another for any matter between them ) and the Sheriffs Turn . F.N. B. 82. But the Pleas holden before him in the County Court are not of Record , though it be by Writ of Justices .

CHAP. II . Of Writs Original .

OF an Action , there be two parts , 10 El. Dyer 268 5 El. Dyer 220. Suit and Iudgment .

Suit is the parties dealing in the Action : And therefore all that while it is said to depend in Plea , but not after Judgment . The party that bringeth the Action , is called Plaintiff in a personal Action , Demandant in a real ; he against whom it is brought , Defendant in the first , Tenant in the other , who for their help are allowed counsel learned in the Law .

Statutes .

Westm . 1. cap . 25. No Minister of the King may maintain another in any Action in the King's Court to have part of the thing , or other profit by Covenant , upon pain of punishment at the Kings will .

Westm . 2. c . 49. None of the King's Officers shall take or purchase , or bargain for Land , Tenement , or Advowson , whilst the thing is in Plea , upon pain to be punished at the King's pleasure , as well the Purchaser as the other .

Artic . super chart . c . 11. Neither the King's Officer , nor any other , shall do so upon pain of forfeiting to the King so much of his Lands as amounteth in value to that he purchaseth . Any may sue for the King before the Justices before whom the Plea hangeth .

32 H. 8. c . 9. None shall buy , sell , or get or take , promise , or grant to have any pretensed rights or titles to lands , &c. except the seller , ●r those ( by whom he claimeth ) were in possessions , or took the profits by space of a year next before , upon pain that the seller , &c. shall forfeit the value of the land , and likewise the buyer knowing the same . Provided he that is in lawful possession by taking the yearly profits , may buy &c. anothers pretensed right .

Gloucest . c . 8. Attorneys may be made in all Pleas where Appeals lie not .

Mer . c . 10. In suits , at a County , Tything , Hundred , Wapentake , or Court of the Lord .

Westm . 2. c . 10. A general Attorney may be made in all Counties where Justices do journey .

3 H. 7. c . 1. An appeal of Murder or Death may be pursued by Attorney .

The suit hath two parts , the beginning and proceeding .

The beginning is the proper duty of the Plaintiff ; and hath two parts .

The first matter of the suit , and original process .

The first matter of the suit must always be brought in that County where the cause of suit groweth . 14 E. 4. 4. As actions of debt upon an escape may be brought in t●e County where the arrest or escape wa● , but not in any other C●unty . A 2 Mar. Br. attaint . 104. trespass of battery , goods carried away , or writings broken , may be brought in any County , for they are not local . Br. bill . 35. Otherwise it is of trees , or grass-cut down , they must be brought in their proper County , if i● be by bill , the County is set at the margent .

Statutes .

6 R. ● . c . 2. Debt , account , and all such actions shall be brought in the County where the contract was made .

The first matter of the suit is for every man by Writ out of the Chancery , or in Courts where Writs lie not by plaint or bill ; for the King alone by enquiry

In all of the first kind , the plaintiff must find surety by some that will be pledges to prosecute the suit . And so is the form of every original , Si ( the Plaintiff ) fecerit te securum de clamore suo prosequendo ; the entry is , Plegij de prosequendo Johannes Do● , Rich . Roo . And these may be either to the Officer , or to the Court where the suit is . But a poor man , 9 E. 4. 27. instead of sureties , shall give his faith to prosecute it : Whereupon the form for him is , Regist . fol. 228. & per Br. pledg . 29. Et nisi fecerit & praedict . ( the Plaintiff ) fecerit te securum de clamore sub prosequendo per fidem suam quia pauper est .

Writs that begin the suit are Original or Commissional .

Original , which appoint the first Process , if the Plaintiff find the Pledges returnable in the Kings Bench or Common Place .

This must be 2 E. 3. 4. true Latin ; for upon habeas ibi hos 9 H. 7. 16. breve , or uxori 3 E. 3. 86. where it should be uxor , and such like , the Writ shall abate , and beside 3 E. 3. ibid . All this that followeth is the Rule of the Register . formal , as the general to be put in demand , and in plaint before the special . As land is general to pree , pasture , wood , joncary , marsh , &c. Wood is the general of all trees growing , and therefore shall be put in demand before Alders and Willows , which are but species of it . The entire shall be demanded before the moiety or part or parts . The more worthy thing shall be demanded before the less worthy ; as a messuage before land : for land that hath building upon it is more worthy than land without building . A Castle before a Messuage , or a Mannor ( and yet it may be parcel of a Mannor ) But the reason is , because a Castle is more worthy , as being a place of force and defence against the enemy in time of war , 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 of Noble men . So in a Replevin ; if it be of two Chattels , one quick , and the other dead , the living thing shall be first demanded .

Also it must express the name of baptism and sirname ; or in lieu thereof , the name of dignity both of the Plaintiff and Defendant ; but not the name of his office , which is no dignity . As pr . q . r . Johanni Duci 8 E. 4. 24. saith the reason is , because there are in England no more Dukes of that name : and so it may well enough be known of whom it is meant : and also for the solemnity of the creation . But otherwise it is of Knights , for there are 1000 Knights in England ; therefore there the Writ must be praecipe J. S. militi . Lancast . is good , but not Johanni Rectori 27 H. 6. 3. de D. without expressing his sirname But when an Officer is to sue by reason of his Office , as a 13 E. 3. br . 675. in act . real . Prebendary , 12 H. 4. 20. in Assis● . 10 H. 7 5. in waste . 18 Ed. 4. 17. in annuity . Parson , Executor 30 H. 6. 5. , Gardein 9 E. 3. 465. 33 H. 8. Dyer 50. 37 H. 6. 29. 27 H. 6. 3. by Knights service , &c. there he must express the name of his Office : or when one bringeth an Appeal of murder , as brother and heir , &c.

Where there be many of one name , diversity of the names must be put by addition of eign puisne , &c. else the writ shall abate .

A Corporation may sue by the name that they are corporate , without name of baptism or sirname ; as pr . q . r . majori & communici L. &c. or Decano & Capitalo D. &c.

Statutes .

1 E. 6. c . 7. The acceptance of a new n●me of dignity shall not abate the writ .

The King's servants in his Court , or other by special grace of the Chancellour , Regist . fol. 228 & per . Er. pledg . 29. may here be admitted to find pledges in the Chancery . And then t●e form is , Qui● prae● ▪ ( the Plaintiff ) fecit nos secures de clamore suo prosequendo pro C. de Com . L. & D. de Com . S. Summoneas , &c.

CHAP. III . Of Common Pleas .

Lit . 116. WRits original are concerning Common Pleas or Appeals that concern life .

18 E. 4. 4. These that concern Common Pleas , lie not for or against a feme covert without her husband ; but 1 H. 4. 5. Stamf . 62. a. an appeal of felony against her doth .

Many shaving or giving jointly cause of action , 20 E. 3. Aud●● . Querela 28. may sue or be sued together in one , which is called Joinder in Action . As A. is bound to B in one statute Merchant , and after A. and dive●s others are bound to the same B. in another statute , and B. by one deed releaseth to them all , and after sueth executi●n severally : Th●y shall join in an Audita querela , because of this joynt Release . So one Decies tantum shall be against all the Jurors that take money to give their verdict , for it is the entire act of all . 33 H. 6. 28.

Several actions of one nature , as debt , 3 H. 4. 13. and detinue ( for these are of one nature , inasmuch as the warrant of Attorney in a writ of detinue , and also the essoin shall be in placito debiti ) may be joined in one original with several praecipes or commandments to be executed .

Prerogatives .

Here in place of action against the King petition must be made unto him in the Chancery , Stamf . prer . 73. or in Stamf . prer . 73. Parliament , for Stamf . prer . 42. no action did ever lie against the K. at the Common Law , but the party is driven to his petition , and 34 H. 6. 5. if the Escheator seize goods without cause , or seize the goods of one out-lawed , which outlawry is after reversed , and account for them in the Exchequer ; the party must sue by petition for them . And that ( in the case of hereditaments ) though the King have granted the same away . 9 H. 6. 15. For upon an office finding J.S. ( who was attainted of felony or treason by matter of record before ) to be seized of certain Land , if the King seize and grant it over ; yet a stranger that hath right to enter , or bring his action , may do neither against the Patentee ▪ but must to the King by petition . Whereupon Process shall go out against the Grantee to maintain his title As the Stamf . prer . 76. King grants over his wardship , or any other certain estate in the land . The Scire facias for him that ●ueth the petition , must be against the patentee , not against the heir , in whose right the King is seized ; for he is not to plead with the heir , but with the King , or him that hath his interest . 7 H 4. 33. And in a petition to revoke Letters Patents made to two , &c. a Scire facias upon 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 .

4 E. 4. 24. But whilst personal things seized for the King remain in the Officers hands , the party that hath right may traverse the Records that entitle the King , and so have his goods again , or sue the Officer , or disturb him to take the profits : As where it is found that one out-lawed in a personal account , was seized of certain land ; and in this case he shall not be driven to a petition : otherwi●e it is in case of a freehold o● inheritance .

9 E. 4. 52. Petition is a supplication declaring the parties right , where mention must be made of all the King's title , else it shall abate . For upon an issue in the petition found against the King , he shall be concluded for ever to claim by any of the points contained in the petition .

CHAP. IV . Of Real Actions .

THese Writs concerning Common Pleas ate real or personal . Lit . 116. And they both again are Praecipes , or Si fecerit te securum .

A Praecipe is that which willeth the Sheriff to command the Defendant to do somewhat in certain that the Plaintiff sueth for , which if he do not , then to serve the first process . The form is , Praecipe A. quod reddat B. &c. Et nisi fecerit , &c. tunc summon . &c. And is a Praecipe quod reddat which lieth for things in render . As of real things , land and such other things in demesne , rent , corrody , &c. of personal things , mony , goods detained , and the like . A Praecipe quod faciat which lieth for things not in render , whether they lie in Feasance as a Writ de consuetudinibus & servitils , Sectu ad molendinum , &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 process to be served without more ado . The form is , Si A. fecerit te securum de clamore suo prosequendo tunc summon , &c.

Real actions where a free-hold shall be 10 E. 9. 23. recovered , are possessory or in the right .

Possessory , which are to recover a possession , as all Assises , Writs of Ayel , Besayel , and Cosenage .

In the right which are to recover a possession mixt with the right , of all which examples do follow after .

And both these may either be of a possession or right in himself , F.N.B. 5. b . or descended from his Ancestors ; which we call auncestrel .

Real actions in the right , are either founded upon the right , or for the mett right .

Statutes .

Merton c . 8. Seisin of ones Ancestor in a writ of right , shall be from the time of Henry the second .

In a mortdauncester writ of Niese and of Entry , from the last return of K. John out of Ireland .

In an Assise of Novel Disseisin , from Henry the thirds first passage into Gasc●ign .

Westm . 1. c . 38. Seisin of ones ancestor in a Writ of Right , shall be from the time of Richard the first .

In an Assise of Novel disseisin and nuper obiit , from Henry the thirds first passage into Gascoign .

In a Mortdauncester , Cosenage , Ayel , Entry , and Writ of Niese , from Henry the third's Coronation .

32 H. 8. c . 2. Seisin in a Writ of Right shall be within sixty years .

In a Mortdauncester , or in another possessory Action , upon the possession of his Ancestor or Predecessor , shall be within fifty years .

A Writ of the possession of the Plaintiff himself shall be within 30 years .

An Avowry or Cognizance for rent , suit , or services of the seisin of his Ancestor , or of his own , shall be within forty years .

Formedon in Remainder , Reversion , Scirae facias upon a fine , shall be within 50 years after the title accrue . 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 40 years next before the time of the Prescription , Title , or Claim .

1 Mar. c . 5. The Statute of limitation of 33 H. 8. c . 2. shall not extend to a Writ of right of Advowson . Quare impedit , Jure patronatus , Assise de Darrein , Presentment , droit de gard of any Lands holden by Knights service ; but the time of the seisin alledged shall be as it was at the Common Law .

These kind of real Actions , viz. where the freehold shall be recovered , lie only against the tenant of the Freehold . Lit . 115. Therefore a release of all Actions real is no Plea , unless he were Tenant of the Free-hold at the time of the release ; for else he had no cause of any such action against him . Old tenures f . 2 Neither is any such action maintainable against lessee for years , for he hath not the Free-hold . Nor the disseisee cannot have a Fraecipe quod reddat against the disseisor , 6 E. 6. Pl. 87. which is partner of the profits for years only , notwithstanding the Statute ; because by the Common Law no action lieth against him . 4 E. 4. 32. And for this cause also , non tenure of the whole , or though it be but of parcel of the thing demanded . Joint-tenancy with one not named in the Writ . 19 H. 6. 32. 22 H. 6. 12. 45 E. 3. 5. 37 H. 68. 27 H. 8. 30. Entire-tenancy of the whole , or several tenancy of parcel , when the writ is brought against two or more , are good Pleas in abatement of the Writ .

Statutes .

25 E. 3. c . 16. Non tenure shall not abate the Writ , but only for the quantity .

37 E. 3. c . 17. No writ shall be abated by knowledgment of villenage , if the Demandant or Plaintiff will aver that he that alledged the exception was free , day of the writ purchased , with the Free-holder may be joined in action , any having title to enter ; 41 E. 3. 16. as the Mortgager with the Mortgagee , the Lord with his Villein , but not the disseisee with his disseisor .

CHAP. V. Of a Plea of Land .

A Real Praecipe quod reddat is that which is for real things in render ; and is a plea of land , or other such real Praecipe .

A plea of land which is for land or other such things in demesne , where land in certain is demanded , it must always be brought in a ville , or place known out of any ville ; and not in a hamlet which is parcel of a ville . But personal actions , as trespasses , and such like , may be in a hamlet . So of Dower and Assise ; for there no land in certain is demanded ; and also in an Assise , he shall recover by view of the Jury . So in a Scire facias out of a fine nuper obiit , a writ of mesne , covenant , waste , quare impedit . These may be in a hamlet . Otherwise it is of a writ of right of Advowson .

A plea of land is a writ of Entry , or a writ shewing the Demandants title .

A writ of Entry is that which is to disprove the Tenants possession by the means of his entry .

Wherein Tenant in Fee-simple demanding of the possession of his Ancestor , shall say in the writ , Old N. B. 124. Fitz . N.B. 201. & f . quod clamat esse jus & hereditat●m suam . Tenant in tail , or for life , shall not so . Fitz . N.B. ibid . But in his declaration set forth his special estate .

A Writ of Entry is either against the first party , or in the degrees .

Against the first party , when it is against him to whom the first alienation 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 , cometh in immediately under the first party , as heir unto him , or by alienation from him .

In the Per and Cui , when he against whom it is brought cometh in immediately under the first parties heir or alienee : For if more than these two alienations ( the Per , or the Per and Cui ) pass , the demandant is driven to his writ of right . And the reason is , that there may be an end of suits . For no writ of Entry in the Post lay at the Common Law , but the same is given by the Statute of Marlbridge , c . 29. Which writ of Entry in the Post given now by that Statute lieth , when he against whom it is brought cometh in , neither in the Per , nor Per and Cui , then the writ shall be In quod , &c. nisi post dimissionem , &c. Out of all degrees , as by Abatement , Disseisin , Escheat , Recovery , Election , Succession , Dower , Judgment , &c. or as the third or more Feoffees .

The form of all which is thus . In a writ of Entry , in the nature of an Assise , against the party himself that did the disseisin , Praecipe A. quod reddat E. unum Messuagium , &c. de quo A. injuste & sine judicio desseisivit B. &c. or in the other form disseisivit C. patrem , or other Ancestor of B. cujus heres ipse est , &c. In the Per thus . In quod idem A. non habet ingressum nisi per C. qui illud ei dimisit qui injuste B. &c. ( or in the other form ) qui injuste &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 injuste B. ( or in the second form ) qui injuste E. patrem , &c. praed . B. In the Post thus . In quod , &c. nisi post disseisinam quam D. injuste fecit praed . B. ( or in the other form ) injuste 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 Entry upon an alienation . Marl . c . 29.

Writs of Entry grow either without wrong at the first , or upon a wrong .

Those without a wrong at the first , are grounded upon a determination of the first estate , or a disability 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 praeteriit , or Entry ad Communem Legem .

Ad terminum qui praeteriit , is upon a deforcement by the lesser or a stranger after a lease for years , or life expired , whether the Lessee did alien , or not . But not after the death of Tenant in Dower , or by Curtesie , for that is not properly called a Term .

Entry ad communem legem is , when Tenant for life , be it his own or anothers life , Tenant in Dower or by Curtesie of England doth alien and die , and he in the reversion for life , may have this Writ .

Of a condition broken , as Causa matrimonij praelocuti . C●usa matrimonij praelocuti , is for a woman that giveth land to a man to marry her , and he will not : but it lieth not for a man that giveth lands to a woman .

Grounded upon the disability , are a Dum fuit infra aetatem , and a Dum non fuit compos mentis .

Dum fuit infra aetatem is by the infant , when he cometh to his full age , upon an alienation by himself , or his ancestors being within age .

But the clause that he is of full age , viz. qui plene est aetatis , shall not be inserted in the writ , if either it be brought in the degrees , Per , cui , or post , or upon the ancestors alienation .

Dum non fuit compos mentis is upon the alienation of himself , or his ancestors , being of non sane memorie .

Those upon a wrong at the first are either upon 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 upon his alienation of her fee-simple , fee-tail , or free-hold , whether Dower or otherwise , or of such a joynt estate in them .

And in this writ claiming a fee-simple ; but not an estate Tail or Free-hold ; for there the writ shall make special mention of the estate , she shall say , Quod clamat esse jus & hereditatem suam , though it be of her own possession .

Statutes .

Westm . 2. c . 3. A cui in vita given to the wife after her husbands death , upon his losing of the Land by default . And the Tenant that recovered against her husband must maintain his own right .

If it be an estate of fee-simple , and she bring not in her life time a cui in vita , the heir shall have a Sur cui vita . But of an estate tail only , a Formedon lieth in this case for the heir .

And of this nature is a cui ante divortium , when it is brought by the wife after divorcement , upon such an alienation as before .

A sine assensu capituli is for the Successor of a Bishop , Abbot , Prior , Dean , Prebendary , or Master of any Hospital , after the discontinuance of the Predecessor , viz. when they alien the Lands they have in the right of their Church , House , Abby , or Priory , without the consent of their Covent , Chapter , or Conferers , &c.

Vpon an ouster , or either upon an intrusion or a disseisin .

That upon an intrusion is called a writ of intrusion , and is for him in the reversion or remainder in Fee-simple , or for life , not in tail ( for he shall have a Formedon ) nor for years , because he hath not the free-hold , after the death of tenant for life in Dower , or by courtesie .

And if Land be given to two , and the heirs of one , and he that hath fee dieth , and after him tenant for life dieth ; now the heir of him in the remainder shall have this writ . And it lieth 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 Entry in the Quibus ; or which is all one in the nature of an Assise .

Writs that shew the demandants title , are meer possessory , or in the right .

Meer possessory are those which are brought by the next heir upon an abatement after the death of an Ancestor , other than his Father , Mother , Brother , Sister , Vncle , Aunt , Nephew , Niece ; for upon an abatement after the death of any such Ancestor , an Assise of Mortdauncester lieth , as shall appear afterwards : seized in demesne , as of a Fee-simple the day of his death , though he were disseised the very same day , and so died not seized at all . Of this nature are ,

A writ of Axel after the death of his Grandfather or Grandmother .

A writ of Besay●l after his great Grandfather or Grandmother .

A writ of Cosinage after the death of his great great Grandfather or Grandmother , or any other collateral Cosin , as the great great Grandfathers brothers .

Statutes .

West . 2. c 20. In a writ of Cosinage , Ayel and Besayel , the point shall be enquired whether the Demandant be next heir as well as in a Mortdauncester .

In the right , is that which is to disprove 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 Demandants right is grown . And is a Formedon , or a writ of Escheat and Dower , unde nihil habet .

A Formedon is a Praecipe quod reddat , entitling the party by the form of the gift .

And is a Formedon in Remainder , Old Nat. Br. 1. Br. Form . 69. 3 El. Pl. 235. or a Formedon in reverter : for a Formedon in descender lieth not at the Common Law , but is given by the Statute of West . 2. cap . 1.

A Formedon in remainder is for him in the remainder Old Nat. Br. 148 , 149. for life , or in F.N.B. 217. d . fee upon a lease for Fitz . ibid . life expired . For after an estate tail expired , it lay not at the Common Law ; because it was a Fee-simple , whereupon a remainder could not depend .

Fitz . N.B. 219. C. 30 E. 1. Form . 65. A Formedon in revertor is for the honor after the issue in tail determined , as at the Common Law , if the donee alien before issue had , and after die without issue : or if he have issue , and after he or his issue die without issue . Contrary it is if he had issue , and then had aliened , and died without issue .

A writ of Escheat is for the Lord that hath a Seigniory in fee , or for life upon an Escheat .

Dower , unde nihil habet , is a writ for ones dower , Old Nat. Br. 6. which hath received no part at all of it .

Statutes .

Westm . 1. c . 48. A writ of Dower unde nihil habet , shall not abate , though she have received part of her Dower before the writ purchased , unless it were of the same party against whom the writ is brought , and in the same Town .

Br. praec . q . d . redd . 35. A writ of dower lieth against Gardein by Knights service , though he be not tenant of the Free-hold .

Fitz . N. B. 5. f . A praeoipe in capite is a praecipe quod reddat , for the meer right ; and therefore lieth only for Tenant in Fee-simple of Lands holden in chief .

Statutes .

Westm . 2. c . 4. In a place of a writ of right , a Quod ei deforceat is given to Tenants for life , or in tail , upon losing by default .

CHAP. VI . Of a writ of right of ward , and a writ of right Sur disclaimer .

OThet real praecipe quod reddats , are those which are in respect of a Seigniory , as a writ of right of ward , and a writ of right Sur disclaimer .

A writ of right of ward is to recover the wardship : If of the body , Fitz . N.B. 139. it lieth both for Gardein in Soccage , and by Knights service : If of the Land , it lieth only for Gardein by Knights Service .

Statutes .

Marlb . cap : 7. In a writ De communi custodia , if the Deforcer come not at the grand distress , the same writ shall be reiterated as oft as well it may be within half a year following , and every time the Writ read , and Proclamation made i● the County Court , if he come not to answer , nor the Sheriff find him within half a year , he shall lose the custody . Saving his action another time , if he have right .

West . 2. c . 35. In a writ of ward of land , or heir , or both , either of the parties dying before the Plea determined , a resummons shall be . And in the grand distress day must be given , that three County days may be holden before the return , in every of which Proclamation shall be made , whereupon the Defendant not appearing , Judgment shall be given for the Plaintiff . Saving the right of the Defendant , if afterwards he will claim it . So shall it be done in a writ of Ejectment of gard .

A writ of Right sur disclaimer is for the Lord , 13 H. 7. 27. to prove the lands to be holden of him , when in an action where the services should be recovered , as in an Avowry made upon the Tenant for them : Ibid . for there he shall recover the services inclusive , inasmuch as he is to have a return in an Assise , or praecipe quod reddat of rent ( for there the services are expresly demanded ) but not in a per quae servitia ( for there no services but Attornment only is demanded ) nor in a justification , 5 E. 4. 2. 13 H. 7. 27. 15 E. 4. 29. in a replevin , or an avowry in an action of Trespass ( for there the defendant shall never have a return , Old N. Br. 162. nor recover his services expresly nor includedly , the Tenant in Court of Record , viz. in the Common place , but not in Court Baron , or County Court . For there , if the Lord make Avowry upon the Tenant , and he disclaim to hold of him , the Lord shall be amerced , disclaimeth to hold of him .

And if in this writ of right sur disclaimer , Ibid . he can prove the land to be holden of him , he shall recover the land it self for ever ; because the disclaimer is of record . 16 H. 7. 1. 34 E. 3. Disc . 24 Therefore by such a disclaimer he is barred of all possessory actions for the services , as an Assise , Cessavit , Ravishment of ward , and such like ; but not of a Writ of Escheat , Right of ward , Right of customes , and services , &c. 16 H. 7. 1. A●d though the Lords distress and avowry were lawful , yet the Tenant so disclaiming shall recover dammages of him ; for the disclaimer giveth the Lord a better advantage , viz. the Land it self .

Statutes .

Westm . 2. c . 2. If the Tenant disclaim in County Court , or other Court not of Record , the Lord may remove the plea before the Justices , to cause it to be of Record , so as he may have a writ of right sur disclaimer .

Glocest . c . 4. & Explanat . c . 4. when land is given in Fee-farm , 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 lie fresh by two years , so as no distress can be found in it , not render , or do that which is contained in the writing , the other shall recover the Land by a Cessavit . But the donee coming before Judgment , if he render the arrearages and dammages , and find sufficient to do from thenceforth , that which is contained in the writing , shall retain his Land .

Westm . 2. cap . 21. If a man detain from any Lord his service due by two years , the Lord shall recover the Land by a Cessavit . This lieth also for the heir of the Lord against his tenant , his heirs , or those to whom he alieneth the Land .

Westm . 2. c . 41. So if Religious Houses that have Land given them , &c. withdraw the alms , &c. by two years , the donor shall have the like action .

CHAP. VII . Of a Writ De Consuetudinibus & Servitiis , and Secta ad molendinum .

A Real praecipe quod faciat is either to recover hereditaments , or some real thing that concerns them .

F.N.B. 151. g . Those that are to recover some hereditament , demanding of ones own seisin are in the debet and solet , demanding of the ancestor seisin , they are in the debet only , and then are in all respects as writs for the meer right , that is to say , are triable by battel or grand Assise .

These are either in respect of a Seigniory , or to recover some other heriditament .

In respect of a Seigniory , as a Writ De Consuetudinibus & Servitiis , and a secta ad molendinum ,

A writ De Consuetudinibus & Servitiis lieth for the Lord that hath an estate for life , or a greater estate , in the Seigniory , F.N.B. 151. b . and is deforced of his services .

Secta ad molendinum lieth for the Lord , F.N.B. 122. m . when the Tenants that hold of him by grinding their corn at his Mill , withdraw their suit , and grind elsewhere .

Statutes .

Marlb . c . 9. The Process either where the Lord distraineth against the form of this Statute , or the Tenants withdraw the suits due , is attachment ( wherein only Essoin is allowable , and deliverance of the distress incontinently to remain so till the plea be ended ) venire fac . and the grand distress . At which day not appearing , the distresses delivered shall so remain till recovery in the Kings Courts , till which time the Lord ( in case he be Defendant ) must distrain no more , and the Plaintiff shall be dismissed without day , if the Defendant come to answer , and the matter pass against him , the Plaintiff shall recover dammages .

This of dammages to be recovered ( in case where the tenant is defendant ) is to be understood of withdrawing the suit from the Lord himself , and not from his Predecessors .

CHAP. VIII . Of a Quare Impedit , and a quod permittat .

FOr other Hereditaments are a quare impedit , and a quod permittat .

Fitz . N.B. 33. h . A quare impedit lieth upon a disturbance , where he , or his ancestors , or those from whom he claimeth , having at any time before presented to a Church , himself is now disturbed .

Statutes .

25 E. 3. c . 3. Stat. 3. Upon the King's collation or presentment to a benefice , his title shall be well examined , and being found before judgment untrue or unjust , the collation or presentment shall be repealed . And the patron or possessor which sheweth the false title , shall have thereupon Writs out of the Chancery , as many as are needful .

Marlb . c . 12. In a Quare Impedit , and Assizes of Darrein presentment , day shall be given from fifteen days to fifteen days , and from three weeks to three weeks . And in a quare impedit , the process shall be a summons , attachment , or grand distress .

Westm . 2. c . 5. If Coparceners make partition to present by turn , and one of them present accordingly , he that is afterwards disturbed shall have a Scire facias ( and not be driven to his quare impedit ) and recover his presentation with dammages .

An Avowson ( after the death of one that hath presented ) being assigned in Dower , or to tenant by Courtesie , & they present , the heir , if he be disturbed after their death shall have a quare impedit , or Darrein presentment at his pleasure . So of an Avowson demised for life , years , or in tail , when six months pass hanging a quare impedit or Darrein presentment , so as the Bishop presenteth by lapse , the patron shall recover dammages to two years value of the Church : otherwise dammages to half a years value . The disturber not being able to render dammages , shall in the first case have imprisonment of two years , in the second of half a year .

A quod permittat lieth for one that hath Common of pasture for his beasts , Fitz . Nat. Br. 123. f . being disturbed by a stranger , so as he cannot use his Common .

CHAP. IX . Of a Curia claudenda , Writ of Covenant real , mesne and warrantia charta , where of fines .

THose that are to recover some real thing concerning Heriditaments are a Curia claudenda , or a Covenant real , and other Writs founding in that nature .

F.N.B. 128. a. F.N.B. 127. h . & 128. a. F. N.B. 136. f . A Curia claudenda lieth for a Free-holder , not for a Tenant for years , when one that hath a Close next adjoyning to him , which he should keep enclosed , will not do it . A Writ of Covenant real lieth upon a Covenant to do a thing real , as to levy a fine of Lands , &c. Writs in the nature of a Covenant real , are a writ of mesne , and a Warrantia charta .

F.N.B. 135. m : A Writ of mesne lieth for the Tenant against the mesne , when the Lord paramount doth distrein the Tenant whom the mesne ought to acquit .

Statutes .

Westm . 2. cap . 9. The Tenant distressed by the chief Lord , may have a Writ in the County where he is distreined against the Mesne , who having Land in that County , and not appearing till the grand distress , day shall be given in the grand distress , so as two Courts may be holden before the return ; wherein the Sheriff shall proclaim that he come to answer the Tenant at the day . At which day if he come not , he loseth his service , and the Tenant shall hold of the chief Lord by the same services that the Mesne held . The chief Lord may not distrein the Tenant of the Demesne if he offer the Service due : And exacting of him more than the Mesne ought to do , that Tenant shall have the remedy that the Mesne might have .

Upon a return that the Mesne had nothing to be summoned by , an Attachment shall go out , and upon a nihil returned , the grand distress with proclamation as before .

The Mesne having no Land in that County , but in another , upon such a return by the Sheriff , the party shall have a Writ Judicial to summon the Mesne in that County where it is testified that he hath Lands ; and both there , and in the other County , shall proceed to the grand distress , and Proclamation and Judgment as before .

The Mesne coming into the Court and acknowledging , or being adjudged to acquit his tenant , and not doing it , the tenant shal I have a Judicial writ of acquittance . Whereupon if the mesne come in , and the tenant can aver that he hath not acquitted him , he shall be satisfied of his dammages , and be quit of the mesne , and hold of the chief Lord ; and if the mesne come not at the first distress , then another distress shall go out , and proclamation , and so proceed to Judgment as before .

This Statute extendeth only where there is but one mesne between the Lord that distraineth and the tenant , the mesne of full age , and the tenant tenant in Fee-simple .

A Warrantia Charta lieth for him that hath Lands or Tenements warranted unto him ▪ F.N.B. 134. d . either by feoffment 12 H. 4. 24. release , or confirmation with clause of warranty , where his hereditaments are liable from the time of the action brought . F.N.B. 134. l. 22 H. 6. 22. Therefore it is policy for one to bring his Warrantia Charta before he be sued . For upon vouching when he is once sued , he recovereth in value but such Lands as the vouchee hed at the time of the voucher .

And upon these writs of 42 E. 3. 5. Covent real , T. H. Fitz . mesnes , John per Dy . 179. warranty of Charters , as also upon a Writ of 21 E. 3. 18. customes and service , a fine may be levied .

A fine is the acknowledging of an hereditament in the King's Court according to the covenant , to be his right that doth complain . He that complaineth is called Plaintiff , and the other Deforceant . And this acknowledging of it to be ones right is called , A fine sur conveyance de droit ; but If the right be acknowledged to be 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 donne . The form of a fine is , Haec est finalis concordia facta in eurit dn'i Regis , &c. unde plac ' conventionis pendet in ead ' curia sc . qd . praed . I. S. recognovit tenementa praed . esse jus ipsius A. &c.

A fine may be levied upon a writ of warranty of Charters , for it is in effect but a Covenant between the parties before the Justices , and entred of Record . 42 E. 3. 5. 40 E. 3. 7. And before the Statute of Westm . De his quae concordata sunt ( which giveth a scire fac . ) if the fine were not executed , the party should have a writ De fine facto , and recover dammages only , which proveth that a fine is but a Covenant of Record .

Where one of them must needs have such an estate at the time of the fine levied , for against the plea that the parties to the fine had nothing , 22 H. 6. 57. &c. it is no good replication that the parties were seized , &c. for if one of them were seized it is sufficient . 27 H. 8. 4. 37 H. 6. 5. Which form of pleading ( viz. that one of the parties was seized ) proveth , that if he have left an estate for years the fine is void . 7 Eliz . Play . 360. And a fine of the Land it self will pass away a Reversion depending upon an Estate for life . And this is as it were a feoffment of Record . Lit . 12. is that in a feoffment made en pais , &c. where a freehold passeth , be it by deed or without , there must needs be livery of seisin , which words ( en pais ) are put to exclude fines that are feoffments of Record . 18 E. 4. 22. 36 H. 8. Br. fines 118. So as a Freehold passeth thereby without any livery of seisin . That whereof the fine is levied , or any thing contained in it , as a Rent-common , &c. out of the Land , and Estate for years , or other Estate in the Land , &c. may be granted back again to the Conisor by the same fine . And this it called a fine Sur graunt & render ; the form whereof is ; Et pro hac recognitione , &c. The Conisee concessit to the Conisor , praed ' tenem ' cum pertium & illa reddidit in ead ' curia haben ' , to the Conisor , &c. for none can take the first Estate but those that are named in the Writ of Covenant ; but every stranger may take a remainder . As A. levieth a fine to B. who rendreth it back 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 levatis . Exception against a fine , that the Plaintiffs or Defendants , or their Ancestors , were always seized of the Lands contained in the fine , shall not from henceforth be admitted in the parties to the fine or their heirs .

The fines shall two days in the week be publickly and solemnly read , and all pleas cease in the mean time .

5 H. 4. cap . 14. All Writs of Covenant and other , whereupon fines be levied , the Dedimus potestatem , and all knowledges and notes of the same , before that they be drawn out of the Common Bench by the Chirographer , shall be inrolled in a roll to be of record for ever . Out of the which execution shall be had , if the notes or fines shall be imbezelled .

23 Eliz cap . 3. Every Writ of Covenant , or other writ whereupon any fine is levied , the return thereof , the Dedimus potestatem , and return thereof , the concord , note , and foot of the fine , the proclamations and the Queens silver . Also every writ of Entry in the post or other writ , whereupon any common recovery is suffered , the writs of summons ad warrantiz●ndam , and the returns of all these writs , and every Warrant of Attorney may at any mans request be inrolled . Which enrollment shall be of as great force to all purposes in Law , as the things themselves , if they were extant .

No fine , proclamation , or common recovery shall be reversed by writ of Error , by reason of false Latin , rasure , enterlining , misentring of the Warrant of Attorny , or of any proclamation misentring , or Non-return of the Sheriff , or by reason of any other defect of form in words , and not in matter of substance .

Fines executed bind all persons , Lit . 104. if claim be not made within a year , therefore it is called a fine , Quia finis finem litibus imponebat . 7 Ed. 2. 37. Cont . claym . 7. And in a fine upon a render , if the Conisee sue not execution within the year , but after the year , by a Scire facias , no stranger need to lay his claim .

Statutes .

34 Ed. 3. c . 18. The plea of Non-claim of fines from henceforth to be levied , shall not be any barr .

34 H. 7. c . 24. Every fine after the ingrossing shall be proclaimed in the Court the same Term and the three next , four several days in every Term , all Pleas ceasing the whilst . Which proclamations so made , the fine shall conclude all privies and strang●rs , except women covert , persons within 21 years of Age , in Prison , our of the Realm , or if non sane memorie ( being no parties to the fine . ) So they or their heirs take their action , or lawful entry within five years after those imperfections removed . Saving to all persons , and their heirs ( other than parties ) the right claim and interest which they have at the time of the fine . So that they pursue it by action or lawful entry within five years next after the proclamations . And saving to all other persons such right , title , claim , and interest , as first shall grow , remain , or come to them after the proclamati●n , by force of any matter before the fine . So they take their right according to the law , within five years next after it grow , &c. And those that be Covert-baron &c. at the time when it groweth , &c. that they or their heirs take their actions , or lawful entry within five years after those imperfections removed .

Saying also to all not parties , nor privies the exception that none of the parties , nor any to their use , had any thing in the Lands at the time of the fine .

31 H ▪ 8. c . 36 All fines levied by any person of 21 years of age of Lands entailed before the same fine , to himself or his ancestours in possession , reversion , remainder or use , shall immediately after proclamation made , be a sufficient barr against him and his heirs , claiming only by s●ch entail , and against all other , claimi●g only to his use , or the use of any heir of his body .

1 Marlb . c . 7. All fines whereupon proclamations be not , or shall not be duly made ( by reason of the adjournment of any Term by Writ ) shall be as good as if any Term had been holden from the beginning to the end , and Proclamations therein made according to the Statute .

31 Eliz . c . 2. Proclamations of fines shall be only four times , viz. once in the Term wherein the fine is ingrossed , and once every of the three Terms next after .

A Feme-covert joyning with her husband Lit . 149. in a fine it bindeth her for ever . Therefore here the Iustices must examine her , 15 E. 4. 1. to see that she do it willingly . For i● she say upon her examination , that the husband did imprison her to levy the fine , this fine is not to be received . A grant by fine of a Seigniory , Rent-charge , Rent-seck , remainder , or reversion , is presently good , Save for bringing actions that run in private between the Tenant and him . As an Action of Waste or Consimili casu , 48 E. 3. 15. when the reversion of Tenant for life is granted by fine , and after Tenant for life alieneth in fee , a Writ of Escheat or Ward , when the Tenants services are granted by fine , and after the Tenant dieth without heir , or his heir within age . 37 H. 6. 5. But in these cases he may enter for a Forfeiture or Escheat , and seize the Ward ; and shall also be received upon default of Tenant for life .

CHAP. X. Of an Assise and Juris utrum .

THus much of real Pracipes . Real si fecerit te securum , are an Assise , and Juris utrum , or other .

F.N.B. 177. a. An Assise is such a real Plea meerly in possession .

An Assise of ones own only possession is an Assise of Novel Disseisin , or an Assise or Nusance . An Assise of Novel Disseisin is for a Free-holder against his disseisor , whether it be of Land or Rent , or the Bayliff of the disseisor , if himself cannot be found : And being of a Rent-charge , or Rent-seck , all the Tenants of the Land , we call them terretenants , 31 Ass. pl. 31. 32 Ass. pl. 10. must be named , and the whole Land put in view , though he were disseised by one Tenant only . If the Lord distrein the Tenant too often for the Rent or Services : that is to say , such as too great a distress may be taken for , as Rent-service , &c. but not for fealty , suit of Court , &c. for which there cannot be any too great distress . And whether it be the Lord mediate or immediate , the Tenant may have an assise : the reason is , for that the Tenant cannot make rescouse .

Statutes .

Magn . chart . cap . 12. Assises of Mortdauncester , and of Novel Disseisin , shall not be taken but in their proper County by the Justice of Assise ; and if they cannot be determined there , they shall be determined by the same Justices in their journey : upon a difficulty of any points , they shall be reserved to the Justices of the Common Place , and there determined .

Westm . 2. cap . 13. 13 E. 1. Stat. de Mercator . 27 E. 3. cap . 9. Tenant by Elegit by Statute-Merchant , and by Statute-staple , shall have an Assise of Redisseisin .

Westm . 1. cap . 47. The Gardein or chief Lord enfeoffing one of parcel of Land in his hand , the heir may presently have an Assise of Novel disseisin against the Gardein and Tenant , and the Gardein shall lose the Ward , and all the tennant that he holds of the heirs for life .

Westm . 2. cap . 25. A man shall have an Assise for Estovers of Wood , profit to be taken in wood of Nuts , Acorns , and other fruits of Corrodies , delivery of Corn and other Victuals and necessaries of Money to be received yearly in a place certain of toll , trorage , passage , pontage , pawnage , and such like , to be taken in places certain . Custodies of Woods , Parks , Forests , Chases , Warrens , Gates , and other Bailywicks and Offices in fee . And in all these cases the Writ shall be De liber● ten●ment● . Likewise an Assise is given for Common of Turve-land , fishing , and such like Commons which a man hath append●nt to a Free-hold , or without a Free-hold by special Deed , at the least for term of his life .

Westm . 1. cap . 24. An Assise given against Escheator , Sheriff , or other Bayliff of the King , that seizeth any Lands by colour of his Office , without special warrant or commandement , or certain Authority that belongeth to his Office so to do , and double dammages to be recovered .

Westm . 2. cap . 25. When Tenant for years , or in ward , alieneth in fee , the remedy shall be by an Assise , as well against the Feoffer as the Feoffee , during the life of either of them . If by the death of either of them remedy fail by that Writ , then the remedy shall be by a Writ of Entry .

7 Rich . 2. cap . 10. An Assise of Novel Disseisin of Rent out of Tenements in divers Counties , shall be 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 between the same parties , or that there is a Writ of higher nature hanging , &c. and hereupon voucheth Rolls or Records to warranty , and at the day given him , he fail of that he vouched , he shall be adjudged a Disseisor , without taking an Assise , render double dammages , and have a years imprisonment . If such exception be alledged by the Bayliff in the absence of his Master , the taking of the Assise and Judgment shall not thereupon be delayed . But his Master afterwards offering to prove before the same Justices , such an exception shall have a Venire facias for the Record , which if the Justices see , might have been available to have barred the Plaintiff , they shall award a Scire facias against him that recovered , wherein the Defendant shall recover again his seisin and dammages , with his double dammages sustained since the first judgment and imprisonment of that party that recovered . In like manner , if the Defendant , against whom an Assise passed in his absence , shew any Deed , Release , whereupon the Jury were not , nor could not be examined , because there was no mention of them in the pleading , the Justices , upon sight of those writings , shall award a Scire facias against the party that recovered , and cause the same Jurors to come before them . And the writings being proved true by their verdict , or by the enrollment of them , like punishment shall be as before .

Westm . 2. cap . 30. The Jurors shall not be compelled to find a disseisin , or no disseisin , but may give their verdict at large .

Merton . c . 3. A man disseised recovering his seisin by Assise of Novel Disseisin , or confession of the party , and having the same delivered him by the Sheriff , if he be again disseised of the same Tenement , by the same disseisor , shall have a Writ of Redisseisin to command the Sheriff , taking with him the Keeper of the Pleas of the Crown , and other lawful Knights , in proper person to go to the Land , &c. and by the first Jurors , and other lawful men , to make enquiry . This must not be without special commandment of the King .

Westm . 2. cap . 26. A writ of redisseisin shall lie for them that have r●covered by default , redition , or otherwise , without Recognition of the Assises and Jurors .

Merton . cap . 3. There disseisor shall be imprisoned .

Marlb . cap . 8. And not delivered without special commandment of the King , and besides shall pay a fine .

Westm . 2. cap . 26. He shall answer double dammages , and not be repleviable by the common writ .

Westm . 2. cap . 8. In fine , writs of redisseisin must be inrolled in the Chancery , and a Transcripsit thereof shall be sent into the Exchequer in the end of the year . An assise of Nusance is for him whose Free-hold is spoiled by any Nusance ; F. N. B. 184. for if he have but a Lease for years in the Land , he shall not have an assise of Nusance , but an action upon his Case .

Statutes .

The form of the writ F. N. B. 195. 14 El. Dy . 310. is that the 3 points to be inquired in a Mortdauncestor ( all expressed in the writ ) are 1. whether the Ancestor were seized in fee day of his death . 2. Whether the Demandant be his next heir . 3. Whether the Ancestor died within 50 years next before the writ purchased . Westm . 2. c . 24. Giveth an Assise of Nusance against him to whom the Tenement is alienated after the Nusance is made .

6 R. 2. c . 3. The Plaintiff , if he will , may have a writ of Nusance in the nature of an Assise , determinable before the Justices of one Bench or other , or before the Justices of Assise .

An Assise of his ancestors possession only called an assise of Mortdauncestor , is for the next heir upon an abatement after the death of his father , mother , brother , sister , uncle , aunt , nephew , or neece : for of other Auncestors , a writ of Ayel , Besayel , or Cosinage , and not a Mortdauncestor lieth , who was seized in demesne as of a fee F. N.B. 196. k . simple the day F. N.B. 195. d . of his death , though he were disseised the very same day , and so died not seized at all . But upon Lands given to one and his second wife ( he having a son by a former ) and the heirs of their two bodies , their son cannot have a Mortdauncestor ( after the death of his father overliving the second wife ) for he is not next heir , but his elder brother : and therefore , by the Common-Law , he was driven to a Formedon en descender , 4 El. Pl. 239. F.N.B. 195. d . which was nothing else but a writ formed upon his case . So if the Auncestor were seized in tail , the remainder to his right heirs , a Mortdauncestor lieth not , for thereof the Demesne he is seized in tail , not in fee .

Statutes .

Magna charta cap . 12. vide supra .

Marlb . cap . 16. A Mortdauncestor given against the Lord that will not render the Land to his Ward at full age .

Westm . 2. cap . 4. If a woman having no right , recover dower against a Gardein , the heir at full age shall have a Mortdauncestor against her .

Gloucest . cap . 6. All the heirs , whereof one is son or daughter , brother or sister , nephew or neece , and the other in a further degree shall joyn in a Mortdauncestor .

Gloucest . cap . 3. The heir shall have an Assise of Mortdauncestor , if Tenant by Courtesie alien and leave no assets .

An assise which may be either of his own , or his Ancessors possession , called an assise of Darrein presentment , is upon a disturbance when F.N.B. 31. g . Old N. B. 33. himself or his Ancestor did last present ; and therefore lieth for F.N.B. 31. d 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 be always taken before the Justices of the Common Place .

F.N.B. 48. r . Marlb . cap . 12. and Westm . 2. cap . 2. A Juris utrum is such a real Plea founded upon the right for a Parson or Vicar upon his predecessors alienation .

Statutes .

14 E. 3. cap . 16. A Juris utrum , and other writs according to their case , given to Parsons , Vicars , and Wardens of Chappels , Provosts , Wardens , and Priests of perpetual Chauntries for Lands in Frankalmoign , as well as to Parsons of Churches or Prebends .

CHAP. XI . Of a Writ of Partition , Nuper obiit , and a Quo jure .

THis is the nature of an assise , and Juris utrum . Those that follow are either a Partitione facienda , & nuper obiit ( which doth lie between privies in blood ) or a Quo jure .

Lit . 53 , 65 , 72. A Partitione facienda lieth between Coparceners to compel partition to be made but not between Jointenants , Lit . 98. 5 E. 3. part . 11. or Tenants in Common , yet partition made there by assent between them is very good ; but the husband of one of the Coparceners coming to be Tenant by Courtesie , such a writ lieth for the other Coparcener against him , because he cometh in of the state of his wife , but not for him , against the other . 1 H. 7. 5. 11 H. 4. 5. 28 H. 6. 2. 21 E. 3. 7. 28 H. 8. Dy . 2● . Therefore here for equality of partition , things that otherwise cannot , may be granted without Deed : As a Rent , Reversion , Seigniory , Way , Avowson , Composition to present by turn , &c.

Statutes .

31 H. 8. cap . 1. Jointenants or Tenants in Common of an Estate of Inher●tance , may be compelled to make partition , and afterwards shall have aid to deraign the warranty , paramount , and to recover for the rate as Coparceners ( after partition ) should .

32 H. 8. cap . 32. Jointenants , or Tenants in Common for life or years , or where one or many hold for life or years with another that hath the Inheritance , may be compelled to make partition . Such partition shall be prejudicial to none but the parties , their Executors and Assigns .

Nuper obiit lieth against one privy in blood , F. N. B. 197. that entreth after the death of the ancestor that died seized in Demesne . And therefore being but to try the privity of blood , vi●w , nor voucher , lieth not , neither is Non-tenure any plea .

F.N.B. 1●8 . A Qu● jure lieth for the Tenant of the Land when one challengeth Common , ther● to try whether in right he ought to have any ●●n● .

CHAP. XII . Of Debt and Detinue , whereof a Writ of Annuity .

THus far of real Actions . A personal action is that wher● dammages are to be recovered ; for at the Common Law neither shall 22 H. 6. 27. any but the Plaintiff recover dammages , Br. Costs 29 nor dammages lie but in personal and mixt actions , nor in real , as Dower , writs of Entry , Sur Disseisin , Ayel , Cosinage , &c. For in them dammages are given by special Statutes , which being but once suspended , or but against one , is gone for ever , and against all . As if the Creditor be made an Executor to his Debtor , 21 E. 4. 3. and once administer , or take to wife one of the Executors of his Debtor , 11 H. 4. 83. she having administred before , the action of Debt is gone for ever . 8 E. 4. 3. So if two be bound in an Obligation to a feme sole , and after she taketh one of the O●ligors to husband , 21 E. 4. 23. 16 H. 7. 4. the whole duty is extinct .

Executors bringing an action , must do it in all their names , as well of those that refuse administration , as of the rest . But an action may be brought only against those that do administer . 32 H. 6. 25.

Statutes .

9 ● . 3. c . 3. Stat. 1. In a writ of Debt brought against divers Executors , they shall have but one essoin before appearance , and one after appearance . He or they that do first appear in the Court at the grand distress , shall answer to the Plaintiff , and the Plaintiff ( if it pass for ) shall have judgment and execution of the goods of the Testator against all named in the writ as well as if they had all pleaded . In personal actions growing in respect of ● possession in Common Tenants in Common are in all respects as Iointenants ; for they must joyn in an action of Trespass , 22 H. 6. 12. 38 E. 3. 7. for a Trespass done upon their ground : in an action of account against the Bailiff of a wood , and if one of them die , the survivor shall have an action of the whole . So if the Tenant for life , 45 E. 3. 3. the reversion to two sisters commit waste , one sister dieth having issue , and the Tenant commit waste again , the issue and her aunt shall joyn in an action of waste , and the aunt sole recover treble dammages for the waste done in her sisters time .

In personal Praecipes dammages only shall be recovered where the thing cannot be had : 1 E. 5. 6. for dammages shall not be recovered in a writ of Detinu● , if the thing it self may be delivered , Br. Detin . 48. dammages I say , to the value of the thing demanded ; but dammages for the detaining shall .

Personal Praecipe quod reddats are Debt and Detinue .

Debt , when any thing is due upon a Contract .

50 E. 3. 16. 11 H. 7. 5. Which if it be money due from one to another in their own right , is in the Debt and Detinet , otherwise in the Detinet only . As in Debt , 50 E. 3. ibid . for the rent of Wheat , and Hens reserved upon a Lease for years , or of any Chattel , 19 H. 8. 8. 10 H. 7. 5. quick or dead , in Debt by or against an Executor for rent , upon a Lease of Land , though it be behind after the Testators death , Ibid . 15 El. Pl. 441. or upon a former recovery of debt or dammages against Executors , or for Arrearages found in an Action of Account brought by them , for all is in the right of the Testator . But against an Heir upon an Obligation , &c. of his Ancestor , it lieth in the Debet and Detinet , for the assets which he hath in his own right , maketh it his proper debt . So for an Abbot or Prior upon an Obligation of the Predecessor , 47 E. 3. 33. and though he be behind himself only , and against husband and wife upon a recovery of debt and dammages against the wife whilst she was sole . Ibid .

Statutes .

Magn . Chart . cap . 8. The pledges shall be free so long as the principal Debtor is sufficient . And answering the Debt , shall have the Lands and Rents of the principal till they be satisfied .

2 H. 2. cap . 12. No Warden of the Fleet shall suffer any Prisoner in Execution to go out of Prison by Mainprize , Bail , Baston , without making gree to the party , unless by Writ , or other Commandment of the King , upon pain to lose his Office , and the party to have a writ of Debt against him .

33 H. 6. cap . 10. Every Obligation taken by a Sheriff or his Ministers , by colour of their Office , of any person in their Ward by course of Law , shall be by the Name of their Office , and upon Condition that the Prisoners appear at the day and place mentioned in the Writs , Bills and Warrants taken in any other form , it shall be void .

32 H. 8. c . 37. The Executors or Administrators of him that hath any Rent or Fee-farm in Fee-tail , or for life , shall have an Action of Debt for the Arrearages in the Testators life time against the Tenants that should then have paid it , or may distrein ( and make avowry upon his matter ) in the Lands , so long as they remain in the possession of the said Tenant , or of any claiming only from him .

A husband seized of any such Estate in any Rent or Fee-farm in his wives right , shall ( after her death ) himself , his Executors or Administrators , have the same remedy for Arrearages due in her life .

So of him , his Executors and Administrators , that hath a Rent or Fee-farm during anothers life , and cestui qui vi , die , the same being unpaid .

Prerogative .

When any of the King's goods come into a subjects hands , 10 El. Pl. 321. whether by matter of Record or Enfait , so as he is accomptant for them , his Land all times after is chargeable for the same , and subject to the King's seizure , into whose hands soever it come , whether by descent , purchase , or otherwise .

Statutes .

34 H. 8. c . 2. The Land of the heirs of high Collectors of any Task , Subsidy , or Lone , and of the Receivers of Courts , shall b● chargeable therewith , as well that the heir hath by descent in Fee-●ail as in Fee-simple . And also that that is given him by the Collector or Receiver covenously , and thereupon the heir may have an action of debt against the Executors and Administrators of his Ancestor , wherein no Essoin , protection , or wager of Law is allowable ; and have Execution of the goods of the Ancestor , being in their hands at the time of the actions brought .

13 Eliz . c . 4. The Lands , Profits , and ●ereditaments of every Accomptant , or of him that receiveth money for the Queen , or her Successors , to be imployed to the use of the Queen , shall be extended ( in the nature of a Statute Staple ) for the payment of the Arrearages . Or the Queen , if he do not satisfie within six months after the Arrearage found , may sell his Land , and the party may have the surplusage to be delivered unto him by him that received the money upon the sale , without further warrant ; this sale to be of any Land whereof it is found by inquisition , that the Accomptant taketh the profit● ; which inquisition , if it be not true , the party grieved after traverse of the office , and that found for himself , shall have his Land again without any petition , livery , or ouster lemain . If any such buy La●d with the Queens Treasure , since the beginning of her Reign , and pay not the Arrearages as before , the Queen shall seize and retain the Land according to the rate that the party had it . This sale extendeth not to those Officers that have used to disburse the Arrearages about their charge , or offices which continue , except the Queen command present payment to be made , and then they shall have six months as before .

This Statute extendeth not to the Accomptants , whose yearly Rent , or whole Receipt from the beginning , exceedeth not CCC l. nor to Sheriffs , Escheators , Bailiffs of Liberties . Also the Sureties shall be ratable according to their abilities , charged for the surplusage only which remains not satisfied by such sale of the Lands of such Officers .

39 Eliz . c . 7. The former Statute of 13 Eliz . shall extend to sales to be made after the death of the Accomptant or Debtor , and to an Accompt made , or Debt known within eight years after his death .

And none shall be taken a Debtor but such Officers and Accomptants ( in this ●ct mentioned ) as upon their Accompts finished ( all reasonable Petitions being allowed ) shall remain Debtor upon the foot of the Accompt .

After one year after the Accompt made or known ( all reasonable Petitions allowed ) the Queen may by her Letters Patents sell so much as shall suffice 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 intent of 13 Eliz . the overplus , if any be , shall be redelivered without Petition or Fee . Every such sale shall be as good as if the party himself had made it for money , or other valuable consideration by bargain and sale , deed enrolled , feoffment , or recovery with voucher , and shall barr the party and his heirs , and all claiming under him , after he shall be debtor or person accomptable , and all whom he might have barred by any recovery , and all whose Lands are to be sold by the intent of 13 El. and shall be good against the Queen and her Successors , and all claiming under them for any charge or incumbrance to the Queen or her Successors by the party .

Provided , it shall not avoid any Lease by the Queen in other sort than it should at the Common Law , if the Queen w●re satisfied .

This Act and 13 Eliz . shall extend to under Collectors of Tenths and Subsidies of the Clergy , shall not impeach any assurance made before this Parliament , bona fide , nor any Lease of 21 years , or three lives , whereupon so much yearly Rent shall be reserved yearly paiable , as hath been within 21 years before , nor customary Estates made according to the custome .

And of this nature is a writ of annuity , which lieth for him that hath an annuity in Fee for life , F.N.B. 152. a. F.N.B. 152. b . or though it be but for years , be it money or other things , as clothes , bread , &c. and is in the debet for them all : that is to say , F.N.B. 152. a. for any other thing as well as for money , not in the detinet contrary to an action of Debt , Old. N. B. 62. Old N. B. 65. Detinue , when any thing is with-holden , which is called De catallis reddendis : if it be for writings , it is called De chartis reddendis .

CHAP. XIII . Of an Action of Account , and an Action of Covenant .

PErsonal Praecipes quod faciat are an action of Account , and an action of Covenant .

An action of accompt which is for an an accompt to be made : As if one be made a Bailiff of a Mannor , F.N.B. 116. p. &c. then it is against him as Bailiff ; if Receiver of his Rents , Debts , &c. then as Receiver : if both Bailiff and Receiver , then as Bailiff and Receiver .

Statutes .

Marlb . c . 23. Attachment given in an Action of Accompt against Bailiffs that withdraw themselves , and have no Lands nor Tenements to be distreined by .

Westm . 2. c . 11. He to whom the Accompt is to be made , may assign Audition to take it , who may immediately commit to the next Goal the Accomptant ( being found in Arrearages ) till he fully satisfie : whereupon the Accomptant finding himself grieved , may bring the matter by a Scire facias before the Barons of the Exchequer .

Prerogative .

The King may have it against Executors , and so can no other man . Lit . 118.

An action of covenant which is for a covenant ; that is to say , an agreement by Deed to be holden .

CHAP. XIV . Of Writs where the Peace is not broken .

PErsonal , Si fecerit te securums , are of things done without force , or where force is coupled with it .

Of those without force , some go not so far as breach of the Peace ; others do br●ak it .

Those that break not the Peace are these that follow .

Rationabili part● bonorum , for the Wife and Children of one deceased to have their part of the goods .

Valore maritagij for gardein in Knights service , when the heir at full age refuseth to satisfie him for his marriage : F.N.B. 140. f . And therefore there in the writ are no words of the heirs intrusion into the Land .

A ●rit of forfeiture of marriage is to recover the double value against such an heir marrying himself within age , F.N.B. 141. g . without the Lords assent , and at full age putting out the Lord .

Entrusion of ward , when the heir of Land by Knights service entreth , and putteth out the Lord , whether during h●● non-age , or after his full age , if the Heir both intrude , and deny the value of the Land also , then this writ of Intrusion of Ward may be brought for both .

F. N.B. 140. Ejectione custodiae for any Gardein by Knights service or Soccage , against ● stranger , ejecting him of the Land or body of the Heir , or both .

Quare ejecit infra terminum for Lessee f●● years , F.N.B. 197. against the Feoffee in fee , or for life of his Lessor ; for in such a case an Ejectione firme lieth not against the Feoffee or Lessee for life , because he is not the person that doth oust him , but his Feoffo● and therefore was this writ devised . A●● here the term it self shall be recovered , if ●redge● be not past , as in an Ejectione firmae th●redge● cometh after .

So is the Law now adjudged . Trespass upon the case of things n●redge● against the Peace ; as Assumpsits for ●redge● assumption to be performed , and such like and this lieth not against Executors .

38 H. 6. 9. Here , and in all other actions of Tre●pass upon the Case , the writ must comprehend all the matter of substance , a●redge● which is traversable as clearly as th●redge● count , unless it be the day , quantity o●redge● the Land , or such like .

CHAP. XV . Of Trespasses upon the Case , against the peace , deceit , and conspiracy .

THe other that break the Peace , but not vi , are called Trespasses against the peace .

And of this kind specially are an action of Deceit and Conspiracy in the nature of such a Trespass . An action of deceit is upon any deceit committed , 22 H. 6. 47. where if it be upon a Non-summons in a plea of Land , whereby he loseth the Land by default , or such like , it must be brought during the life of the Summoners , but nor when all the Summoners and Veighors be dead .

In a writ of deceit the Plaintiff shall recover all that he hath lost . 33 H. 6. 10. As if it be brought upon a Recovery in a Quare Impedit , &c. then dammages : If in a Formedon , then the Land only , but no dammages , for he lost none in the Formedon before .

Conspiracy in the nature of a Trespass is upon conspiring by many to prejudice a man wrongfully . F.N. B. 1●6 . As if men conspire to endict one because ●e arrested not a Felon that passed by the Town of M. And thereby they cause him to be indicted & amerced in the Leet of R. and F. and to be taken and imprisoned for this Amerciament , till he be thereof acquitted in the Leet . Or if men affirm 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 endicted for hunting in a Park , whereby he is taken and imprisoned , and put to expences , till he have acquitted himself of this Trespass .

CHAP. XVI . Of Trespass whereof Parco fracto , Rescous , and Ejectione firme .

SVch are those without force ; coupled with force is an action of Trespass , for a Trespass done , whether in Good● , or upon his Land ; and so if it be of a bodily trespass , as Battery , &c. but in maim and rape it is called an Appeal . F. N. B. 239. d . F.N.B. 85. f . 86. a. An action of Trespass brought in a Court Baron , whether by Plaint in the Court of a Mannor , Hundred , or County Court , or by writ in the County Court , must not suppose it to be done by force and arms ; F.N.B. 239. d . for then a Supersedeas lieth , shewing that a plea of Trespass , quare vi & armis , shall not be holden in a lower Court than before the King , or other Justices by his Commandment . And therefore no Capias lieth there , 3 H. 6. 54. either in Process or Execution , but in Courts of Record only .

Statutes .

Marlb . cap . 38. A writ of Trespass is given to the Successors ( in Religious Houses ) for goods taken away from the Predecessor , whether he commenced Action in his life , and died without Judgment , or though he commenced no Action .

And likewise to recover their own Seisin against Intruders in time of Vacation , wherein dammages are also given .

Marlb . cap . 4. If the Lord distrein for his services when none are due , yet he shall not be punished by fine and ransome , but only be amerced .

Westm . 1. cap . 20. Trespassors in Parks and Ponds attainted at the Suit of the party , besides making large amends according to the Trespass and Fine , at the King's pleasure , shall have three years Imprisonment , and find good surety not to commit the like Trespass . And if he cannot find surety , he shall abjure the Realm . Being a Fugitive , and having no Land nor Tenement , whereby to be justified , he shall be proclaimed from County to County , and if he come not thereupon outlawed , if none do sue within a year and a day , the King shall have the Suit .

5 R. 2. cap . 7. None shall make entry into Lands or Tenements , but where entry is given by Law . And in such case not with strong hand , nor multitude of people , but in peaceable manner .

He that is convict of the contrary shall be imprisoned , and thereof ransomed at the King's will .

15. Ric . 2. c . 2. At all times that such forcible entries be made , and complaint thereof cometh to any Justice of Peace , he shall take sufficient power of the County , and go to the place , and if he find any that hold such place forcibly , after such entry made , they shall be taken and put into the next Goal , there to abide , convict by the Record of the same Justice , till they have made fine and ransome to the King .

8 H. 6. c 9. The like for them that make such forcible entry into Lands , or other possessions , or them hold forcibly .

And whether the parties be present or voided before the Justices coming , yet he shall inquire of the matter by the people of the same County in some convenient place , and shall cause the Tenements so entred or holden to be reseised , and restore the party ( so put out ) into full possession .

The party put out or disseised in this manner , shall recover treble dammages against the disseisor , or any feoffee , coming in by fraud .

31 Eliz . c . 11. No restitution upon an indictment of forcible entry , or holding with force , shall be good , where the party hath been in quiet possession three whole years next before the indictment , and his estate not ended .

Merton cap . 6. A Lay-man ravishing , or marrying a Ward within fourteen years of age , shall be imprisoned , besides loss of the value of the marriage .

Westm . 2. c . 35. One that hath no right , taking away the Ward , shall be imprisoned two years , though he restore the Child not married , or satisfie for his marriage . Not restoring him unmarrried , or not be able to satisfie for his marriage ( in case he have married him ) he shall abjure the Realm , or have perpetual imprisonment . The form of the writ , both when the heir is in the same County , or carried into another , is there s●t down .

If the Defendant there come not upon the distress , he shall be outlawed .

The Plea shall proceed , though the heir die , if the Plaintiff die before the plea determined , &c. a resummons shall be against his Executors or Heirs ( if the Executors have no Assets ) to satisfie the value of the marriage .

Special actions of Trespass are these that follow . F. N.B. 100.

De' parco fracto for taking a distress of beasts , & other things distrained for dammage fesant , or for rent or services behind , not of the Pownd , whether common Pownd , or other place that is a lawful Pownd , and whether he that so brake the Pownd be proprietor of the Beasts , or no . And this lieth 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 Soil , but of him that did distrein , and the other shall have an Action of Trespass , Quare clausum fregit .

F.N.B. 101. c . F.N.B. 102. f . Rescous for taking such a distress away before it be impownded . And here the party must needs have possession of the Beasts or things so recussed ; for if he be disturbed before he do ●ttach or distrein them , a writ of Rescous lieth not , but an Action upon the Case .

F.N.B. 220. h . F.N.B. 220. f . Ejectione firme when Lessee for years of Land is ousted , be it by the Lessor , or a stranger , where the term it self shall be recovered , if it be not past , as in a Quare ej●●it infra terminum before .

CHAP. XVII . Of Appeals that touch Life .

THese are the Common Pleas , an appeal that concerneth Life is the parties private action , Lit . 116. 8 El. Pl. 476. 33 H. 8. Dy . 50. 33 H. 8. D. Stamf . 50. prosecuting also for the Crown in respect of a Felony , be it petty Treason , or other Felony whatsoever . But for high Treason no Appeal lieth .

Appeals of the death of a man are given to the Heir of the party slain , for the husband shall not have an Appeal of the death of his wife , but her son . 7 E. 4. 15. So the poisne brother of the whole blood shall have the Appeal , and not the elder brother of half blood ; but the elder of the whole blood shall .

Statutes .

Glocest . cap . 9. An Appeal of the death of a man must be brought within the year .

Magna chart . cap . 33. A woman shall have none but only of the death of her husband .

2 E. 6. c . 24. Endictment or Appeal good in the County where he dies , though the poisoning or stroke were in another .

3 H. 7. cap . 1. One acquitted upon an Endictment of Murder or Manslaughter , or as Accessory , shall go at large till the year and day be passed , within which time no Appeal may be brought ( if no Clergy be had before ) and all advantages therein saved , as if the acquittal had not been .

So against the Accessories , though the Principal were attainted at such suit of the King .

CHAP. XVIII . Of writs of right Patent .

Old N. B. 12. A writ of right Patent . F.N.B. 85. Of Trespass . F.N.B. 2. f . of a writ of right Patent . F.N.B. 86. Of Trespass Vi●contiel . THus far of Original Writs ; Commissional are those which are not returnable , but determinable before the parties to whom they are directed ; and are but in effect commissionary , or meer Commissions . Of the first sort are those that give authority to a Court Baron , to hold plea where the Suitors are the Iudges , not the Sheriff or Steward . These are a writ of right Patent , or a Justicies . In both which the same course is holden , as in those that went before , 6 E. 4. 3. 35 H. 6. 5. viz. pledges as before , count as in them , and the same both process that is in the writs original of that nature . As in a writ of right Patent , a Praecipe in the nature of a grand Cape and p●tit cape . Trial by battel , or grand Assise , &c. in Justice or Viccontiel , writs of Debt , Accompt , &c. Summons of Trespass , &c. Attachment , but not a Capias in any case , for that lieth only in a Court of Record . Also many Actions of one nature may be joyned in one Justicies , with several Praecipes . So in Plaints , Bills , &c.

A writ of right Patent is a writ for the F. N.B. 1. b meer right of Tenements holden of a common perfon , as Land , F.N.B. 30. Avowson , or Rent 14 E. 3. dr . 31. service : but not Ibid . Rent-charge , Rent-seck , F.N.B. 1. b . Old N. B. 1. F.N.B. 3. c . & 8. a. b . F.N.B. 2. f . or a Common to be brought to the Lords Court of that Mannor . But if he hold no Court , or otherwise yield his Court to the King for that time , at the prayer either of the Tenant or Demandant , then it may be in the King's Court with this Clause , Quia B. capitalis dominus nobis inde remisit curiam .

And this must shew by what service the Land is holden . F.N.B. 1. i . F.N.B. 4. Old N. B. 10. F.N.B. 9. b . Old N . B 10. Ibid . 8 El. F.N. B. 9. b . It lieth also where the Ancestor dieth seized . F.N.B. 9. b . Old N B. 10. F . N.B 9. g . The writ remaineth always with the party himself . So doth no other writ original . If one privy in blood not past the third degree , enter after the dea●h of the Ancestor that died in demesne not seized . As where a man letteth for life , and dieth in the life of the Lessee , having many Coheirs , and after that Lessee for life dieth , and one of the Coparceners entreth into all , or where the Ancestor is disseised and dieth , and one Coparcener entreth into all , there such a writ of right Patent , for the other Coparcener or for the elder brother , if the younger enter into all , is called a writ of right De rationabili parte terrae . And therein the grand Assise nor Battel shall not be joined for the privity of the blood ; Old N. B. 10. F.N.B. 9. g . F.N.B. 9. n . F . N B. 197. c . d 7 H 6. 8. F.N.B. 6. nor view nor voucher lieth : neither is No●-tenure any plea , for it is to try the privi●y of blood , as a Nuper obiit that went before .

A woman that hath received part of her Dower shall have a writ of right of Dowry Patent for the remnant , whereof she is to be endowed , wherein the same things are to be observed that were i● writ of Dower , unde nihil habet before .

CHAP. XIX . Of Justices .

A Justicies is a Writ that giveth the County Court power to hold plea ; and therefore is called a Vicontiel writ : Of this sort are ,

F.N.B. 184. b . 1. An assise of petty Nusance is when a Mill , or such like , is levied to ones Nusance .

All of them are comprehended in these verses : rica Ca 〈◇〉 gulium ges lendinum Fab , fur , porta domus , vir , gur , mo , murus ovile : Et pons ; traduntur haec vietcomitibus .

F.N.B. 148. 2. For admeasurement of things , as admeasurement of Dower by the heir , when his gardein or himself endowed the wife in his nonage of more than she ought . But by this writ she shall have no new land assigned to her in Dower . Ibid . But only there shall be taken from her so much of the land as amounteth above the third part of the land whereof she ought to be endowed .

F.N.B. 125. b . & d . Admeasurement of Pasture by a commoner whom another commoner wrongeth by putting in more beasts into the Common than he should , whether the Common be appendant or appurtenant , so it be to a certain number , wherein all the Commoners , as well those that have not surcharged , as those that have , and also the Plaintiff himself shall be admeasured . But it lieth not for the Lord against his Tenants surcharging , for he may distrein the surplusage for dammage feasant . And as some say , may have an Assise ; for it is a disturbance of the profit of his soil . Nor for the Tenant against his Lord surcharging , but he shall have an assise of common .

Statutes .

Westm . 2. cap . 7. A gardein may have a writ of admeasurement of Dower , and the Heir also at full age , if the Gardein follow it faintly .

In writs of Admeasurement both of Dower and Pasture after the great distress Proclamation shall be made two County days , whereupon if the party come , the plea shall proceed : if not , Admeasurement shall be made in his default .

Westm 2. cap . 8. When the same party after admeasurement another time surchargeth , a writ to enquire if that second surcharge shall go out either judicial , if the former Admeasurement were before the Justices , or otherwise original out of the Chancery . And the beasts surcharging the pasture , or their value , shall be answered to the King .

F.N.B. 77. a. 3. A N●tivo habendo for the Lord that hath an Inheritance in any villein , b●t not an estate for life or years ; F.N.B. 77. b . for this writ is in his nature a writ of right to recove● the inheritance of his villein , when his villein departeth away from him . F. N. B. 77. c . And here if the defendant plead that he is frank , the Sheriff cannot proceed .

Old N. B. 73. 4. Rationalibus divisis , for that Lord whose Land or Waste hath by little and little been encroached upon within time of memory until now , by a Lord whose Seigniory adjoyneth in another ville , against the Lord so encroaching . Ibid . 73. & 74 But if the encroachment be at once , whether now or before time , there an Assise of Novel Disseisin lieth , and not this writ .

5. A homine replegiando , for one imprisoned , F.N.B. 66. e . F. N B. 66. f . F.N.B. 67. or in prison detained where he should not . As being bailable , or claimed as a villein , or in ward , where indeed he is frank out of ward .

F.N.B. 68. d . 4 H. 6. 30. 6. A Replevin for goods or chattels distrained , which according to the nature of the plea ministred by the parties , groweth to be either a real or personal plea , as upon property claimed , then is it personal ; if the Defendant avow the taking for Services or Rent behind , &c. then it becometh real , &c. and as strong as a Praecipe quod r●dda● , inasmuch as he is to have a return . And therefore he shall in that case have aid before any plea pleaded as in a Praecipe quod reddat . F.N.B. 70. a. b And this may be both by writ and plaint in any Court-baron , F.N. B. 70. b . as well as in the County Court . And being by plaint , though in the County Court , it s●●ll not proceed if any thing touching the ●●te-hold come in question , as if the Defendant avowing for dammage feasant , the Plaintiff justifieth by reason of Common of Pasture .

Vpon the pluries not served by the Sheriff , his power is determined , 2 H. 7 6. and the parties shall plead in Bank .

Statutes .

Marlb . cap . 21. The Sheriff may replevin beasts not only without , but within a liberty also , if the Bailiff of the liberty will not .

Westm . 2. cap . 2. The Sheriff or Bailiff shall take pledges of the Plaintiff , not only de prosequendo before they make deliverance of the Beasts , but of returning of the Beasts , if a return be adjudged , he that taketh pledge otherwise shall answer the price of the Beasts . Upon a return awarded to the Defendant , the writ De returno habendo shall have this clause ( that the Sheriff shall not deliver them without writ , wherein mention shall be made of the judgment . ) And thereupon the Plaintiff ( if he will ) may have a judicial writ to the Sheriff to deliver him the Beasts .

Upon a return awarded , after which if a return another time be awarded , there shall be no more Replevins . And if upon his default the second time , or otherwise the Defendant be adjudged to have a new ●●turn , the distress shall remain i● reple●redge●ble .

1 and 2 Ph. and Ma. cap . 12. Ever●redge● Sheriff of a Shire ( being no City ) shall a●redge● his first County day , 4 Deputies to make Replevins . or within 2 mo●redge● after receit of his Patent , proclaim in ●redge● Shire town four Deputies at the le●redge● dwelling not past 12 miles one from another , which in his name shall make R●redge●plevins as the Sheriff might do himself . F . N.B 151 : b . Ibid . 123. a. Ibid . 123. f . Ibid . 135. a. 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 Sheriff may determine them by Enquest , according to the course of the Common Law . F.N.B. 110. b .

7 Many of the actions that went b●redge●fore , both for real things to be done , ●redge● Consuetudinibus & servitiis ; Sectae ad mol●redge●dinum ; Quod perm●ttat ; Mesne-do●● Unde nihil habet . And also personal Ac●redge●ons , as annuity , debt , detinue , acco●redge● covert , trespass , to what sum soever , ●redge● as well be brought in the County by I●stices , as to be returnable in the Comm●redge● place .

CHAP. XX . Of meer Commissions .

MEer Commissions are these th●redge● follow : being all of them to be ditt●redge●cted to choice persons , such as it sh●redge● please the King .

Oyer and Terminer to hear a●redge● determine upon some heynous trespa●redge● committed ; Ibid . as rebellious Assemblies , I●surrections , and such like And these are called Justices of Oyer and Terminer .

Statutes .

2 E. 3. cap . 3. It shall be granted only to Justices of the one Bench or other , or to Justices 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 Justices together with them , and may be directed to the Justices themselves to admit them , or to the parties that shall be so associate to signifie their association . F.N.B. 111. b . That F.N.B. 111. d F.N.B. 185. a. in an assise . to the party is patent : The F.N.B. 111. d other to the Justices to admit him is always close .

Si non omnes is a writ for the rest to proceed , although the other come not . To be directed as well to the party to be associate as to the other Justices . Patent F.N. B. 186. ab . F.N. B. 111. a. to the party , close F.N.B. 221. to the Justices .

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 Mortmain , or to alien Lands holden of the King in chief ; or to grant liberties to any City , or such like .

Perambulatione facienda to enquire of the bounds of two Seigniories or Towns , Old N. B. 74. ●here an encrochment by little and little ●s supposed to have been made . And this must be by the mutual assent of both the Lords . But if such encroachment were at once , whether now or heretofore , a● Assise of Novel Disseisin lieth , and not this writ .

CHAP. XXI . Of Plaints .

SO far of writs ; it followeth to speak of Plaints and Bills : both being i● such Courts as hold plea without original writ .

A plaint is in matters that concer● Common Pleas . 22 Ass. pl. 64. Br. Jur . 98. 14 H. 8. 15. Ibid .

A plaint of Trespass brought in a Court Baron , whether Mannor , Hundred , or County Court , shall not proc●●● if the Free-hold come in question : but a Suit by writ in the County Court may . Therefore in such case upon a plaint in County Court , the party hath no remedy , but a writ of Trespass vicontiel , and thereby the Sheriff may determine the Issue , though the Free-hold come in debate . But that is no remedy in other Court Barons .

CHAP. XXII . Of Bills .

A Bill is in Pleas of the Crown . Stamf . 64. As an appeal of Felony , Maim , Rape , Stamf . 55. a. Stamf . 64. &c. may be by Bill befo●e any one Coroner of the Shire , as well as by writ original , finding first sureties to the Sheriff .

One whose attendance is necessary in any Court , 6 E. 4. 3. as the Officers and Attornies there , shall sue and be sued in form of plaint without writ original , which is called a Bill priviledge . But albeit the Cook or Butler of a Judge , or other Officer of a Court shall have their priviledge if they be sued elswhere , yet a Bill lieth not against them ; but against the Officers and Attornies it doth , for they are Members of the Court , and their Attendance necessary . And they shall be fore-judged of their Office , if being demanded to do them , they make default . But an Attorney in the King's shall not be sued by Bill ; for no Attorney is there of Record , nor his presence necessary : otherwise it is in the Common Place .

CHAP. XXIII . Of a Quo warranto .

Prerogative .

10 H. 7. 14. THe King hath a special means of Suit for trying of the right of Franchise usurped upon him , called a Quo warranto ; and is to be brought before the Iustices of Oyer . Therefore here allowance of a Franchise , before them , bindeth the King . Otherwise it is upon a Suit in the Common Place .

Statutes .

Quo warranto in Justices Circuits . 18 E. 1. A Statute of Quo warra●●● Pleas of Quo warranto from henceforth shall be pleaded and determined in the Circuits of the Justices .

18 E. 2. Stat. of Quo warranto . A publick proclamari fac● , shall be awarded to those that claim liberties , to know by what warrant they claim them , wherein they shall have a warning of forty days . The party that claimeth liberties being before the King , it shall not be in default before any Justices of their Circuits . And being impleaded before one or two Justices , the same Justice before whom he is impleaded , shall save him harmless before the other . If he come not at the day , the liberties shall be taken in the King's hands in name of a distress , and when they appear , be replevied upon their demand . In which replevins they shall answer immediately .

If their Ancestors died seized , then the King shall have a summons for them to appear before the King , or his Justices of Assise ; at which day if they come not , nor be assoyned before the King , and the King do tarry longer in the same Shire , such order shall be taken as in the circuits of the Justices . And if the King depart from the same Shire , they shall be ●●journed unto short days , and have reasonable delays according to the discretion of the Justices , as it is used in personal Actions .

CHAP. XXIV . Of Offices for the King .

THese are the Suits that every one may ●●ve . Enquiry for the King is , when matter for the King is found by a Iury called an Enquest of Office , whether the Enquiry be by Officers themselves , as Sheriffs , Escheators , ●oroners , &c. virtute officii , or virtute brevis , or Commissions to them directed . And here the just number of twelve is not of necessity requisite , but may be sometimns more or less . F. N. B. 170. c .

21 E. 3. 2. An Enquiry is an office or presentment . An office which findeth matter to entitle 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 evidence .

3 H. 7. 3. If such an office be found for heriditaments , and the King entitled by matter en fait , that is to say , by no other Record but that only ; as if the office find that J. S. the Kings Tenant died seized , the party may either traverse , to say J. S. was not seized , or confess and avoid it by saying , that himself was the King's Tenant , and disseised by J.S. and so J. S. died seized , being 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 J. S. was attainted of Treason , and seized of certain Lands , there only a Petition lieth to the King , because this is a double matter of Record , and therefore neither can the party traverse it by denying J. S. to be so seized , nor have his monstrans de droit to shew that J. S. did disseize him , &c. or that he enfeoffed J. S. upon condition , and that J. S. brake the condition before the attainder . All this is to be understood so long as the Record of the attainder continueth in his force . But the party may traverse the attainder well enough , 4 H. 7.7 . as to say , nul ti●l attainder , i . that there is no such attainder , and upon that being found for him , he shall have the land , without being driven to his petition , otherwise not ; and the reason is , because the office entitling the King by a matter of Record , this title cannot be avoided , but by as high a matter , and not by the plea or allegation of the party ; upon as high a matter of Record to avoid the office , as the office it self , a man may traverse it , though the King be intitled by double matter of record . As being found by office that J.S. was attainted of Treason by Parliament , and his Lands forfeit , and that he was seized of B. acre , whereby the King seizeth it . Now if another Act of Parliament restore the heir to all the Lands whereof the ancestor was seized , & adnul the ancestors attainder , his heir shall have this by way of plea , without petition .

If the office be for personal goods , 4 E. 4. 24. the party may always have a traverse or plea any matter unto it , and so have his goods again , unless the escheator have accompted for them . Ibid . 34 H. 6. 5. 4 E. 4. ibid . And that though the offer find the King's title to be by matter of record : as that J. S. was attainted of Felony or Treason , or outlawed in Debt or Trespass , and was at the time possessed of a horse , or of such and such goods , wherein in truth the property was unto a stranger ; that stranger may have a Traverse . The King upon 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 escheat of land found by office : 14. ● . 7. 23 , 25 : but an office finding that the King's tenant hath ceased , Stamf . Prer . 54 or his Tenant for life committed waste , vesteth no possession in the King , for his entry is not lawful , but h● i● driven to sue a Scire facia● . So if an office entitling the King to thing● not manu●● that is to say , whereof no profit is to be taken forthwith , until they fall as a Rent-common , &c. this v●steth no possession till the day . Also he shall be answered of all the mean profits from the time of his title . 14 E. 3. 11. 11 H. 4. 5. As upon an alienation in Mortmain found by office , from the time of this alienation appearing of record , upon the King's Letters Patents adnulled for insufficiency from the very time of the grant .

4 E. 4. 24. 2 H. 4. 5. An Escheator here may find office● in officie , as well as virtute brevi● , or commissionis . But not of Outlawry of Felony , or suck high matter of record without warrant● paramount , and certification by writ of Record , Those virtut● bre●●is , or commissionis are re●●nable in the Chancery . The othe● properly in the Exchequer ; but may also be returned into the Chancery .

Statutes .

36 E. 3. cap . 13. Stat. 1. No Escheator shall take Enquests of Office but indented between the Jurors and him , else they are void .

38. H. 8. ca● . 22. Se● virtute officii only to find an office of Lands holden of the King of v l. value or above , pain . v l.

8 H. 6. c . 16. Take Enquests but of people impannelled by the Sheriff , and those Enquests must be returned within a month after the taking . Pain 20 l. So of Commissioners .

25 H. 6. cap . 17. Take enquest virtute brevis , but within a month after delivery of the writ , his fees are set down .

1 H. 8. c . 8. Made perpetual . 3 H. 8. c . 2. Sit unless he have Lands , &c. to the clear yearly value of 40 Marks . Pain 20 l.

Delay to take the Verdict when the Jury offer it , Pain C l. So of Commissioners .

Be Escheator in three years again after that year ended .

34. E. 3. cap . 13. Stat. i . A Traverse given to the party whose Lands are seized by office for alienation without licence , or nonage of the heir in Ward , it shall be sent to the Kings Bench to be tried .

36 E. 3. cap . 13. Stat. 1. Upon a Traverse or Monstrans de droit , the Chancellor may let him ( that tendreth it ) the Lands holden to farm , finding surety to do no waste .

8 H. 6. cap . 16. They shall not be let to farm till the Enquests returned , nor in a month after , within which time the party grieved may have the benefit of the former Statute .

All Letters Patents within the month shall be void .

18 H 6. cap . 6. All Letters Patents made of Lands or Tenements before office found or returned shall be void .

1 H. 8. cap . 16. The party shall have three months liberty after the office returned to tender his Traverse .

2 E. 6. c . 8. Where an office is found for the King , he that hath interest for years , or by Copy in the bond , or any Rent , Common , Office , Fee , or any Profits of whatsoever Esta●● out of the Land , shall have them , though they be not found in the Office in such sort as they should , if no office had been at all . When Land it found holden of the King immediately , and that it should descend or come to an heir within age , which is , or ought to be in the King's Ward , that heir within age may have a Traverse .

The party grieved may have a Traverse immediately or after at his pleasure , when one is found heir , where another indeed is heir , or when one is found heir in one County , & another found heir to the same person in another County , or when one untruly is found lunatick , ideot , or dead .

The party grieved may have traverse or Monstrans de droit ( and shall not be driven to petition ) when it is untruly found that one attainted of Treason , Felony , or pramunire is seized of lands , whereunto another hath just title of an Estate of Freehold . And although the King be intitled in such lands by double matter of record .

Upon every such traverse a Scire facias shall go out as in traverses or petitions before , and the defendant therein have the same advantage that they had in a Scire facias in a petition before .

In every traverse pursued by virtue of this act where by the Common Law the party were driven to petition , two writs of search shall be granted . After judgment upon a traverse sued by virtue of this act , if it appear by matter of record that the King hath a former title , the same shall be saved unto him .

Artic . super chart . c . 19. When the Escheator or Sheriff seize land into the King's hand without cause : upon ousting of the King's hands , the party shall have the mesne issues restored to him .

20 E. stat . De Escheatoribus . If the Escheator by writ out of the Chancery seize Land into the King's hand , and after upon inquisition no title is for the King to have the custody ; and ouster le main shall be awarded for the party out of the Chancery .

Provided , that if any thing afterwards may be found in the Chancery , Exchequer , or Kings Bench for the King , a Scire facias shall go our against the party . And if the King have right , it shall be answered of all the issues from the time of the Escheators first seising of the Land .

23 H. 6. c . 17. In a Scire facias upon a Traverse against any Patentee no protection allowable . 14 E 4. 5. 6 H. 7. 15. Vpon an office found virtute officij , whereby the King is intituled to ones wardship , the heir shall never have livery , Stanf . prer . 52 that is to say , the Land delivered out of the King's hands . But upon a perfect office virtute brevis , F.N.B. 235. c . or commissionis , if it be a special writ or commission , not a general one , to enquire of all wards , he may . Therefore here the heir is allowed these Commissions following , or Writs in the nature of such Commissions , viz. First for the finding of an office for the King , then for the having of the Land out of the King's hand . F.N.B. 252. Those for the finding of an office are , 1. A Diem clausit extremum , Mandamus , & devenerunt , to inquire what lands holden of the King , and what of other , the Ancestor was seized of the day of his death , the value , the day of his death , who is the next heir , 14 E. 4. 6. F.N.B. 253. c . and of what age .

The Diem clausit extremum is to be sued within the year after his death .

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 Inheritance cannot descend , if they offer speedily after Diem clausit extremum in the Chancery to render till the Infants age , as other will without fraud .

The Mandamus after the year . Stamf . 52. F.N.B. 253. c . F.N.B. 253. b . Stamf . ibid . Fitz . ibid . 4 E. 4. 24. And here it must further be inquired who took the profits . The Devenarunt is when the Auncestor , died in ward to the King . 2. A Qua plura , Melius inquirendum , & Datum est nobis intelligi , upon defect in offices found by virtue of such writs or commissions , but these shall never go out upon an office found virtute officii . F.N.B. 255. Quae plura upon levying out of any land in those offices .

Melius inquirendum upon any other defect in the office , as if the office were insufficient or uncertain , E. 4. 24. F.N.B. 255. or the Land of greater value than is found in the office ; or held by other services , or the Tenant seized of other estate .

Datum est nobis intelligi , 2 H. 7. 2. upon an office ●●ding lands to be holden of any other person , when there is a record to prove that is holden of the King , but this writ shall not be upon a bare surmise .

Those for having the Land out of the King's hand are an Aetate probando , F.N.B. 257. and a writ of Livery . Aetate probanda is to enquire , whether he be of full age , or not , before which time he is not to have Livery . A writ of Livery is after a perfect office ; Stamf . prer . 52 ( for no livery shall be upon an insufficient office ) finding a tenure in chief whether by Knights service or soccage ; F. N.B. & whether the heir then be within age , or of full age But he that holdeth of the K. by Knights service , but not in Capite , 32 H. 8. Br. livery & ouster le main 62. shall not sue livery . But because none can enter upon the King , the heir ( if he were within age ) when he cometh to his full age , shall have an ouster le main , to have all the Lands delivered to him at once by the King , 44 E. 3. 25. which is called a livery , for if this be sued , and no mention made of an Avowson , all shall be reseized , and the King answered of all the mesne issues . 2 H. 7. 12. F.N.B. 156. And a livery must be entire , and not by parcels . The manner thereof is this , when the heir in the Kings Ward is of full age , he shall have a writ out of the Chancery to the keeper of the Privy Seal , testifying that he is of full age , and hereupon he shall have a Privy Seal to the Chamberlain of the King to receive his homage . And when he hath received his homage , he shall have a writ from the Chamberlain to the Chancellor testifying that he hath received his homage , and thereupon he shall have a writ of livery .

Statutes .

28 E. 3. c . 4. The rents given to them that sue livery when the rent-day cometh , how soon soever it come after the livery .

32 H. 8. c . 46. The Court of wards erected to be a Court of Record , Officers appointed : a Master of Wards that shall keep the Seal , an Attorney , a Receiver , two Auditors , two Clerks , a Messenger , and an Usher .

All wards with their Land , &c. shall be in the ordering of the Court .

They may sell and grant the King wards , or their Lands during their minority , &c.

The same to pass by the King's Bill assigned , which shall be a sufficient warrant to the L. Chancellor for the great Seal .

They may ( without the King's Bill assigned ) make good sales of underwoods , and appoint timber for necessary reparations of the ward lands , and make Leaser during their minority , &c.

Widows and the fines for their marriage are in the survey of this Court .

So are Ideots and their Lands , and the Court may let and set their Lands .

The grantee of the custody of wardship of any of the King's wards shall sue forth his Patent within four months : next after the assignment of his Bill , else the Bill and effect thereof to be void .

Process shall be made out of this Court against wards intruding upon their lands before livery , or ouster le main under the Great Seal .

With many other matters concerning the authority of this Court , and the offices thereof .

33 H. 8. c . 22. The office of the M. of the livery united to the Court of Wards .

A Surveyor of the liveries added and appointed to be the second Officer .

A Clerk of the liveries also added .

All liveries suing shall be in the ordering of this Court .

None that hath land over the clear yearly value of 5 l. ( otherwise it is where the Land is under that value ) shall have livery before inquisition or office , by the Kin● Writ or Commission , which shall not pos● out of the Chancery or other Court , without a warrant directed to them out of the Court of Wards under their hand .

They shall set rates for liveries , and a●point days of payment , &c. and their Bil● for livery shall be a sufficient warrant ●o the Lord Chancellor .

A general livery may be sued where the yearly value of the land exceeds not 20 l. but such general livery shall not be without warrant from this Court . The Paten● for livery may be sued forth within three months next after the assignment of the Bill by the King or his Court .

Two being found heirs by one and the same title , 1 H. 7. 28. whether twinlings that are males , found heirs by one self-same office or divers men by several offices found heirs to the same Ancestor , and by the same title ( for if one office find that the K. gave land to A. and the heirs of his body , and that B. is his cosin and heir , and another office findeth that the gift was in general tail , and that four daughters are his heirs , there must be a traverse and no enter pleading , for they claimed not by one ancestor and title ) the King shall not make livery , 3 E. 4. 4. till by enterpleader the truth is discussed at his full age that was found heir first : for if A. of five years is found heir to the K. Tenant , and after by another office B. is found his heir , and of full age , B. hath no remedy till A. come of age , and then they must enterplead . And in every enterpleading , an office must be found for both . And if one be found heir of full age , and after another within age , the enterpleading shall not stay till the full age of the second , because the other was found heir first . Among Coparceners , Stamf . prer . 58. the King upon livery shall make partition . And that is for the King's benefit , because upon that partition every one shall have some part of the lands in chief . For if any should have for their portion only the lands holden of other men , then the King should lose his prerogative in those lands for ever , because they that have them when they shall die , hold no Lands of the King in Capite . And therefore in the writs of Livery there is a proviso , that every one shall have in her purpart , parcel of the Lands holden in chief .

CHAP. XXV . Of Presentments or Endictments .

A Presentment is an enquiry , finding some offence against the King , which is also called an Endictment . Therefore it is as it were the King's Action , whereupon the party shall be arreigned , or put to answer by the King : and tried by another Jury , which ( in case of Felony or Treason ) we call the Jury of Life and Death .

Every strong suspicion of such an offence , though it be in case of Felony , appearing of record , 3. E. 1. Endict . 31. hath the force of an indictment : as in an Action of Trespass of goods carried away , if the defendant plead not guilty , and be found guilty as a felon : in an appeal of murder , 9 E. 4. 10. &c. if the plaintiff after declaration be non suit . But so is not the Sheriffs return , 2 E 3. 28 : as where he returneth upon one an Escape of Felony , &c.

7 E. 3. 324. Without which the King can have no suit upon a wrong done , principally to another ; but done to himself he may .

For 12 H. 7. 18. Constables and Borsholders are Conservators of the Peace at the Common Law . preventing of certain of those offences , that is to say , trespasses to the body and felonies , and committing them that offend to prison , till they may be indicted , and so duly punished , as 22 E. 4. 35. to arrest him that maketh an affray , and send him to the next Goal , or upon reasonable cause ( as if it be night time , or there be that would rescous him , &c ) . keeping him in the stocks till he can safely bring him to the Goal ; 9 E. 4. 26. or to arrest him till he find surety by Obligation ; every hundred hath his Constable ; and every several tithing within the hundred hath his Borsholder . The conservator of peace in an hundred is called a Constable , or High Constable ; in a Tything , a Petty Constable , Borsholder , Headborough , Thirdborough , Borough-head , Tything-man , or chief pledg .

Statutes .

1 E. 3. cap . 16. Stat. 1. For the better keeping and maintaining of the Peace , the King will , that in every County good men lawful , which be not maintainers of ill , or Baretors in the County , shall be assigned to keep the Peace .

18 E. 3. cap . 2. Stat. 2. Two or three of the best in reputation in the Counties shall be 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 be assigned by the Kings Commission , to hear and determine Felonies and Trespasses done in the same Counties .

34 E. 3. cap . 1. In every County of England shall be assigned for the safe keeping of the Peace a Lord , and with him three or four of the most worthy men in the County with some learned in the Law , and they shall have power to distrein evil doers , rietors and barettors , and to pursue , arrest , take , and chastise them according to their trespass and offence , and to do them to be imprisoned , and duly punished according to the Law and Customs of the Realm , and according to that to them shall seem best by their discretions and good advisements , and also to inform themselves , and to enquire of all those that have been pillers and robbers in the parties beyond sea , and be now come again , 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 indictment , or by suspition , and to put them in prison , and to take of all them that be not of good fame ( wheresoever they shall be found ) sufficient surety and mainprise for their good a bearing towards the King , and towards his people , and to punish the other duly , to the intent that the people be not by such Riotors troubled and endamaged , nor the peace blemished , nor Merchants , nor other passing by the high ways of the Realm , disturbed , nor put in fear by the peril which might happen to them by such evil doers . And also to hear and determine at the Kings suits all manner of felonies and trespasses done in the same County , according to the Laws and Customs aforesaid .

13 Ric . 2. cap . 7. They must be sworn to keep and put in execution all the Statutes and Ordinances touching their Offices .

2 H. 5. ca. 4. Stat. 1. The Justices of Peace must make their Sessions four times by the year , that is to say , in the first week after the feast of St. Michael , in the first week after the Epiphany : In the first week after the clause of Easter , and in the first week after the translation of St. Thom . the Martyr ( which is the 7 Julii ) and more often if need be . And that the same Justices hold their Sessions throughout the whole Realm of England in the same weeks , every year from henceforth .

2 H. 8. cap . 5. Justices of Peace from henceforth to be made in the Counties of England , shall be made of the most sufficient persons dwelling in the same Counties , by the advice of the Chancellor , and of the Kings Council , without taking other persons dwelling in forreign Countries , to occupy such office , except the Lords , and the Justices now named , and to be named by the King and his Council . And except also the Kings High Stewards of the Lands and Seigniories of the Dutchy of Lancaster , in the North and South parts , for the time being .

18 H. 6. cap . 11. None shall be assigned Justice of Peace , if he have not Lands to the value of 20 l. by year . This extendeth not to Towns Corporate , Boroughs , &c. nor to persons learned in the Law .

1 Mar. cap . 8. No Sheriff shall exercise the office of a Justice of Peace by force of Commission , or otherwise , in the same County , during the time only that he exerciseth the office of the Sheriffwick .

9 E. 4. 26 Any man suspecting another of a Felony committed , or but 9 E. 4. ib . intended , as where one lieth in wait to rob the people that pass by , and draweth his sword upon one , willing him to deliver his purse , &c. may arrest him 20 E. 4. 6. so as thereupon he commit him to the Gaol , as 1 E , 4. 4. common voice and fame that he did the fact , or being present where a murder was done , and found with a sword drawn in his hand , or when a robbery was done , and found with some part of the goods , are just causes of suspicion . 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 aceessary ; and what is sufficient cause of suspition , and what not shall be tried by the Justices . But 9 E. 4. ib . neither can any man arrest one for a Trespass , unless it be the Constable , nor for a Felony , except 11 E. 4. ib . himself suspect the party ( though he doth it by the commandment of one that doth suspect him ) and that the same Felony be indeed committed .

As if it be for robbery , the self-same thing must be stoln ; 27 H. 8. 3. for to say , that divers Bieves were stoln , and because he suspected I. S. to have stoln six Bieves , he did arrest him , is not good , without alledging expresly that those six Bieves were stoln .

With indictments of Trespass , information upon penal Satutes ( such as inflict a pecuniary mulct or other penalty upon offenders ) have a near affinity . Concerning which informations , these Statutes following were made .

Statutes .

4 H. 7. cap . 20. Where a penal Statute giveth whole or part to whosoever will sue a covenous release or recovery ( except it be by action ) tryed upon the point of the Writ shall not prejudice him that will sue bona fide .

31 Eliz . cap . 5. All informations and indictments where the forfeiture is limited to the Queen only , must be brought within two years after the offence commited , when it is limited to the Queen , and any other that shall sue within one year , or ( in default thereof ) for the Queen within two years , except Statutes of Tillage . All brought after the time shall be void : where a shorter time is limited in any penal Satute , the Suit must be brought within that time .

27 Eliz . cap . 11. Information for the Queen upon Statutes of Tillage , shall be brought within five years after the action accurred unto her .

31 Eliz . cap . 5. Every information except champerty buying of extortions and offences against .

1 Eliz . cap . 1. Against fore-stallers , &c. must be brought into the County where the offence was indeed done . But officers of record using to pursue the informations by vertue of their Office may do as before .

31 Eliz . cap . 5. All suits for using unlawful , or not using lawful game , not having Bows or Arrows , using any Art or Mystery wherein he hath been brought up , shall be sued and prosecuted in the general quarter Sessions of Peace , or Assizes of the same County , or in the Leet within which the offence is committed , and not out of the same County .

29 Eliz . cap . 5. The Defendant in an information in the Kings Bench , Common Pleas , or Exchequer , where he is baylable or by leave of the Court may appear by Attorney , may the first day appear by Attorney of that Court , without putting in bail .

31 Eliz . cap . 10. This former Statute ( 29 Eliz . cap . 5 ) shall extend only to natural subjects and free denizons .

18 Eliz . cap . 5. Made perpetual .

27 Eliz . cap . 10. An Informer shall not compound or agree with the party 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 pass against him by verdict or judgment , then he shall render to the party his Costs and Damages to be assessed by the Court .

In which act also many other disorders in common Informers are redressed .

Indictments of the death of a man are to be taken before the Coroners . 35 H. 6. 27. So is it not of any other Felony , for the Stat. 4 E. 1. called officium Coronatoris setteth down the office of a Coroner to be so by the Common Law , and the whole order how he is to proceed in the inquiry .

Statutes .

Artic . super chart . cap . 3. The Coroner of the Shire shall joyn with the Kings Coroner in inquiring of the death of a man within the Kings house .

33 H. 8. cap . 12. The Coroner of the Kings house shall inquire alone without the Coroner of the Shire , by a Jury of the Yeomen officers of the Kings officers .

CHAP. 26. Of Original Process .

HItherto of the first matter of the suit , it followeth to speak of Original Process .

Original process is that process which is till the Defendant do appear .

Original process is single or mixt : Single , which is by the possessions only ( land or goods ) or only by the person .

That by the land is of two sorts . First summons and grand cape in a praecipe quod reddat .

The Summons is a warning of the tenant in his land , but not by his goods , or by a rent-service , rent-charge , rent-seck , nor a Common which he hath , for there the land is anothers by certain summoners , two at the least . The Summons upon an action brought against one as heir , 13 E. 2. Judg . 170. must be in land that did descend , otherwise it is in any land .

37 H. 6. 26. If it be to recover the freehold of land it self , it must be in the same land else making default , he may at the grand cape wage his Law of non-summons . But if he appear , it makes no matter in what land he be summoned . Old N. B. 177. 50 E. 3. 16. A grand cape is a process to take the land into the Kings hands by the view of lawful men , called thereupon Veyors , as the other are Parnors , with a summons of the Tenant to answer 38 H. 6. 33●●d N. B. ibid . as well to his default , as to the demandants action , and therefore it is called a grand Cape . Therefore here the Tenant is suffered to save his default as to say , that he was not summoned 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.

Stamf . Pre 84. And the King shall have the land to his own use , the Sheriff being accountable of the issues thereof from the default , till judgment for the Demandant .

Statutes .

13 Eliz . cap . 3. Upon a Summons in a real action fourteen days before the return , a Proclamation of the Summons shall be on a Sunday immediately after Divine Service , at the door of the Parish Church where the land lieth , and returned with the names of the Summoners . And till that done , no Grand cape shall go out , but an alias & pluries as the case requireth .

If the Tenant be returned summoned , 22 H. 6. 41. where indeed he was not , the Writ shall abate .

Secondly , it is summons and re-summons , or other like summons in a mortdancestor , Juris utrum , and an assize of Darrein presentment .

By the goods , as in assises of novel disseisin and nusance , where the original process is a Pone per vadios & salvos plegios . A Pone per vadios & salvos plegios ia a process to attach the Defendant by certain of his 35. H. 6. Br. Attachment 20. proper goods not borrowed , or in pledge unto him , being meer personal chattels , neither a 7 H. 6. 10. chattel real , as a ward , &c. nor 27 H. 6. 2. parcel of his free-hold as a clod of earth , &c. which he shall 9 H. 7. 9. forfeit if he appear not . ibid . And the Sheriff may take those goods with him , or leave them with the party at his pleasure . But whithersoever he do , the property is ●redge● out of the party till he make default .

The original process by the person ●redge● a Capias ( which is process to impris●redge● him ) then an exigent or solemn Br. per . Stamf . 15. dema●redge● at five several County Courts immed●redge●ately following one another : Theref●redge● 32 E. 3. Exigent 14. no Allocato comitatu lieth if a Court ●redge● holden after an exigent returned , and ●redge● not appearing , judgment to be out of t●redge● protection of the King and his Laws , whi●redge● we call outlawry . The judgment whereof is to be given by the Coroner in t●redge● fifth County . For 35 H. 6. 6 , Br. Exigent 24. 11 H. 7. 26. at the Commo●redge● Law there is no Outlawry , but where th●redge● Writ is vi & armis , as in Trespass , Conspiracy , Felony , &c. And the reason why it ●redge●eth there , is , because they are acts founde●redge● upon the sole tort of the Defendant . A●redge● this is in main Felony and Treason .

Statutes .

1 H. 5. c . 5. In every original Writ ●redge● actions , personals , appeals , and indictmen●redge● in which the Exigent shall be awarded : ●redge● the names of the Defendants in such Wri●redge● original appeals and indictments , addi●redge●ons shall be made of their estate and degre or mystery , and the Towns , Hamlets a●redge● places , and the Counties whereof they we●redge● or be , in which they were or be conversa●redge● Otherwise all Outlawries thereupon pr●redge●nounced shall be none . And before the●redge● outlawries pronounced , the said Writs and Indictments shall be abated by the exception of the party omitting the said additions .

6 H. 6. c . 1. All Exigends and outlawries upon Indictments in the Kings Bench of Felony and Treason shall be void , if before the Exigend , awarded , a Capias be not directed to the Sheriff of the County whereof they be named in the indictment , having six weeks space ( or longer , by the discretion of the Justices ) before the return .

8 H. 6. c . 10. In every indictment or appeal of treason , felony , or trespass , after the first Capias returned ; forthwith ( before an Exigend ) another Capias shall be awarded to the Sheriff of the County where the indictment is supposed to abide retornable before the same Justices , &c. containing the space of three moneths ( where the Counties be holden from moneth to moneth ) of four moneths ( where they be holden from six weeks to six weeks ) by which Capias the Sheriff shall be commanded to take his body if it be found in his Bailiwick , if it be not found , then to make proclamation ( for his appearance ) in two Counties before the return of the Writ . Any exigend or outlawry otherwise pronounced shall be holden for none .

10 H. 6. c . 6. The like is to be observed when any such indictment or appeal tak●redge● before Justices of peace , or other ha●redge● power , shall be removed before the K●redge● in his Bench , or elsewhere by Certiorari ●redge● otherwise .

6 H. 8. cap . 4. Upon every exige●t ●redge● writ to make three Proclamations ( return●redge●ble day of the return of the exigent , and th●redge● proclamations to be made , two in the ●redge● County Court , the third at the gene●redge● Sessions ) shall go out to the Sheriff of eve●redge● other County ( viz. than that where th●redge● action is brought ) where the Defendant i●redge● named to be , or late to have been , if th●redge● Kings Writ run there : otherwise to th●redge● County next adjoyning to that where he i●redge● so named . Being named late of Londer●redge● Middlesex , the Writ of Proclamation sh●redge● go out to every other County , where he ●redge● abiding , time of the exigent awarded . Eve●redge● outlawry to the contrary shall be avoide●redge● by plea .

27 E. 3. cap . 2. A writ of Idemptit●redge● nominis given to those whose lands , good or chattels be seised by any officer , su●sing them to be outlawed ( where they ●redge● not ) because they bear such names as the●redge● that be oulawed , for default of good d●redge●claration of the surname .

9 H. 6. cap . 4. Such an Idemptitate no●nis given to their Executors .

If the Exigent be returned not fully served without any folly in the Plaintiff , as 22 E. 3. 11. where the Defendant after demand at two Counties rendreth himself in Court , and upon mainprise found , hath a Supersedeas , and yet appears not at the day . But otherwise it is upon a 38 E. 3. 1. Supersedeas by another person bearing the same name , or in case where no 14 E. 3. En. 17. more Counties but four can be holden between the delivery of the Writ to the Sheriff , and the return , for it is the Plaintiffs own folly in the first case to put no difference between their names , and in the second to take so short a time . Though it be in the 17 E. 3. 43. hustings of London which are holden uncertainly , the Plaintff bringing a new exigent which we call an Exigent de novo 22 E. 3. 11. before any other County holden , but else not , shall have the benefit of the former Counties . And therefore it is called an exigent allocato Comitatu , or allocat● hustingo , if it be in London , where their hustings are as the County Courts .

Outlawry disableth him from suing any action . Lit . 43.

Statutes .

5 E. 3. cap . 12. In case where the Plaintiff hath recovered damages , and he against whom the damages be recovered , is outlawed at the K. suit , no charter of pardon shall be granted , except the Plaintiff be satisfied for his damages . When one is outlawed by process no such Charter shall be gra●●ed , except he yield himself before the Justices from whom the exigend issued , wh● shall cause the party to be warned to appear before them at a day . Whereupon ●redge● the Plaintiff appear , they shall plead up●● the first original , as if no outlawry ha● been . If the Plaintiff appear not ( and the warning be duly witnessed ) he that is o●lawed shall be delivered by virtue of h●● Charter .

31 Eliz . cap . 3. Upon every extent i● a personal action a writ of Proclamatio● shall go out of the same Court to the Sherif● of the County , where the Defendant at the time of the Exigend shall be dwelli●● ▪ Whereupon three Proclamations shall b● made ; one in open County Court , anothe●redge● at the quarter Sessions , the third one mo●redge● at the least before the Quint ' exact at the door of the Parish Church where the Defendant shall be dwelling at the time of the ●redge●gent , upon a Sunday immediately after d●redge●vine Service . All outlawries otherwise st●redge● be void .

But before reversing of any such out●●●ry in this respect , the Defendant shall p●redge● in bail , not only to answer the Plaintiff ●redge● a new action , but to satisfie the condem●tion , if the Plaintiff begin his suit withi●redge● two Terms .

Prerogative .

By outlawry all his chattels , whether Real as a 9 H. 6. 20. term for years ( and therefore there the King may seize the Land it self , and plow and sow , and occupy it as the ter●or might ) wardship , &c. or personal , as ones 30 H. 6 20. goods ( the property whereof is presently in the King , and he may have a detinue against every man that hath a possession of them ) profits 9 H. 6. 20. of land , wherein he hath a Free-hold or inheritance , viz. Bents , Corn , manurance of his Pasture ( yet in this case he cannot , &c. seise the land it self , nor occupy , plow , or sow it , or grant it away . And if the party so out-lawed make a feoffment , this feoffment is good , and the King after that shall have the profits no more . ) But not 20 H. 7. 13. a fornace , table fixed upon the land with posts , boards , doors , windows , and such like annexed to a Free-hold are forfeit to the King , not only those in possession , but even such as he hath a right unto , as debts , ( viz. 50 ass . pl. 1. 19 H. 6. 47. due by speciality , but not 16 E. 4. 4. 50 ass . pl. 1. 9 El. Dy . 262. 3 E. 3. Cor . 333. Contr . Stanf . 188. b . by a simple contract , for the reason supra fol. ) matters in So ass . pl. 5. 28 E. 3. 92. account Stanf . 188. b . goods taken away , &c. But not damages which he is to recover , as by reason of 28 E. 3. 92. trespass done to his land Stan . 188. b . battery , false imprisonment , or such like .

In case of mayme there must be three Capias , two in felony , as stelth , robbery and burglary , one duly in the death of a man , be it murder or man-slaughter , and high Treason .

Statutes .

25 E. 3. cap . 14. The second Capias in ●●e of Felony must be returned three weeks a●ter . 22 aspl . 81. In case of Felony and high Treas●● they that tarry the Exigent , though the● they render themselves , forfeit their ch●tels .

Mixt , is that which is to say by h● goods , 22 H. 6. 38. 34 H. 6. 49. as for want of goods he may reso● to his person . As first in all Praecipe q●redge● faciat , and other personal praecipes , and ●redge● personal Si fecerit te securums , F. N. Br. 92. g . 2 H. 4. 25. not being against the Peace , or likewise in all Justice or vicontiel writs , the process is a Su●mons by the Defendants goods , an a●tachment or Pone per vadios and distr●redge● infinite : Or if upon the Summons a ●redge●hil be returned , 21 H. 6. 56. that is to say , that the p●redge●ty hath nothing whereof to be summo●od , then a continual Capias .

Distress infinite is a process to distri●redge● him continually after , till he do app●redge● by certain of his goods , and profit of ●redge● lands , or as we use to say , issues , which ●redge● loseth if he appear not .

Statutes .

Westm . 2. cap . 37. No distress shall ●redge● but by Bailiffs sworn and known .

Westm . 2. cap . 39. the Plaintiff may aver that the Sheriff might have returned greater issues , and thereupon shall have a Judicial Writ to the Justice of assise to enquire of what and how great issues he might have answered from the day of the purchase of the writ to the day of the return , and the Sheriff shall be charged of the surplusage not returned .

1 E. 3. cap . 5. The like averment of two small issues returned given against the Bayliffs of Franchises , as well as the Sheriff .

Vpon this distress must be returned in issues the value of all his lands from the Test of the writ untill the day of the return . 24 El. Fairfaxes case in the common pleas . As if his land be worth 12 C. l. by the year , and a months space between the Teste and the return a C. l. issues must be returned upon him .

And with these issues whether in this case , or in any other case of a distress infinite , as after a venire facias to return Jurors &c. the land is chargeable into whose hand soever it come after . D. Stud per . Br. issues 23. As if issues be returned upon Tenant in Tail , Tenant for life , or a man seised in the right of his wife , the land shall be charged after their death : 22 H. 6.4 . or if an Abbot lose his issues , and after be translated and made a Bishop , the successor during his life shall be charged . And in this respect because the land is charged , 5 H. 7. 1. Br. disse . 41. the beasts of any stranger coming upon the same land may be distrained for the issues lost .

In such process as these where an attachment or distress should go out , if the defendant be a beneficed Clerk he must be warned by his person , or land if he have any lay fee else , as if the Sheriff return quod est Clericus Beneficatus non habens laicum feodum . Process shall go out to the ordinary , to make him appear by the issues of his benefice , which is called a venire facias Clericum .

Br. exigent 72. It is error if he be outlawed . 26 H. 8. 7. A Capias lieth not here against a Peet of the Realm . But against a Knight it lyeth , for a man may be a Knight that hath no free-hold : So cannot an Earl or Lord by common intendment . But if he have nothing in the County where he is sued , the party shall have an Elegit sure estatum in such a County where he hath assets .

F. N. B. 73. & 74. In a replev . the County Court , be it by writ or plaint , if the goods be conveyed away , so as at the Tenants suit they cannot be restored . As if he that took then drive them to a Fortlet or Castle , or out of the County , &c. whereby the Sheriff return upon the pluries that they are essoyned , process of withernam lyeth , which is for the plaintiff to have of the others goods till restitution of his own .

Statutes .

Westm . 1. cap . 17. The Sheriff or Bayliff may take the power of his County or Bayliwick , and beat down a Castle or Fo●● where such beasts are enclosed , if he that took them will not make deliverance .

Secondly in Trespasses upon the case against the Peace and in all other Trespasses , whether it be a writ of Deceit or Trespass vi , or though it be a Writ from the King himself upon a contempt or breach of the Peace , as refusing to come at the King , being sent unto him with money to aid him in his War , and spoyling and wasting mens lands , goods , and chattels , and other unlawful acts doing , and so every contempt it is attachment : And if a Capias in these cases go out first , and the party be taken thereby , he shall be dismissed , because it should be by pledges , distress infinite , and upon a Nihil returned , a Capias , as before .

Here for contempts a Capias lieth against Peers of the Realm , as for rescuing of one arrested by the course of the Law , &c. And that is in respect of their disturbance of the Law .

In actions of Trespass , with force , whether a common action or indictment of trespass , appeal of battery , or such like , after the attachment returned nihil , it is three Capias , viz. a capias alias and pluries , and then process of outlawry .

Statutes .

Westm . 2. cap . 11. Process of outlawry given in an action of account .

25 E. 3. cap . 17. Such process shall be made in a writ of debt and detinue of chattels , and taking of beasts by writ of Capias , and by process of Exigend by the Sheriff , as is now used in a writ of accompt .

7 H. 5. cap . 1. In writs to be purchased against those that forge or make untrue Charters or Minuments , and them proclaim or cause to be read , like process shall be made by capias and exigend , as in Writs of Trespass .

19 H. 7. cap . 9. Like process given in actions upon the case sued in the Kings Bench , and Common Pleas , as in actions of Trespass and Debt .

23 H. 8. cap . 14. Like process given in every Writ of anuity as in an action of Debt .

CHAP. 27. Of Counts .

THus far of the beginning of a sute The proceeding hath two parts , Count and Pleading ( which two are but one in Pleading ) or other mean acts .

11 H. 7. 22. A condition ( annexed to an estate of free-hold ) cannot be alledged in Count or pleading unless it be by deed : Be it in personal or real actions . 11 H 7. ibid Lit . 85. But a condition knit to a lease for years , or grant of a wardship , or other chattel Real may . Yet the Jury upon the general issue ( as nul tort nul disseisin in an assise ) may find it if they will . And thereby the party shall have advantage of it .

Count is a larger declaration for the time , place , quantity of the land , and other such things of the substance of the original writ . And therefore in a Formedon of four Acres and Count but of one , 8 E. 4. 1. 45 E. 3. 25. all the Writ shall abate , for it is not pursued . In an appeal of murder , he cannot declare that the Defendant traiterously killed him as he was going to succour the King in his Wars with twenty men in his company , &c. for the Writ supposeth no Treason .

Statutes .

36 E. 3. cap . 15. Declarations shall be good enough if they have matter of substance , though the terms be not apt .

In real actions which are in the right ( but not in meer possessory ones ) the Demandant must alledg the taking of the profits , we call it esplees , in the Declaration . As in pleas of Land , the taking of the profits of the land as errable , meadow , and pasture , &c. if of a pond , then by taking the fish there , as Breams , &c. In a writ of right of advowson , 8 E. 3. 331. 26 H. 8. 3. the esplees shall be laid in his Clerks taking the great and small tythes . In an assise of an office as of a filizary , &c. seisin shall be alledged by the taking of 4d . for making out a capias , 2 Mar. Dy . 114. 13 H. 8. 16. 19 H. 6. 32. or such like . In a quod permittat , by the taking of common by the mouth of his beasts . In a native habendo , esplees shall be alledged in the villein , viz. in taxing him high and low at his pleasure , in making his profit of him , to drive his Cattle , Br. Esplees 11. 21 H. 6. 22. to carry away his dung , and to do all other kind of villein service , &c. But in a Writ of Escheat , in a Writ of right sur disclaimer , and such like , which are founded upon the seigniory , and not upon any seisin of the land it self , no esplees shall be alledged . And these esplees where they are to be alledged , must be alledged in himself , if the action be brought of his own 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 shall be alledged only in the donee . 9 H. 6. 53. 50 E. 3. 1. In a formedon en remainder for an estate tail , only in the particular Tenant to prove the estate tail executed . In a formedon en reverter , they must be alledged both in the Donor and the Donee , for there a fee simple is demanded . In a lease for life the remainder in tail , and the lessee for life , and he in the remainder in tail die , the issue in tail shall have formedon en descender , and make no mention of the Tenant for life . And therefore the esplees shall be only alledgged in tenant in Tail , otherwise it is in the like case of a reversion in tail granted .

Instead of Count , a plaint shall be made in ass●ses of novel disseisin , and in writs of dower a demand .

CHAP. 28. Of Pleading .

PLeading is the parties debating of the suit .

Every plea , as Barre , Replication , Rejoynder , Sur-rejoynder , &c. must be offered to be proved true . By saying in the plea , 7 El. Ploy . 343. Et hoc patro natus est verificare , which we call an averment . But no averment need to be in avowry , for it is in lieu of a Count and Declaration . And the avowant is in a manner actor and Plaintiff , and to have a return .

An advantage of a matter which cannot be pleaded , shall be saved by protesting not acknowledgeng it to be true , although matter pleaded pass against him . 48 E. 3. 10. As if an infant bring an action of waste against his guardian , and appear by Attorney ( which none should do but one of full age ) if the guardian take his nonage by protestation , because he cannot plead it , it shall save him from all mischief . But in detinue brought by the Executor of A. the Defendant cannot take by protestation , 4 El. Plo . 276. that A. made not the Plaintiff his Executor , for that is the very ground of the sute , and may be denied by answer , and issue joyned upon it . And a protestation is but a saving to the party that taketh it , from being concluded of some matter alledged against him , whereupon he cannot joyn issue .

Pleas are either of the defendant when he is first brought in to answer , or the mutual pleas of both . In a joynt action against two or more : as in 48 E. 3. 1. an action of debt . But otherwise it is a writ of 1 H. 7. 25. conspiracy against two , for they are several wrongs , one of them appearing shall not answer . But must have idem dies till the other come in to answer , or 41 E. 3. 3. the sute be finished against him . As by death or outlawry in a personal action , debt , accompt , or such like .

An action by , or against an Infant as heir ▪ as 48 E. 3. 33. a formedon en descender brought by him , or a writ of 9 H. 6. 46. error against him where his ancestor recovered ; but Age 16. not where he cometh in of his own wrong , shall not proceed till his full age unless it be apparant that by proceeding he cannot be prejudiced . As in 48 E. 3. 33. a formedon en descender by an infant , if the Tenant plead a warranty with assets against him , the parrol shall demur , for if he traverse the assets , he should acknowledge the deed of warranty . But 48 E. 3. ib . if the Tenant plead a recovery in avoidance of the estate tail , the parol shall not demur ; for there the Court shall plead for him . But 14 E. 2. 17. Age 18. it shall not demur in a writ of entry sur desseisin by an infant , though the Tenant plead a matter en fait , as a Feoffment with warranty by the Ancestor of the Infant , for there the Infant claimeth of his own possession . And if an Infant and his Ancestor be Joynt-tenants in Fee , 48 E. 3. 35. and the Infant surviveth in a praecipe quod reddat against the Infant he shall not have his age .

Statutes .

Westm . 2. cap . 40. The Husbands heir called to warranty by the alience by a Cui in vita shall not have his age .

Glocest . cap . 2. An Infant holden out of his heritage after the death of his Father , cousin , Grandfather , or great Grandfather , in an action thereupon shall not have his age .

Westm . 1. cap . 46. In a writ of entry by the heir of the disseisee , the sute shall not stay for his nonage , no more shall it for the nonage of the heir of the desseisor , if the disseisee bring his assise , and before the assise pass the disseisor die . The like incorporations where the Lands go by succession . But in a writ of dower an Infant heir shall not have his age , 39 H. 6. 39. 44 E. 3. 42. nor the heir of the vouchee , in a Quod ei deforceat upon a recovery in a writ of dower , for it is in the nature of the first Writ .

CHAP. 29. Of Pleas to the Jurisdiction and Person .

THe Defendants first pleas are dilatory , or to the action .

Dilatory , which are before any plea in bar .

12 H. 7. 3. When an action is brought against many , they must joyn in the plea if they plead these dilatories , for in a praecipe quod reddat one cannot demand the view , and the other pray in aid , nor one pray in aid of one man , and the other of another man .

Dilatory pleas are exceptions , or foreign Advantages .

Exceptions are such dilatories grounded upon the matter it self of the sute . And are in dishability or abatement . Those in dishability , 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 .

3 H. 6. 40. Lit . 44. To the person , when it is alledged that the Plaintiff ought not to be answered , as if he be out-lawed , excommunicated , &c.

In which latter case the suit shall be put without day , only till he be absolved .

CHAP. 30. Of Pleas in Abatement .

THose in abatem . are for any fault in the first matter of the sute , for which cause the Defendant may have oyer of any thing tendred by the Plaintiff , and not being parcel of the record , as of the Writ , Condition , &c.

Pleas in abatement are to the Count first , and then to the Writ , for after pleading to the 30 E. 3. 20. Count or to the 4 E. 3. 166. plaint in an assise , a man may plead unto the Writ , but 4 E. 134 , 135. not to the Count after Plea to the Writ , but 24 E. 3. 47. 35. 3 E. 3. 70. to the matter of the Count he may .

And among pleas to the writ , exceptions that arise upon the view of the writ are to be pleaded before those that are forein , or dehors the writ as non tenure , several tenancy , &c.

Pleas to the Count are for insufficiency , variance from the Writ , &c.

Pleas to the writ are for default of form , false Latin , &c.

By waging of Law of non summons in a praecipe quod reddat , the writ shall abate . 22 H. 6. 41. Stam . 82. c . of an assise . F. N. B. So k of a Juris utrum also . 1 E. 4. 4.

In assises of novel disseisin and nusance , in appeals of felony and Juris utrum the defendant may have many pleas , two three , or more in abatement . As that there is no such Town , Hamlet , or place known by the name , &c. and if that be not found , then that no Tenant of the free-hold is named in the Writ , &c. So in an appeal of Felony , whether the same matters he of several natures ( that is to say ) one tryable by Record , the other by the Countrey , as that the appeal was purchased hanging another , and also that there is no such Town , nor Hamlet , nor place known out of the Town and Hamlet as C. whence the Defendant is supposed : or all of one nature triable by the Countrey , as that his name is Willia● , where he is named in the appeal John , 22 E. 4. 38. and also that there is no such Town , &c. or that the party whom he is supposed by the appeal to kill , was dead such a day , which was two years before the appeal commenced . Or that the Plaintiff is a Bastard , or being a woman which bringeth an appeal of the death of her Husband , that they were never accoupled in lawful Matrimony .

The writ abating for some cause that cannot be imputed to the Plaintiffs folly . as for 38 E. 3. per 46 E. 3. 14. false Latine , non 46 E. 3. 14. summons of the Sheriff 32 H. 6. 24. Joyntenancy , and such like ; but not for non 33 H. 6. 3. tenure , or 33 H. 6. ib . naming one an Esquire when he is a Knight , himself bringing another with speed in the same Court against the same party , we call it a writ purchased by Journeys accompts , shall have all advantages of the former , for he shall recover 9 E. 4. 5. costs for the first sute : the 2 H. 4. 21. defendant being executor shall be charged with the assets which he had day of the first Writ , 46 E. 3. 14. Being Tenant day of the first Writ , he shall not plead non tenure , being 41 E. 3. 4. sole Tenant then he shall not plead Joyntenancy , being 43 E. 3. 16 : Joynt-tenant , then he shall not plead several Tenancy . But no Writ by Journeys accounts lyeth by , or against any other than the self-same parties , and in the same Court that the former was : for 4 E. 6. Br. Journeys accom . 23. if the Plaintiff in a several action die , his Executors cannot have an Action by Journeys accounts . And 7 H. 6. 16. 23. if two coparceners bring a formedon , and one dyeth , the other as heir to her father may have a Writ of all by Journeys accounts . But as heir to her sister of her part she cannot . So if 14 H. 4. per 7 H. 6. 34. the Tenant in the praecipe die upon a Writ of dower brought , or such like , no writ lieth by journeys accounts . But 7 H. 6. 23. upon the death of one of the Joynt-tenants in a praecipe quod reddat , where the other hath all by survivor it doth : Lastly , if an assise of fresh force be abated in the Franchise , a new assise by Journeys accounts , cannot be in the Guildhall before the Justices of assise .

CHAP. 31. Of Oyer of the Writ or Bond , &c. view or prayer , voucher , garnishment , Interpleader to the Writ and Sanctuary .

Stat. West . 2. c . 48. from henceforth view shall not be granted , but where it is necessary , &c. sheweth that it did lye in those cases at the Common Law . And this view must be demanded before any plea in bar , and may be after pleading to the Writ : for though one plead a plea that goeth to the action ( as that the Plaintiff in a writ of dower is an alien ) yet if ee conclude to the Writ , he may have view after 3 H. 6. 55. FOreign advantages are delaies without exception to any thing . As in all actions Oyer of the Writ , &c. In 〈◇〉 actions , view , aid , prayer , and voucher .

View is in real actions of the thing demanded , or of the land whence it come●● when it is so necessary , as without vic● the Defendant cannot well answer .

Statutes .

West . 2. cap . 48. From henceforth vi●● shall not be granted , but in case where t● view is necessary , as if one lose land by d●fault , and he that loseth , moveth a Writ ●redge● demand the same Land . And in case whe●redge● one by an exception dilatory abateth ●redge● writ after the view , as by non tenure or misnaming of the Town , or such like , if he purchase another Writ in this case , and ●redge● the case before mentioned , from hencefort● the view shall not be granted if he had vie● in the first Writs . In a Writ of Dower where the demand is of the Land that the Husba●● alienated to the Tenant or his Ancestors , where the Tenant ought not to be ignorant what Land the Husband did alien unto him , or his Ancestors ; though the Husband died not seised , yet from henceforth view shall not be granted . In a Writ of Entry also that is abated , because the Demandant misnamed the Entry ; if he purchase another Writ of Entry , if the Tenant had view in the first Writ , he shall not have 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 , being within age , not whole of mind , being in prison , and such like , view shall not be granted hereafter : but if the demise was made to his Ancestor , the view shall not lie as it hath done before .

Stat. De visu terre & essoyne de servitio Domini Regis : View shall not be granted in a Writ of Ward , in a Writ of Customs and Services , in a Writ of Advowson of a Church ( but not in case where there be no more Churches than one in a Town , and all of one Saint ) in a Writ of Dower , and in a Writ of Nuper obiit .

Ayd Prayer is for Tenant for life , 31 E. 3. Joind . in aid 10. 33 H. 6. 29. to request him that hath the inheritance , to help him plead . And therefore here the tenant himself remaineth always party , and is never out of Court : And this Aid Prayer is for the feebleness of his estate .

So must an incumbent , the Patt●● and Ordinary . Else no recovery agai●●● him bindeth the successor or them . And the is in respect of their interest to the Church the Patron to present , and to have an Indicavit of the Tythes : the Ordinary to ad●● and to present by Lapse . But upon Aid prayer it doth , though they make default , and fess the action .

Statutes .

Westm . 2. cap . 3. He that is in the reversion shall be received in default of the Tenant for life . If judgment be given by reddition , or default , he in the revers●● shall have a writ of Entry after the death o● the Termor : so shall the heir where the Tenant was Tenant in Tail .

20 E. 1. De Defensionis Juris , he in the reversion desiring to be received before judgment , shall find Surety ▪ ( as the Court sh●redge● allow ) to answer the value of the issues ●redge● the Tenants from the day of the receipt , t●redge● Judgment , if it pass for the Demandant .

13 R. 2. cap . 17. The like receipt sha●redge● be for him in the reversion upon the fa●redge● pleading of such a Tenant , and he s●●redge● plead in chief without delay . And th●redge● Judges by discretion shall give days ●redge● grace between the Demandant and hi●redge● that is received , without giving the co●mon day in a plea of Land , unless it be by the Demandants assent . Surety of the issue shall be found ( as before ( 20 E. 1. ) as well where the receipt is counterpleaded , as where it is granted .

Glocest . cap . 11. Tenant for years shall be received before Judgment rendred , to say that the action was by covin .

Westm . 2. c . 3. Receipt is given to the wife in her husband , if he lose her land by default , 31 E. 3. Joyn . et ayd . 10. F.N. B. 134. b . and the Tenant that recovered against her husband must maintain his own right .

Voucher is the calling of one that should warrant in to answer the Action . Therefore upon the vouchees entring into warranty , the Tenant is out of Court . And notwithstanding a recovery in a Warrantia Chartae , yet if he be afterwards impleaded in an action where voucher lyeth , he must vouch him against whom the recovery was , else he shall have no benefit of that recovery

Statutes .

Westm . 1. c . 39. In Mortdancestor nuper obiit , intrusion , or other such like Writs in which land is demanded which should defend , covert , remain , or escheat , after the death of any Ancestor or otherwise , if the Tenant vouch , it 's 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 , unless the vouchee be ready , who if he vouch over , the Demandant shall have his counter-plea .

Also in a Writ of Entry in the degrees none shall vouch out of the line . Also in Writs of Right or of possession ( as before ) that is a good counter-plea , that the vouchee nor his Ancestor had never seisin of the land or any thing in the services 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 he might a Feoffment make unless the vouchee be present , who if he vouch over , the Demandant shall have his Counter-plea . But warranty of Charters lies in these cases .

20 E. 1. Stat. de vocat . ad warrant . This Counter-plea of voucher that the vouchee nor his Ancestors had never any thing , so as he could a Feoffment make with warranty shall be received , although the vouchee be ready to enter into warranty .

14 E. 3. cap . 18. If the Tenant vouch a dead man , the Demandant may aver he is dead , or there is none such .

F. N. B. 134. k . 22 H. 6. 22. West . 2. cap . 6. If the vouchee counter-plead the warranty , and it be found against him , he shall lose the land . Where the vouchee losing the Tenant shall recover 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 original process is Somons ad warrantizandum or 45 E. 3 23. 14 H. 6. 2 Br. Seque sub , &c. 3. Old N. B. 199. if one be 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 age the parol shall demur and a Grande Cape ad valentiam . If the summons ad wartantizandum or habendum visum , alias , Old N. B. ibid . and pluries , be not served , then a sequatur sub suo periculo is to go forth . And if the Tenant cannot get that served , he loseth his warranty . Therefore it is sub periculo of the Tenant . 13 E. 3. Judgment 117. And if upon vouching of an heir the Sequatur sub suo periculo be returned nihil in the land by descent , but that he was summoned in land that he had purchased , the Tenant loseth his Warranty , for the summons must be in lands descended . But if the Sequatur sub suo periculo , 3 H. 7. 13. Br. recov . non . valu 40. or the Cape ad valentiam be returned served , there the Tenant shall recover in value .

But in exchanges the hereditaments are liable from the very time of the Exchange .

In partition among coparceners , from the death of their Ancestor . So as the wives dower whom he taketh before any voucher by reason of such an Park . 61. b . exchange , or whom a Park . ibid . co-parcener in gavel kind marrieth at any time , shall be defeated upon a recovery in value , or proraetae , for so is the recovery in value called in the case of Coparceners .

Prerogative .

15 H. 7. 10. The King shall not be vouched , but prayed in aid , of which in that case hath the force of a voucher . As if the King by his Letters Patents give Lands to one by this word ( Dedi ) the Patentee shall have aid of him , 9 H. 6. 4. because by the same word he might vouch a common person . And when one prayeth in aid of the King in liew of a voucher , the special cause must be entred , else he shall never have in value by Petition .

So of Coparceners .

And if two Parceners make partition , one alienateth part of her purparty , 1 E. 3. 4. the other is impleaded and prayeth in aid of her Coparcener , and they lose . In this case she shall recover according to the rate of the moiety which she lost , whether the other alienated before aid , prayer , or after .

F.N.B. 17. 8. c . In an assize of novel disseisin and nusance , voucher lyeth not , unless the vouchee be present in Court , and will by and by enter into Warranty .

He that is impleaded in any action wherein he may vouch and doth not , shall never have the benefit of a Warrant-Chart .

Advantages in certain personal actions are Garnishment and Enterpleader . Garnishment is upon a Writ of Detinue , when being alledged by the Defendant to have been upon a bailment by the Plaintiff , and another , or for another upon condition . As that if I. S. do such a thing the goods shall be delivered to him ( for though the Plaintiff sole delivered the goods , 14 E. 4. 2. and I. S. were a stranger , yet I. S. is to have advantage of the condition , and may have a writ of detinue ) if not , then re-delivered to the Plaint . that other shall be brought in to shew whether by reason of that bailment which the Defendant so alledgeth both for the 21 H. 6. 25. place , 40 E. 3. 1. condition , 20 E. 4. 13. 40 E. 3. 11. 4 E. 3. ibid . and matter of the bailment , viz. who bailed it , &c. from which the Garnishee cannot vary howsoever it agree or disagree with the Plaintiffs declaration , himself or the Plaintiff ought to have them , for garnishment is but to know whether the condition , &c. alledged by the Defendant were performed or not . And if they were delivered upon other condition than the Defendant alledgeth , the garnishee is at no mischief but the Defendant : for the garnishee may recover them by a writ of detinue , and the Defendant by his false plea , maketh himself chargeable both to the Plaintiff and to the ganishee . But if the Defendant affirm not any certain bailment for place , condition , matter , 21 H. 6. 35. &c. as if the Plaintiff declare of a bailment upon certain conditions , &c. and shew which , and that he hath performed them , and the Defendant pray garnishment generally : there the garnishee may vary from the bailment alledged by the Plaintiff , for the Defendant hath not affirmed the same .

Interpleader is when divers bringing several writs of 33 H. 6. 25. 8 H. 6. 30. detinue , ward , 3 H. 6. 44. or Quare 19 H. 6. 68. Impedit against the same person in the same County , and for the same thing , though 8 H. 6. 30. 33 H. 6. 25. they vary in time and place of delivery ( for the place is not material being all in one County ) so as they vary not in the substance of their declaration , as for to declare of a chest sealed , without alledging any deed in certain : and the other to alledge a deed in certain . They 8 H. 6. ibid . all shall interplead together , as much to say , the rest shall answer him that brought the first writ , 33 H. 6. ibid . 8 H. 6. ibid . and therefore shall have the same day given them , if the writs be returnable at several days . And the reason of enterpleading in detinue is , because otherwise if one recover against the Defendant , yet the others action is not abated , but continueth still . Otherwise it is in a real action as in a Formedon praecipe quod reddat .

Prerogative .

The King may appoint any place h● thinketh good to be a safeguard for all offenders flying thither , that they shall not be molested or compelled to answer , whether one fly thither for 1 H. 7. 25. treason , Stamf . 111. The Abbot of battail had so . murder , theft , or other crime , for which he should lose life or member . And therefore this taking effect by the Kings grant only ( for touching the Kings Prerogative so nigh it cannot 1 H. 7. 26. be by prescription ) and being an immunity to one that offendeth the King and his Crown , is a 1 H. 7. 25. temporal matter pertaining to the temporal Coertion and Jurisdiction , and need no consecration . But yet when it is consecrated by the Popes unholy Ceremonies , it obtaineth the name of Sanctuary .

Statutes .

Taking of Sanctuary away .

26 H. 8. cap . 17. In High Treason .

28 H. 8. cap . 7. In Petty Treason .

27 H. 8. cap . 4. and 28 H. 8. cap . 15. In Treasons , Felonies , Robberies , and Consederacies , in or upon the Sea , or other Haven , River , Creek , or place where the Admiral hath or pretendeth Jurisdiction .

32 H. 8. cap . 4. In wilful Murder , Rape , Robbery , in or near the high way , or in any house , putting any person within in fear of his life , Felonies , burning of houses or barns with Corn , robberies of Churches , Chappels , or hallowed places , and all procurors , and abettors , and all offences where Sanctuary lieth not by the Law , or is taken away by any former Statute .

32 H. 8. c . 12. In Treason , Misprision of treason Man-slaughter within any of the places or houses of the King , or his heirs , or where the King in person is abiding . So in stealing , or in feloniously carrying away any Plate , Jewel , or other goods of the King or his successors , above 12 d . value .

32 H. 8. c . 1. made perpetual , 23 H. 8. c . 3. 1. E. 6. c . 12. In Murder or Poysoning of malice prepensed , breaking of any house by day or night , any person being in it and put in fear thereby , robbing in or nigh the high-way , felonious stealing of Horses , Geldings or Mares , or stealing goods out of any Church or Chappel . But in all other cases of Felony 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 Coyn of the Realm , or currant in the Realm , the Queens sign manual , privy Signet , or privy Seal , and all procuring and abetting .

1 and 2 Ph. and Mar. cap . 4. From these that call themselves Aegyptians .

27 H. 8. cap . 19. All in sanctuary for Murder or Felony out of the house , wear a badg in length and breadth ten inches : they shall wear no weapon but their meat knives , and that at meal only . Both these upon pain of loss of the priviledg .

They shall not be out of their lodging before Sun rising , nor after Sun set upon pain of imprisonment two days in that Sanctuary for the first time he is so taken , the second time six days imprisonment , the third time loss of his priviledge , upon substantial and indifferent proofs before the Lord Chancellor . And it is Felony for any Sanctuary person that shall of prepensed malice make rescues , or resist any Officer in imprisoning the priviledged persons as before . Contracts under 40 s . trespass and covenant between the priviledged persons , and other inhabitants in the Sanctuary shall be determined before the Governor .

32 H. 8. cap . 12. All Sanctuaries adnulled other than Churches and Church yards , and certain places named in that Act , and in 33 H. 8. cap . 15. which are appointed places of Tuition , for term of life to the offenders in capital offences . The priviledged persons shall every day be called by name , and making default three several days without lawful cause , forfeit the priviledg : committing any offence punishable by death is forfeiture also .

CHAP. 32. Of Pleas in Bar .

THus far of Dilatory pleas .

Pleas to the action are those the go to the body of the matter .

And are pleas in bar or confessi●● Pleas in bar are those which are to 〈◇〉 the Plaintiff of his action where the Defendant must make defence , as to sa● Defendit vim & injuriam quando . 〈◇〉 this defence shall not be in dower as●● of novel disseisin , 4 H. 6. 33. Per quae servicia , and ●taint .

The Tenant may plead a Warran● in bar of him that should warrant if ●redge● bring the action . As if there be Gran●●ther , Lit . 150. Father and son , the Grandfather is d●redge●seised , the Father releaseth to the disse●redge● with warranty , and dyeth after the Gra●redge●father dyeth . Now if the Son bring an a●redge● on to recover the Land he shall be ba●redge● by the warranty made by his Father , ●redge● this is called a Rebutter .

Statutes .

Glocest . cap . 3. The heir shall not ●redge● barred of his mothers inheritance by th●redge● warranty of the Father , being Tenant ●redge● courtesie , or alienating without fine in t●redge● mothers life time except he leave assets .

And though the Tenant of the Land be a stranger to the Warranty , as a disseisor or one that cometh in by a recovery , may plead that he hath a third persons estate , and 42 E. 19. rebut , but not vouch by a Warranty made unto the person . But in 21 E. 4. 82. Lit . Chap. of Warranty . Writs of Dower the Ancestors Warranty is no bar .

A Warranty made by the disseisor at the time of the disseisin : we call it a warranty commencing by disseising . As the Feoffment with Warranty of a Father , or other Ancestor , lessee for years or at will of the demise of his son , or of guardein in Knights service or soccage , or where one which hath not right entreth into the Land , and presently maketh a Feoffment with Warranty , ●arreth not his heir 50 E. 3. 12. for then his action and right should be lost for ever . But by such a Warranty the heir may be vouched , set that is in the nature of a Covenant against him as Heir to his Ancestor . So that if he have other Land descended to him from the same Ancestor , it is reason that he Warrant that which he may do , saving to him his action that he may have by reason of the disseisin .

In an assise of novel disseisin and trespass the defendant pleading a title in bar must give colour of title to the Plaintiff , for if either it be no title , as either in trespass to plead 22 H. 6. 50. it is his free-hold , or 2 E. 4. 8. the free-hold of I. S. and that he entred by his commandment , or 15 H. 7. 10. when one praye●redge● aid of J. S. or of the King , or Rege l●c●●leo , though he intitle himself by a lease ●redge● will , &c. colour needs not . Otherwise ●redge● 21 E. 4. ib . if he entitle another to a lease for ye●redge● and justifie by his commandment . So 32 H. 6. 1. a matter that destroyeth the Plaintiffs t●redge● as a release in an assise , 21 E. 4. & 5. in a trespass ●redge● goods a sale by a stranger in Market o●redge● and that the Plaintiff took them out of ●redge● possession , and he re-took them , there col●redge● needs not .

No more it doth where he pleadeth ●redge● the writ and not in bar , though the plea●redge● deed go in bar . As in trespass of goods , ●redge● J . S. was possessed and made Alice S . ●redge● J . D. his Executors and dyed . Alice S. t●redge● the Plaintiff to Husband , and was covert ●redge● of the trespass and after dyed . So should ●redge● writ be brought by J. D. who is yet in ●redge● life , not named in the writ , judgment ●redge● the writ , &c.

And in giving colour these things must ●redge● observed .

1. It must be to the Plaintiff , not ●redge● stranger , 38 H. 6. 7. nor to the Defendant .

Not to a stranger , as in trespass that was seised and him enfeoffed , and J.S. cl●●ing by colour of a deed of feoffment fro● where nothing in truth passed , &c. eno●redge● and enfeoffed the Plaintiff . This is no g●redge● colour , for in a stranger matters en fait ●redge● always be alledged , as to say , that J . ●redge● enfeoffed A. who enfeoffed the Plaintiff : ●redge● that A. entred and disseised J. S. and en●ledge●offed the Plaintiff , &c.

Neither must the plaintiff give colour to ●ledge●he Defendant , 19 H. 6. 31. as where the Defendant pleadeth his freehold , now if the Plaintiff ●ledge●ay that before the Defendant any thing had , A. was seised and enfeoffed the Plaintiff , and ●ledge●he D. by claiming colour of a deed of feoff●ledge●en from A. where nothing passed , &c. en●ledge●red , upon whom the re-entred is not good .

2. It must be of such a possession where●ledge●y he may maintain his action .

As in an assise the Defendant must give ●ledge●he Pl. a colour of the Pl. own possession , 32 H. 6. 6. ●ledge●nd not of the possession of his Ancestor , as ●ledge● say that the Plaintiff claiming by colour ●ledge●f a deed of Feoffment made unto himself ●ledge●here nothing passed , &c. is good . But not ●ledge● say that the Plaintiff claiming by colour ●ledge●f a deed of Feoffment made to his Ancest●ledge●r where nothing passed , &c. for of such a ●ledge●ossession in his Ancestor he cannot have an ●ledge●ffise .

3. The colour must be a matter doubt●ledge● in Law , 19 H. 6. 21. or otherwise difficult to the ●ledge●y-people , else it is not sufferable , but he ●ledge●all be forced to take the general issue , as ●ledge● an assise to say , Nul tort , &c. or in action ●ledge● Trespass , not guilty . As if I bring ●ledge● assise against you , and you say that you ●ledge● the same land to one for term of life , ●ledge●d after granted the reversion to me , and ●ledge●e Tenant for term of life dyed , and that ●ledge●laiming the reversion by force of the said grant , where the Tenant did never attu●● entred , &c. This especial matter is sufferable , because that is dangerous to plead N● tort , &c. For the lay-people will think that the reversion passeth by force of the gra●● without atturnment . The same Law it is where the Tenant saith , that he himself let the land to the Plaintiff for term of his life , and then the Plaintiff did surrender : For the lay-people know not that a surrender may pass by word . The same Law it is where the Tenant saith , that the Father of the Plaintiff let unto him for term of an●ther mans life , and after released unto hi● . And the Plaintiff supposing that his Father dyed seised of the Reversion ousted him after the death of him , for whose life , &c. because the lay-people understand not but this release doth inure , whether by way of enlargment , feoffment , confirmation , ●redge● extinguishment . The same Law it is if the Tenant say that the Father of the Plainti●redge● enfeoffed him , and afterwards suffered hi●redge● to occupy at will , and he supposing , &c. The same Law it is to say , that the Plaintiff claiming as Bastard and eldest ●redge● entred , because the lay-people think ●redge● the eldest Son , though he be a Bas●redge● may inherit . The same Law it is to say ●redge● such a one was seised and infeoffed , the ●●nant and the Plaintiff claiming by a De●redge● feoffment made before where nothing ●redge●sed , &c. because the lay-people thi●●redge● a good feoffment , though it be ●redge● without livery . But where the special matter is not a matter in Law , or difficult , there the Tenant or Defendant must take the general issue , as if the Tenant say , that he was seised untill he was by the Plaintiff 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 Plaintiff claims as younger son , because that every man knoweth , that the younger son cannot inherit before the elder . The same Law it is if he say , that he leased to the Father of the Plaintiff for term of life or years , or for term of another mans life , and the Plaintiff supposing that he had died seised of an estate in fee-simple , entred , &c. because in these cases the Lay people do well understand that he is no disseisor : and therefore in these , and in all other like , the Tenant shall take the general issue .

In real actions for the meer right when it is in respect of a disseisin done to him or his Ancestors , and not founded upon a seigniory , as a Writ of Eschete , a Writ of ●ight sur disclaimer , 16 E. 4. 9. 3 E. 3. Dr. 26. &c. the Tenant cannot traverse the seisin , but may tender half a Mark to the King to have it in●o●ted by the Iury : and being found that the Demandant was not seised in the time whereof he counteth , that shall ●●t him for ever .

Prerogative .

The Tenant cannot tender half a mark against the King .

The Heir or Executors in an Action brought against them , where they are chargeable , pleading a matter in their own knowledge 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 perpetual bar . As for the heir to plead that nothing descended to him from the same Ancestor ; the Executor to plead a release or acquittance made unto himself , or that he was never Executor , nor never Administred as Executor shall be charged as in their proper duty , if it pass against them . Otherwise it is if the Executor plead Mit●mer , or another Executor alive not named is the Writ ( for that is no bar , but only to the Writ , ) or Oriens inter mains ( for that i●redge● no perpetual bar , 6 & 7 E. 6. Dy . 81. where the heir is condemned by a Nihil dicit , execution shall be of lands descended by a special Elegit , not of his goods , &c. nor no Cap. ad satis . lyeth against him . 21. E. 3. ibid . for a Scire facias lyeth i●redge● they come to have Lands after ) or a release , or acquittance to their Testator : or Nice●● fait of their testator , for they cannot have knowledge of it . Otherwise it is also if either the Heir or Executor be condemned by a Nihil dicit , or confess the certainty o●redge● the assets . And in the first case , as wher●redge● the heir pleadeth nothing by descent , &c. which is found against him , the Plainti●redge● shall have an Elegit of the moiety of all h●redge● lands , as well purchased , as by descent : ●redge● in a Formedon en Descender , if the Tena●redge● plead in bar a warranty with assets , a●redge● the Demandant said Rien per descent , a●redge● it is found that he hath by descent , he shall be barred of all that he demandeth by his Writ ( of how small value that be which descendeth ) because the issue that he tendred is false .

In Assises of Novel Disseisin , Nusance , Mortdancester , Juris utrum , and in Indicments and Appeals of Felony , the Defendant may plead in abatement , and over in bar , or take the general issue also . As in a Mortdancester , 40 E. 3 29. that he hath nothing but in right of his wife ; or 2 E. 3. 62. 22 E. 4. 39. J. S. holdeth parcel of the Land in demand , not named in the Writ : and if that be found against him , then that he hath abated . In an assise of Joyntenancy , or Misnomer , which are in abatement or any matter in bar : ( unless he confess a putting out of the Tenant , or that which amounts to as much , as by pleading a release , or such like ) and if that be not found , then he hath done no wrong . In a Juris utrum , the Tenant may plead Misnomer of the Demandant , 12 E. 2. Jur . ver 12. or that a stranger holdeth parcel not named . And if it be found , &c. that the Demandant hath received his fealty , &c. And if it be found , &c. then that it is his Lay see , and not Frank Almoign , &c. In an Indictment , or appeal of death , Misnomer of himself , or no such Town ; and to the Felony not guilty . But he cannot plead a Release and to the Felony not guilty : 4 H. 6. 15. 22 E. 4. 38. ibid . for by the Release he hath in a manner confest the felony : also he may plead a matter in bar , and upon that sound against him , then plead not guilty , though he pleaded it not before .

1 E. 5. 5. In Assises of Novel Disseisin and Nusance , he may plead a special matter that amounteth but to the general Issue . As in an Assise of Rent by Dean 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 Plaintiff was never seised , so as he could not be disseised .

Vpon 9 E. 4. 21. Indictments of Felony and Treason , otherwise it is in Appeals , the Defendant being put to answer , which is called an Arraignment , is not allowed council , if he deny Stamf . 151. b . the fact . For either his conscience perhaps will sting him to utter the truth , or otherwise by his gesture , countenane , or simplicity of speech , it may be discovered ; which the artificial speech of his Council learned , would hide and colour . Also himself can best answer to the fact . 1 H. 7. 23. 32 H. Dy . 13. 41 E. 3. 27. But if he plead Sanctuary , or any other matter in Law , then he shall have council . A Presentment in the Leet o● Sheriffs turn , after the day of the Presentment bindeth the party for ever , and is not traversible , 5 H. 7. 3. but in cases that touch ones Free-hold : as that one ought to cleanse the High-way or such like , ratione tenurae suae : therefore the course is to remote such presentments into the Kings Bench by a Certiorari , where he may traverse them .

CHAP. 33. Of Confessions .

COnfession is when the Defendant confesseth the Plaintiffs action to be good . The Defendant confessing an Indictment of Felony may accuse others , in which case we call him an Approver . And one cannot 9 H. 6. Co. 1. be an Approver , but in Felony or Treason . And that upon an 1 H. 7. 5. Indictment only , and though it be 1 H. 7. ibid . after not guilty pleaded , yet before verdict he may become an Approver . But upon an appeal one cannot be an approver . For without 1 H. 5. Co. 441. confession of Felony before the Judges , which confession must be Stam . 143. a. upon an indictment precedent ( that the judg may at any time give judgment to attaint him ) not upon an arrest for Felony of the same offence . But he cannot approve one that Stam . 143. c received him , for it must be of such an offence as he himself did , together with the other : nor one that 10 E. 4. 14. abetted , and procured him to commit the Felony , for he confesseth not himself guilty of the same offence , in as much as he cannot abet himself .

Statutes .

Westm . 1. c . 12. Notorious Felons which . will not put themselves upon an inquest at the Kings sute against them , shall be put to a pain fort & dure , as those which refuse to be tried by the Law of the Land .

One that flyeth to a The Stat. 32. H. 8. cap . 21. so reciteth it . Church or Church-yard , and cofesseth before the Coronor when he cometh , the certainty of any bar , felony , where life or member is to be lost before he be thereof attainted , whether upon an indictment or appeal , Stamf . 119. b . as that he hath stoln such or such a thing , killed such or such a man . But at the first taking of the Church , Stam . 116. it is enough to say , he taketh it for a felony , which he hath committed generally may abjure , and so save himself . But not in case of high Treason , or petty Treason , for the Coronor cannot attaint him upon his confession thereof , because he is not his Judge of such a crime : neither can be hi● Judg as he is Coronor , although he have a Commission from the King to do it . And if the offender , being in the Church , will of purpose confess a felony , to the inte● to escape of Treason , yet if the Coronor have information that he is charged with a Treason , he may not suffer him to abjure . And that for the Kings advantage , who is 〈◇〉 take more benefit if he be attainted of Treason than of felony , because of the escheas The same Law it is of petty Treason , for th●redge● Coronor can no more record his confessio●redge● of that than of high Treason : neither may the Coronor if he be informed that he have committed petty Treason , suffer him to abjure of Felony , and that in respect of the heinousness of the offence , Br. Coro . 182. notwithstanding the King be to have no more advantage in petty Treason than in Felony . Neither can a man abjure for petty-larceney , because he is not to suffer death for it likewise .

Abjuration is his Stam . 119. b . oath before the Coronor himself to depart the Realm for ever at the time and place set him : going the direct way thither : tarrying there but one flood and ebb if he can have passage : aad till he can so pass going every day into the sea up to the knees to assay if he may passover , and if he cannot pass with in ●0 days , then to put himself again into 〈◇〉 Church as a Felon , &c. And this abjuration is an Stam . 122. c . attainder in it self ( and that the strongest that can be , being by his own confession ) and a 4 El. 262. forfeiture of his Land . And there is a Writ of escheate of of Land for ●elony , pro qua abjuravit reg●● . And therefore he 3 E. 3. Co. 33. f . that is hanged upon judgment against him , and becometh alive again , cannot abjure ( but an abjuration in that case is an escape ) for one cannot have two judgments for one offence .

Statutes .

9 E. 2. Stat. de artic . cleri . cap . 10. Those that abjure may not be molested whilst they are in the street , and whilst they be in the Church , their keepers may not tarry in the Church-yard .

9 E. 2. St. de art . cler . c . 15. A Clerk shall not be compelled to abjure , but to have his Clergy .

21 H. 8. c . 2. Immediately after confession , and before abjuration , the Felo● shall be marked in the hand with an hot Iron , with the sign of an A. The Felon must take his passage at such a day and time as the Coronor shall limit , else he shall lose the benefit of Sanctuary , and be taken out , and further ordered according to his demerits , without restitution to Sanctuary .

22 H. cap . 14. If he be found out of the place , he shall dye for it .

22 H. 8. c . 12. All abjurations shall be made to certain priviledged places within the Ream , mentioned in that act , there t● 〈◇〉 main during his life .

CHAP. 34. Of Replication , Rejoynder , Sur-rejoynder , &c.

THe mutual pleas of both are the ●bating before issues , or an issue it self .

Debating before issue , is the discussing of the material things , to draw it to some one issue . As in an actio● of Trespass or an Assise , if the Defendant claim by a lease from the Plaintiff to A. who granteth his term to B. and to B. the Defendant , the Plaintiff must answer only to his own Lease , for the assignments of A. are but conveyances , and not material . But in an assise , if the Defendant derive his interest from a stranger , and that A. was seised and enseoffed B. who enfeoffed C. and C. the Tenant : there the Plaintiff may traverse any of the mean Conveyances , for they are all material .

Therefore repugnance of a Plea unto it self is a fault in pleading , as in an action of Trespass of his house , and walls broken down , the Defendant cannot plead touching the house , not guilty , and as to the breaking down of the walls justifie , for this carrieth a repugnancy in it , in as much 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 cometh in with a new matter . As if the rejoynder be a matter puisne , underneath the matter of his bar , not above and going before it . As in an action of Trespass , the Defendant pleadeth a discent unto him of the Land , the Plaintiff saith , that after the descent the Defendant enfeoffed him . Now if the Defendant rejoyn that the feoffment was upon conditon , and he entred for the condition broken ; this is a departure for the matter of the bar , that is , the discent , is before the matter of the rejoynder , that is to say , the entry for the condition broken , whereby the feoffment is avoided . So in an assise , the Defendant pleadeth the feoffement of J. S. and the Plaintiff make title to himself by discent , and that he was disseised by J. S. who enfeoffed the Demandant , or that he enfeoffed J. S. upon 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 feoffment of I. S. to the Defendant , the Plaintiff did release to the Defendant , or confirm the estate of the Defendant , this is a departure , for that is a matter that groweth after the feoffment pleaded in Bar . But if he plead such a release or confirmation from the Plaintiff to I. S. that is no departure , for it is a matter before the feoffment , or in an action of trespass for goods , if the Defendant title himself by the gift of I. S. and the Plaintiff saith , that himself was possessed till I. S. took them from him , and gave them to the Defendant . Now the Defendant may say , that after the taking the Plaintiff gave them to I. S. who gave them to the Defendant ; for although the Defendant might have pleaded these things at the beginning , yet in as much as it is pursuing , and fortifieth his Bar , and no puis●e matter underneath the title of his Bar , but eigne , and above the matter of his Bar , therefore it is no departure . So a plea in Bar which is intendible at the Common Law , cannot be maintained by a matter of Custom , or by Statute-Law . As in an assise the tenant pleadeth in bar a devise unto himself of the Land being devisible by the custom , the Plaintiff saith that the Devisor was within age at the time of the devise . Now if the Tenant said that by the custom there an infant of fifteen years of age may make a devise : This is a departure , for the custom pleaded in bar shall be intended of those that may make a devise by the Common Law . So if in an action of Trespass the Defendant plead in bar a lease for fifty years from a house of Religion , and the Plaintiff avoid it by reason it was made within a year 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 provided that all such leases shall be good for 21 years , and so maintain the lease to be good for so many years , this is a departure : or if one plead a fine , and that being avoided , because the parties to the fine had nothing , will maintain the fine to be good by the Statute 1 R. 3. because he had levied the fine cesti qui use . Lastly , when matters are pleaded which offer several issues , that is termed a double plea , and is a fault in pleading . As in an assise to plead a feoffment of the Ancestor with Warranty . In debt upon a simple contract to plead payment and an acquittance . In an assise to plead divers descents of the Land in fee-simple , for every of them requireth a several answer . But in an assise to plead divers discents in tail , is not double , for one answer maketh an end of all , that is to deny the gift in tail , So as the matter cannot co●● but to one issue : So in an action of debt to plead fully administred , and so riens tu● mains , for one answer , assets enter main● serveth .

So is it also of two or three matters together with the general conclusion , as in debt upon an obligation to say , that he is not lettered , and the Deed was read unto hi● in another sort : and further , that he delivered it upon a condition , which is not performed , so not his Deed . So to justifie an arrest for twenty causes of suspition of felony , is not double , for one answer serveth De s●● tort demesne . No more to assign in a Writ of error as many errors as appear in the record , for in millo est erratum , answereth them all . But to assign divers errors en fait is double , for these are to be tried by the Country . And the reason of all this is , because upon divers issues joyned , if one be found for the party , and another against him , the Court shall be inveigled , and not know how to give judgment , whether for him , or against him . But to plead a feoffment with warranty , and relye upon the warrranty only is not double , for he cannot plead the Warranty without the feoffment .

Of the first sort are Replication , rejoynder , surrender , &c.

In an assise against many , if each 33 H. 6. 36. take the whole tenancy severally , and ●●ad 33 H. 6. 36. several matters in bar : or ces Br. ass . 1 383. ●●t Nul tort , and the other in bar : other●●se 44 E. 3. 23. it is if one plead in bar , and the other Joyntenancy by deed : the Plaintiff at his peril must chuse his Tenant . 8 ass . Pl. 1. And then after issue for the whole , that , viz. the Tenancy , shall be first inquired of . And being found for the Plaintiff , then the other issue shall be inquired . Ces ibid . Being found against him , and no title made against the tenant indeed , the writ shall abate .

In an action of trespass meer transitory , although the Defendant justifie by any special matter , as in a 19 H. 6. 65 Trespass of goods , by commandment of J. S. whose the property is , in 34 H. 6. 16 assault and battery , or an 14 ass . Pl. 21 appeal of maime , in his own defence upon the plaintinffs first assaulting of him : in false imprisonment by 5 H. 7. 6. being Constable of the Town , and that the Plaintiff brake the Peace , or 2 E. 4. 9. by an arrest for suspition of Felony , or by 22 ass . Pl. 85. the commandment of J. S. to seise the body of the Plaintiff in ward , by reason his ancestor whose heir he is , held of J.S. by Knight service , &c. yet the Plaintiff 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 Justification be by matter of writing , or record , as in false imprisonment , by 21 H. 6. 5. a warrant of Justice of peace to arrest him , or a 5 H. 7. 6. 2 E. 4. 9. Capias that came to him as Sheriff to take the body of the Plaintiff , or if it be any 44 E. 3. 18. 22 ass . Pl. 185. title or licence ( d ) from the Plaintiff , there de son tort demesn is no plea , but the special matter must be answered . 12 E. 4. 10. So alwaies in a trespass local , as of his close broken down , &c. If the Defendant intitle a stranger to the Land , whether to the free-hold , or though it be but to a lease of it , and justifie by his commandment . And likewise in a B. Roy . replevin which is real , the title or special matter must always be traversed . If it be a trespass upon land , the Defendant justifying in some other land than the Plaintiff meaneth , the Plaintiff may make a new assignment , setting forth the place more specially . 27 H. 8. 7. As if the Defendant justifie in a place called A. as his free hold , the Plaint . may say in the place where , &c. is called B. other than the place called A and then the Defendant may plead all anew .

CHAP. 35. Of Issues .

AN Issue is when both the partie● joyn upon somewhat that they refer unto a trial , to make an end of the Plea . And it is of the fact , or law of the fact , which is commonly termed by the general name of issue , when the proper contradiction of that which one alledgeth is set down by the other , which is properly termed a traverse . As in debt upon an Obligation for performance of Covenants , and the defendant plead he hath per●●med all , the Plaintiff must shew some in ●●tain which the Defendant hath broken , 15 H. 7. 2. thereupon issue shall be joyned : but can●●t reply that the Defendant hath not perf●rmed all . For in Logick there be three ●●ods of contradictions : General , when both the Propositions are general , as , All be covenants are broken , None of the co●enants are broken . Particular , when one is General , the other particular , as , all the ●ovenants are broken , some of the co●enants are not broken , none of the co●enants are broken , some of the covenants ●●e broken . Proper , when both the propositions are proper , as , this covenant is broken , this Covenant is not broken . 33 H. 6. 9. The two ●●mer make no issue in our Law , but the ●●ter only : and every issue is of an affir●ative and a negative . After which if any insufficiency of pleading appear in the word , whether the issue be joyned thereupon which we call a Jeofaile , or no , the parties must replead or begin a new ●here the first defect was . And in this case Jury is ready at the bar that to pass upon ●●e issue , shall be discharged . 35 H. 8. Br. replead . 54. 7 H. 7. 3. As if the bar be good , and the replication ill , and issue taken upon it , the judgment must be that the Plaintiff must make a new replication , and the bar shall remain . So if the bar be good , and likewise the replication , but the rejoynder ill , and the issue taken upon the rejoynder , the defendant must take a new rejoynder , and the replication shall remain . But if the Bar be ill , and the replication good , and the issue taken upon it , now they must plead all a new , because the bar which is first of all is vicious .

But no repleader shall be in an assise , if the Plaintiff have disclosed a sufficient title : for in an assise no Land in certain is demanded , but an assise only prayed . And therefore where a sufficient title is disclosed , the Plaintiff shall have judgment upon seisin , and disseisin found for him . And no repleader shall be notwithstanding that the Tenant have made a 14 H. 7. 12. vicious bat or 5 H. 7. 29. 33 H. 6. 37. 5 H. 7. 29. misrejoyned . Otherwise it is if the Plaintiff take issue upon an insufficient bar .

If the tender of this issue come on the Plaintiffs part , the form is , Et hoc petiit quod inquiratur per recordu , vel patrid , &c. If on the Defendants part , then it is , Et de hoc point se super recordum illud vel s●per patriam .

19 H. 6. 57. Issue in a writ of right cannot be joyned , we call it joyning of the mise , upo● the meer right , but by the party himself , not by Attorney .

15 H. 7. 13. Where the Plaintiff in his replication maketh title at large , without traversing or confessing and avoiding the bar , or any way medling with it , the Tenant may joyn issue upon the title by saying , Veig● assise sur la title , 15 H. 7. ibid . 5 H. 7. 29. that is , Let the assise come upon the title , which is called a pleading to the assise at large . This to be understood where the title is by a matter en fait , but not record , or done 5 H. 7. ibid . 14 H. 7. 6. 46 E. 3. 11. 10 H. 6. 26. 14 H. 7. 6. 4 H. 6. 10. in a forein County , for they are not tryable by the assise .

And in a personal action , whether trespass or replevin where justification is made for damage feasant , for that is meerly in the personality , where the title of the Land cometh in question , lyeth not till issue joyned . And yet in that case it never lyeth for Tenant for life , but only for Tenant for years , Bailiff , &c.

Prerogative .

Aid in these actions shall be of the king before issue joyned only , 5 E. 4. aid de Roy . 50. 3 H. 6. p. Pl. 216 though the King be seised but in his natural capacity , as in the right of his Dutchy of Lancaster .

CHAP. 36. Of Trial by Jury .

THis being of a matter en fait , that is to say , 9 H. 6. 38. done in the Countrey . For a Jury shall not be charged with a matter in Law : nor it shall not be given in evidence unto them . But if they will take knowledge of the Law , they may give their verdict generally , 14 El. Pl. 410. viz. where a verdict may be given at large . As upon an issue of Nul tort nul disseisin . So the Jury may find of themselves matters of record if they will , and although it be 〈◇〉 given in evidence . And therefore a fine or common recovery may be given in evidence without shewing it under the great Seal , or Seal of the Court , or vouching the Roll of the Recovery , for the Jury may f●●d them if they will . But peradventure they are not bound to find it upon pain of ●●taint ,

Old N. B. 171. 11. b .

The form of the Writ of venire facias .

unless it be shewed under the Seal is triable by the oath of twelve free 〈◇〉 lawful men of the same County , indifferently chosen , whom we call a Jury , and the making of the Jury is called a panel or array . And these must be 12 for the verdict no more or less , as of 41 ass . Pl. 11 or 13 is void free , not 26 ass . Pl 28. villeins , nor 14 H. 4. 19. aliens : lawful , for one outlawed may not be a Jur● because he is not Legalis homo , 21 H. 6. 30. and ●redge● the same County , for upon 9 H. 6. 63. a tresp●redge● local , as grass cut down in the County o●redge● D . where the Trespass was in the Cou●redge● of S. if the Defendant plead not g●redge● ( as he may ) and the Jury find him g●redge● in the County of S. the verdict is void . 28 H. 8. Dy . 30. ●redge● if they find them guilty generally , a●●redge●taint lyeth . But upon an issue whether ●redge● Executors have assets in their hands , the ●redge●ry may find the assets in any County , s●redge● is but a transitory thing . Lastly , the J●redge● must be indifferently chosen , so as nei●redge● the Sheriff that maketh it ( for that is g●redge● cause of challenge to the panel or a●redge● nor the Jurors that are to pass upo● ( for that is good cause of challenge to ●redge● pols ) bear either favour or malice to any party . As for the Sheriff to put in any Juror at the parties denomination . And either the Sheriff or Juror to be of his 8 ass . Pl. 23 Fee , 7 H. 4. 10. or his 21 E. 4. 67. servant , or within 20 H. 6. 39. for the Sheriff . his distress , whether his Tenant ( immediate or not immediate , as

38 E. 3. 25. 38 E. 3. ibid . 15 E. 4. 18. Br. chall. 68. 38 E. 3. ibid . maketh a query of this .

15 Eliz . Pl. 425 for the Sheriff . 21 E. 4. 63. for a Juror .

holding of J. S. who holdeth of the party ) or not his Tenant , as where he is to come to the parties Hundred , or the party hath a Rent-charge going out of his Land . To be of kin to the party , for Cousinage in the Sheriff is a good principal challeng to the array , and in a Juror to the Poll : although it be in the ninth degree , and that one cannot be heir to the other of the land in variance . As if Husband and Wife be vouched ( which is intendible for the warranty and Land of the wife ) and the Sheriff or Juror be Cousin in the ninth degree unto the Husband , the reason whereof is , for the affection which the Law intendeth that the one doth carry to the other . And because one may be heir to the other of other land . And therefore it is a good challenge in personal sutes also : To have been 21 H. 6. 39. for the Sheriff . 3 H. 6. 24. for the Juror . arbitrators on his part in that matter . To 11 H. 4. 26. have an action of battery depending against the party , or an action of debt by the party against him , &c. The Juror to have 49 E. 3. 2. taken money for his verdict to have 49 E. 3. 1. given it beforehand , or to have 7 H. 4. 11. passed formerly in the same matter , and such other things as of themselves carry favour or malice in them , and are called principal challenges . So of those which only do induce it : as to be the parties 21 E. 4. 67 for the Sheriff 14 H. 7. 2. for a Juror . Master , 49 E. 3. 1. Councellor , Attorney , 14 H. 7. 2. Steward of his Manor , to 11 H. 4. 26. soe him in an action of debt , &c. to be 20 H. 7. 2. of the same society with him , as if both be of Graies-Inne , or the 14 H. 7. 2. party to be within his distress , or 18 E. 4. 13 he to have passed before upon such another matter .

Statutes .

Westm . 2. cap . 38. In an Assise no more shall be summoned but 14.

Men above Lxx. years of age continually sick , or sick at the time of Summons , shall not be returned in Juries or Assises : nor any that dwell out of the County , unless it be in grand Assises .

Artic . super chart . cap . 9. 34. E. 3. cap . 4. Juries shall be made of the next people of the County .

11 H. 6. cap . 1. None dwelling in Stews shall be of a Jury .

9 E. 3. cap . 4. A Deed pleaded in a Franchise shall be tried in the County where the action is brought .

2 E. 6. cap . 24. Upon stroke or poyson in one County , the party dying in another , an indictment and tryal may be in the County where he dyeth . And an appeal sued there , and tried by twelve men of the same County .

Likewise the accessaries in one County to a Murder or Felony in another County , shall be indicted , arraigned , &c. in the County where the offence of accessary is done .

33 H. 8. cap . 20. Indictment of a person Lunatick , being at the time of confession of Treason before the Council , of perfect memory , and so certified by them , shall be tried by Free-holders of any Shire to be appointed by commission . And the tryal whether he be culpable or not , shall be there in his absence .

13 H. 8. cap . 23. Confession of Treason Misprision of Treason , or Murder being made before the Council , or three of them , or they vehemently suspecting one of such an offence , it shall be inquired , heard , and determined by Commission out of the Chancery , in the Shire or place limited in that Commission , by such lawful persons as shall be returned ; wherein no challeng for the Shire or Hundred shall be allowed .

28 H. 8. cap . 13. and 27 H. 8. cap . 4. All Treasons , Felonies , Robberies , Murders , and Confederacies within the Admirals Jurisdiction shall be inquired and determined in such form of Law as if it were done upon the land , by Commission directed to the Admiral and three or four other assigned by the Lord Chancellor in the Shire limited in their Commission , where no challeng shall be for the Hundred .

32 H. 8. cap . 4. The indictment and arraignment of treasons and misprision of treasons in Wales , or else where the Writs out of the Chancery of England run not , shall be in such Shire , 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 inquired , 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 And 2 Ph. and Mar. cap . Trials for Treason shall be according to the course of the Common Law .

23 E. 3. cap . 3. No indictor be put in Enquests upon the deliverance of Indictees of Felonies or Trespass .

Westm . 2. cap 38. None shall be put in Assises or Juries triable in their own Shire , but such as have 20s . a year Free-hold , not in assises triable out of their own Shire , unless they have 40s .

21 E. 1. De ponend'in Assisa . None shall be put in assises triable out of their own Shire but such as have lands to the yearly value of a C. s . nor in assises triable in their own Shire , unless they hav 40s.

2 H. 5. c . 3. None shall pass in an Inquest upon the tryal of the death of a man , nor between parry and party in plea real or personal , whereof the debt and damages amount to 40 marks , unless he have Lands of the yearly value of 40s .

33 H. 8. c . 13. In Cities , Boroughs , or Corporate Towns , an Inhabitant being worth 40l . in goods , shall be admitted in trials of Murder and Felonies in every Session and Gaol-delivery for that Town , though he have no free-hold .

35 H. 8. cap . 6. Made perpetual .

2 E. 6. c . 32. The cause of having 40 s . value , must be inserted in the venire facias ; and be of Lands out of antient demesne . Where that clause needs not , the Jurors must dispend some Land of Free-hold out of antient demesne within the County where the issue is to be tried .

27 El. c . 6. Where the Jurors returned in the Kings Bench , Common place , Exchequer , or before Justices of Assise , ought to have 40 s . Free-hold , there they shall from henceforth have 40 l. yearly Free-hold out of antient demesne , in the County where the issue is to be tried . And the clause thereof inserted in the venire facias . These two Statutes extend not to Corporations .

27 El. c . 7. No Bayliff of Liberty shall return to the Sheriff , or deliver unto him the name of any person to be returned in a Jury without some addition whereby the party may be known . Neither shall the Jury , &c. return any Juror out of a Liberty without some addition whereby he may be known , nor within a Liberty with other addition than that is delivered unto him by the Bayliff , &c.

8 H. 4. cap . 3. Every Juror returned within the County of Middlesex shall be called the fourth day of their return , 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 Juror taking of the one part or of the other , shall never be of Jury more , and besides imprisoned .

34 E. 3. cap . 8. The party or any stranger may sue him for it .

38 E. 3 cap . 12. And both the Jurors and embraceors to procure it , being thereof attainted , shall pay ten times so much as he hath taken .

Westm . 2. cap . 30. Assises of novel disseisin , Mortdancester , and Attaints , shall be taken thrice a year by two Justices assigned , associated with one or two discreet Knights in the Shire where they come .

In every Shire before their departure they shall appoint the day of their return : And adjourn the Assises if the taking be by any means deferred .

Also in assises of mortdancester being respited , they may adjourn into the Bench if need be . And when it cometh to the taking of the assise , the Justices of the Bench shall send it back again to them .

All Pleas in either of the Benches that require small examination shall be determimined before them .

27 E. 1. cap . 4. Statutum de finibus levatis . Such Inquests being taken , shall be returned into the Bench , and there Judgment shall be given .

Inquests and Recognisances determinable before Justices of either Bench : shall be taken in vacation time , before any of the Justices before whom the plea is brought , being associate to one Knight of the same Shire , where such Inquests shall pass , unless it require great examination .

12 E. 2 cap . 3. Stat. Eborac . Inquests in pleas of Land ( that require no great examination ) shall be taken in the County before a Justice of the place where the plea is accompanied with a substantial man in the County , Knight or other , so that a certain day be given to the Bench , and a certain day and place in the Countrey , in presence of the parties demanding of the same .

Inquests in pleas of Land that require no great examination , shall be taken in the Countrey , ( in manner abovesaid ) before two Justices of the Bench .

2 E. 3. cap . 17. All such Inquests in plea of Land shall hereafter be taken as well of the request of the Tenant , as Demandant .

42 E. 3. cap . 11 Nisi prius shall not be granted before the name of the Jurors returned .

7 R. 2. cap . 7. In all manner of pleas where a Nisi prius is grantable of office after the great distress returned and thrice served before the Justices against the Jurors , and thereupon the parties demanded if any of the said parties will pursue , or if the parties refuse to have Nisi prius in the case , then at the sute of any of the Jurors that is present a Nisi prius shall be granted for ending of the quarrel .

14 E. 3. cap . 16. The Nisi prius in the Kings Bench shall be granted before a Justice of that place , if any Justice of that place may well go into those parts . Else before a Justice of the Common place , &c. otherwise the chief Baron being a man of the Law , if , &c. or else before the Justices assigned to take assises in those parts . So that one of them be a Justice of one Bench or other , or the Kings Serjeant sworn .

18 Eliz . cap . 12. The chief Justice of England upon issue joyned in the Kings Bench or Chancery , and the Chief Justice of the Common Pleas , and chief Baron of the Exchequer , upon issues joyned in their several Courts ( or in their absence two other Justices or Barons ) or made Justices of nisi prius for the County of Middlesex , in all issues joyned to sit in Westminster Hall within the Term , or four day after .

4 E. 3. cap . 11. confirmed . 7. R. 2. cap . 15. Justices of nisi prius shall inquire , hear , and determine , as well at the Kings suit as the parties , all maintainers , conspirators , makers of confederacy , & committers of Champerty , and all other things contained in the said Article , as well as Justices of ●yer should do , if they were in the same County .

14 H. 6. c . 1. Justices of nisi prius have power in cases of Felony and Treason as tell upon acquittal , as attainder , and thereupon to award Execution .

Stat. Eborac . 12. E. 2. cap . 2. Upon a deed denied where witnesses are named , process shall be awarded against the witnesses , if they come not at the grand distress , or upon a nihil non inventus returned , yet the taking of the inquest shall not be deferred . If he come at the grand , and the inquest remaineth untaken for some cause , the witnesses shall have idem dies , and not appearing , then the first issues returned on them shall be forfeit , and the inquest taken , notwithstanding their absence .

An Inquest shall be taken notwithstanding the absence of witnesses dwelling in a Franchise where the Kings Writ runneth not . Four of the Iury must also be of the same Hundred , 7 H. 4. 17. 36 H. 8. Dy . 61. and so many are enough though it be in an attaint where the Jury is 24. In an information upon the Statute of plurality of Farms , for having seven Farms in seven Towns in four several Hundreds : If four of the Jury have any thing , or dwell within any of the four several Hundreds it is sufficient .

Statutes .

15 H. 8. c . 6. Made perpetual . 2 E. 6. cap . 32. Six sufficient Hundreds shall be returned in every Jury .

27 El. cap . 6. If two sufficient Hundreds appear in any personal action , it is enough .

If the thing in issue lye in the notice of two several Counties , and not of one only , for 15 Eliz . only two Counties may joyn , and no more . And two may though they be not the next , as Kent and Devon-shire , the Iury shall be made 49 ass . Pl. 11. equally out of both : That is , six out of the one , and six o●● of the other . And this we call a joynder of Counties , as in 49 E. 3. 19. 21 H. 6. 3. an action of Trespass , if the Defendant justifie for common appendant to Land in another County , or in a writ of annuity and Count of a seisin in another County then where the Church is , out of which the annuity goeth .

Statutes .

7 R. 2. cap . 10. An assise of novel dis●●s● of Rent out of the Tenements in di●ers Counties , shall be in the confine of the 〈◇〉 Counties .

But upon an indictment of an offence ●●●inst the Crown , 4 H. 7. Coro . 60 6 H. 7. 10. the tryal shall never 〈◇〉 by joynder of Counties . Therefore an I●dictment that one stroke J.S. in one County , of which stroke he died in another County , is no good Indictment , because it cannot be tried , for that the Counties cannot joyn in an indictment . And therefore be●●re the Statute 2 and 3 E. 6. ( which al●●reth the Law in this case ) they were wont ●o carry the Corps into the County where ●e stroke was . But otherwise it is in an appeal .

But if the Defendant plead in any ●●tion , as in a homine replegiando , or though it be but in a Writ of Trespass or Debt , 19 H. 6. 18. by the common law 40 E. 3. 36. ●●●t the Plaintiff is a villein regardant 〈◇〉 a Manor of his in another County , yet 〈◇〉 same shall be tried in the County ●●ere the Writ is brought . And this is in Ferorem libertatis .

28 E. 3. c . 1. confirmed . 6 H. 6. c . 28. in every sute between an Alien and a De●esne , ( though the King be a party ) the one half of the Jury shall be the Aliens . If so many be in that visne , and if there be not to that number , then so many as be there not parties , nor with the party to the sute .

Where a Peer of the Realm is party to the action , 2 Mar. Pl. 117. a Knight must be returned to the Iury .

Statutes .

Magn . chart . cap . 29. A Peer of the Realm upon an indictment of Felony or Treason shall be tried by his Peers .

20 H. 6. cap . 9. Dutchesses , Baronesses , Countesses , sole or married , shall be tried ( in such cases ) as Peers of the Realm . I● a Court of Pipowders the trial is by the Merchants . Proveable of the Stat. 7. E. 4. c . 2. so reciteth it . 39 E. 3. 2. 1 Mar. Dy . 98. There must be twelve beside the four Knights Brat . 42.

The Iury in a Writ of right is called the grand Assise . Being four Knights , 〈◇〉 other in default of Knights chusing a Iury of 12. unto them . So note 16. in all , see the grand Jury is always about 12 , 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 12.

Challenges are here allowed for the parties ( if they will ) both to the array a●● to the polls . And whether to the pannel 〈◇〉 the pols , are to be tried by some of the Iurors , if it be 27 H. 8. 26. before any Iuror swor● the Court shall choose the Triors , whe● any Jurors are sworn , they must try it .

Challeng to the array is when the Iury is not sufficiently impannelled up●● just cause of challeng to the Sheriff , and ●●●erwards to the Coroners , 14 H. 7. 31. 4 H. 7. 3. who by reason ●f just exception against the Sheriff made it should make the array , the 8 H. 6. 12. 15 E. 4. 24. Court ●●st chuse certain named Esloiers 15 E. 4. 8. ●here the parties shall never have challeng to the whole array . Challeng to the ●●ll is when any of the Iurors are insuf●●●ent to pass upon the trial . 27 H. 8. 26. This challenge must be taken before the pannel be perused : For if the Plaintiff challenge one , and when the panel is perused , the Defendant challeng the same person , yet the ●laintiff may release his challeng , and then ●●e Juror shall not be drawn , because the ●efendants challeng is nothing worth , in ●●at it was not made till the panel was pe●●sed , and shall be tried by two of the Iurors chosen by the Court , 27 H. 8. 26. against whom 〈◇〉 challeng shall be admitted , but challeng - 〈◇〉 that sound not in reproach of the juror , 〈◇〉 to be 49 E. 3. 1. of council with the party , or 3 H. 6. 36. within his distress , to have 19 H. 6. 9. nothing ●●thing the Hundred , or 21 H. 7. 29. 27 H. 8. 26. not sufficient free-hold , shall be examined upon his ●●th , which we call an examination upon a ●●yri dire . He that challenged the array if it pass against him , or ( which is as strong ) she release it , shall never challeng the polls without shewing cause presently , ●hich shall be tried out of hand . Before the Clerk pass through the pannel . 7 H. 4. 46. 7 E. 4. 17. So shall not any other challeng . And after thalleng to a Iuror for one cause , as favour , &c. which . passeth against the challenger , he shall n●● challeng him for another , as for having nothing in the Hundred , &c.

In indictments and appeals of Felony the Defendant may challenge 35 Iurors without shewing cause , Stam . 157. b . Do . St. p. Br. Chal. 11 in an appeal . which is called a peremptory challeng .

Statutes .

22 H. 8. cap . 14. No person arraigned for any petty Treason , Murder , or Felony shall be admitted to any peremptory challeng above the number of twenty .

20 E. 4. 11. Stam . 159. e . When there lacketh some to fill the Iury , as the greater part being returned dead , or not appearing . But if all the pols be challenged and drawn , there no tales shall be , b●● a new venire facias for tales referred to ( quales ) some like thing , other of the sa●● sort shall be taken , for there may be ma●y tales one after another Stam . 155. e . till it be full , which we call a Tales , which must be 〈◇〉 Bract . tales . 11. even number 37 H. 6. 12. less than the prin●●pal panel , As a decem tales , octo tales , & ● or in an attaint where the Jury is 24. 20. Tales , &c. And 14 H. 7. 2. every tales must be 〈◇〉 a less number than other . As after a● Octo tales , a Sex tales , but not a decem tale● nor an Octo tales again .

Statutes .

35 H. 8. c . 6. Made perpetual . 2 E. ● . cap . 32. A Tales may be made up before Ju●●●ces of Assise or Nisi prius ofable persons of the same County , then present at the prayer of the Plaintiff or Demandant .

4 And 5 Ph. and Ma. cap . 7. So for the King upon request by any authorised thereunto , or assigned of the Court , or by the party that followeth upon a penal Statute as well for the King as for himself .

15 El. cap . 9. Such a Tales de circumstanti●us before the Justices of Nisi prius shall be granted at the prayer of the Defendant or ●●owant .

But in Indictments and Appeals that ●●ch life , 14 H. 7. 7. a Tales may be of a greater number than the principal pannel . As a 40 Tales or as many as the Court will award , and that is in respect of the peremptory challenge of 35.

The Iury being charged , may neither ●●t nor drink ( but by leave of the Iusti●●s ) before their verdict given , 20 H. 7. 3. 6 H. 8. Dy . 3. and doing 〈◇〉 before they be agreed , it maketh their verdict void . After they be agreed it is ●●t fineable .

The Iury upon arraignment either it the 14 H. 7. 12. Kings sute 14 H. 7. ib . or in an Appeal acquitting one that was found guilty of the 13 E. 4. 3. 4 E. 6. 12. death of a man upon an inquiry 13 E. 4. ib . 4 E. 6. ibid . by the Coroners Super visum corporis must ●●nd who did the fact . But upon an Indictment 14 H. 7. ib . before the Sheriff or Justices of peace , for that is not of Record , as the finding before the Coroner is , 13 E. 4. ib . 4 E. 6. ibid . neither doth this take place in an acquitail upon an Indictment for the felonious taking of goods .

7 E. 6. Pl. 91. ibid . The Iury in an assise of Novel disseis● ( which are there themselves properly called an assise ) shall inquire of the plea in abatement , though the issue be joyned upon the seisin and disseisin . And therefore no plea in abatement is there answerable .

34 E. 1. De Conjunctim feoffatis . The defendant in assise alledging joyntenancy of his part with a stranger by Deed , the Plaintiff may aver him to be sole tenant ; whereupon Process shall be made against both the defendant and the stranger . And if a● the day both of them justifie the feoffment , they shall maintain the exception , and further answer to the Assise , as if the original had been purchased against him joyntly . If the exception be proved false by the Assise , they shall have a years imprisonment , though the Assise pass for them . I the Defendant absent himself at the day , the Assise shall pass against him by defa●● , though the stranger appear and Justif●e the Deed . Whether both , or one a●pear , if it be found by the Assise that the Exception was truly alledged , the As●●● shall pass no farther , but the Writ sh●●● abate . Such an Exception shall not be alledged by the Bayliff of any Tenant . The like processes in assises of Mortdancester and Juris utrum .

An Infant bringing an Assise , if a matter en fait , that is , 11 Ass. pl. 6. done in the same County be pleaded against him , whether in Abatement , as in an assise of Rent , that he had made his plaint of the same land whence he supposeth this Rent to be issuing : or in Bar 48 E. 3. 33. as the Deed of his Ancestor , with warranty , the Iury shall inquire of all the circumstances . Otherwise it is a Writ 9 E. 4. 34. of entry sur disseisin , or other 48 E. 3. ib . Praecipe quod reddat : for there the point put in issue and no other , shall be tried by the Jurors . Otherwise it is also in an Assise upon pleading a recovery 48 E. 3. ib . against him , or other matter of Record : in that case he must answer , and the Jury shall not inquire of the circumstances , for the Court shall plead and maintain for him .

The like inquiry of the circumstances ●●all be , if in an assise brought against ●im he plead to the assise at large . 28 Ass. pl. 21. Other●ise it is if he plead in Bar , for there if the ●laintiff make himself title as by a statute ●erchant , &c. and the Infant traverse the ●●e which is found against him , the Plaintiff ●●all have judgment without inquiring of ●●e circumstances , because the issue is taken ●t of the point of the assise , and therefore ●●all one as if the Infant were of full age . So ●●●t it is better for an infant to plead unto ●●e assise at large , than otherwise .

Old N. B. 104. The form of an Assise of novel Disseisin , it this , Rex vic' salutem . Quaestus est nobis A ▪ qd . B. injuste , & sine judicio disseisivit eum de libero tenemento suo in N. infra triginta annos jam ultimos elapsos . Et ideo tibi praet ' qd si praedict ' A. fecerit te securum dè clam● su pr'os tunc fac ' tenement ' , illud reseisum de catallis quae in ipso capt ' , & ipsum ten ' cum catall . esse in pace usque ad proximam assisam , c●● Justic ' nr'i in partes ill ' venerint . Et in eari● fac ' 12 liberos & legales homines de visam illo videre tan ' illud , & nomino eorum imbreviari fac ' Et sum ' eos per bonos sum ' qd sint cora● praefat ' Justic ' nr'is ad praefatam assisam p●rati inde facere recogn ' . 14 El. D. 310. for all . Et pona per vadian & salvos pleg ' praed . B. vel balivum suum si ipse inventus non fuerit qd tunc sit ibi ad illud recogn'auct ' . Et habeas ibi summ ' nomina pleg ' : & hoc breve . Teste , &c.

40 E. 3. 48. 39 Ass. pl. 31. If the Tenant in a Mortdancester ( be it Tenant of the Land , or Tenant by his Warranty ) traverse any point of the writ , as the dying seised of his ancestor , &c. which goeth in abatement of the writ , yet the Iury shall inquire of all the points , as whether the demandant be next heir , and whether his Ancestor died within fifty years , &c. and any one found against the Demandant abateth the writ . But a plea in bar of the assise by matter of record , release , collatteral warranty , or such other matter as is out of the three points of the Assise , is peremptory to the Tenant , if it pass against him . And 〈◇〉 such a Plea in Bar be found again●● the Tenant , and yet the Jury inquire further and find one of the points of the Writ against the Demandant , as that his Ancestor died not seised , &c. he shall recover notwithstanding that , for such an inquiry should not be upon a plea in Bar . Dyer thinketh it to be so likewise , where the Tenant voucheth , and the Demandant doth counterplead the voucher , viz. that in that case though the counterplea be found for the Demandant , yet that all the points must be inquired and found for the Demandant , or else he shall not recover . But Fitzherbert thinketh otherwise in that case , because it is a plea in Bar , and not to the writ .

For the Iuries direction in their verdict greater liberty is permitted in pleading , and matter doubtful in Law , 9 E. 4. 33. for a Traverse 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 traversing that he is not Executor , for the Lay-people know no difference between one administring as Executor , and one administring as Administrator .

The special matter may be pleaded together with a general issue , &c. 9 H. 6. 38. As that the Obligation put in sute , was sealed by him and delivered to A. to keep till certain Indentures were made between the Plaintiff and him , before which Indentures made , the Plaintiff took the Obligation out of the possession of A. So is it not his deed . This is good , and yet by this general conclusion the matter precedent shall not be waved , for it were perillous to put the special matter in the mouth of the Lay-people .

The Count may be abridged before verdict , so as the original remain true , as in an assise of his Free-hold , 14 Ass. Pl. 9. 4 E. 4. 33. 14 H 6. 4. and make his plaint of Land and Rent , he may abridge it for the Rent . In an assise of his Free hold in D. and demand two Manors in D. he may abridge his plaint for one . But being of his Free-hold in D. and S. and demand one Manor extending into both , he cannot abridge either of them , 10 El. Dy . 172 for then the writ remaineth not true . In a writ of waste and assign it among other things , in racing of a Copper fixed to the soil , he may abridge the wast assigned in that , so as thereby he falsifie not his writ . But if the writ be Quare vastum fecit in domibus boscis & gradinis , 39 E. 3. 10. he cannot abridge the waste supposed in domibus . In a writ of ward De custodia terre & heredis , and Count of the Manor of D. and 15 Acres of Land , which in truth are parcel of the Manor , and pleaded by the Defend . in abatem . of the writ : he may abridge his demand of the 15 Acres . In trespass de bonis & catallis captis , and count of money taken away ( for which this form will not serve , the money must needs be expressed in the writ ) he may abridge the count touching that . 39 E. 3. 20. Br. abridg . 111.

Statutes .

21 H. 8. cap . 3. The Demand of a thing intire may be abridged before verdict , though thereby the writ become false . After acquittal upon an appeal or indictment of Felony or Treason , he shall never be drawn in question for the same offence again . Therefore upon an Indictment of Man-slaughter or Murder , 22 E. 4. Cor . 44. the Justices ( by discretion ) were wont not to proceed to arraignment till the year and the day were past , for otherwise if he should be acquit upon his arraignment , the parties appeal were lost .

CHAP. 37. Of Trial by Battail .

IN Old Na . Br. 1 writs of right , and in appeals

See the manner of waging battail & performing it . 9 H. 4. 3. in an appeal of robbery .

17 E. 3. 2. in an appeal of murder .

that touch life , trial may be by Battail at the Defendants choice . Therefore Old N. B ib . 9 E. 4. 35. the Demandant in a Writ of right , had need always to have his Champion ready , else he may happen to be deceived .

The battail in a writ of right must be all by Champions . Therefore in a writ of right an Infant may joyn the Mise and try it by battail . So can he not in an appeal , for there it must be done in proper person : which Champions must be Br. Chal. 196 free-men not villeins , and 3 H. 6. 55. so is the issue taken that he is ready to defend it by the body of J. S. a Freeman . Therefore Bractod . for the Lord to offer his villein for his Champion , in a Writ of right , Westm . 1. Cap. 40 so reciteth it . or in an appeal , is a manumission of him . And the Demandants Champion must have seen him or his Ancestors in possession , and thereof take his oath .

Statutes .

Westm . 1. cap . 40. Touching the Oaths of the Champions it is thus provided , because it seldom hapened , but that the Champion of the Demandant is forsworn , in that he sweareth that he or his Father saw the seisin of the land or his Ancestor . And that his Father commanded him to dereign the right , that from henceforth the Champion of the Demandant shall not be compelled so to swear .

The battail in an appral must be in proper person . 9 E. 4. 35. And therefore there the Defendant is restrained from the choice of battail , and must needs try i● by Jury . If there be any notorious presumption of the fact in him , as that he brake Prison , or escaped by flight being led towards Priso● for it , 1 ass . Pl. 6. or was 22 E. 4. 19. indicted for it . So in an appeal of Murder , that he was taken in the act with a 6 H. 3. Coro 411. bloody knife , in an appeal of Robbery , that upon fresh sute and hue and cry he was taken with the manner , having some of the money about him , 22 E. 4.29 . or of ●●decillity in the Plaintiff , as if he be maymed , or within age , &c.

But against a Peer of the Realm bringing an appeal , Discourse of the Cust . of London , fol. 13. Stam . 108. the Defendant shall not wage battail , much less against the King , either upon an indictment or appeal . 6 Ric . 2. cap . 6. Ousleth battail in an appeal of Rape .

CHAP. 38. Of Trial by Witnesses .

IN a writ of dower issue taken upon the death of her husband shall be tried by witnesses . So shall no other case in the Law . 8 H. 6. 23.

CHAP. 30. Of Trial by wager of Law .

IN some Cases also the trial shall be by the Defendants oath , which we call waging of his Law . 22 H. 6. 41. As 1 where the Tenant in a praecipe quod reddat alledgeth that he was not lawfully summoned according to the Law of the Land , 2 in ●eer personal contracts , we call them simple contracts , as 1 H. 6. 1. debts for money lent , or rent upon a lease for years of a stock of sheep , or such like : ( but 9 E. 4. 1. not upon 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 intire contract ) detinue of a Horse , 34 H. 8. Br. leygager 97. 18 E. 4. 23. 39 H. 6. 35. 27 H. 8. 22. or other personal thing : but not of a deed indented , or obligation , or of a lease for years of land , nor in an action upon the case , for it is not by reason of any contract growing without deed , for in debt upon sale of a horse for 10l . if the Plaintiff have a specialty of it , he shall estop the Defendant to wage his Law . But upon detinue and Count of a Baylment by deed , yet the Defendant may wage his Law , for detinue is the cause of the action , which may be discharged by matter en fait , as the Defendants re-delivery , or the Plaintiffs taking of it back again , &c. or privity of others , 18 H. 3. for in detinue upon a Baylment by another mans hand , the Defendant may wage his Law , because he is not to answer to the baylment , but to the detinue . So in debt upon a contract by another mans hand : But not in account upon receit by another mans hand , for there he must answer to the receit : the Defend . may wage his Law . Therefore in such kind of actions Executors are not chargeable , 15 E. 4. 25. as in debt upo● sale of goods to the Testator , and 25 E. 3. 40 though the party have a tail ensealed of it , for that is no specialty : or for 11 H. 6. 48. wages due by the Testator upon a retainer . Otherwise it is in such an action brought by a Labourer ( who is bound by Statute to serve ) in 10 H. 6. Execut . 21. debt upon arrearages of an account made by the Testator before Auditors , ( who are Judges of record ) or Br. Execu . 33 upon a lease for years , though it be made without deed , for in none of these cases the testator could wage his Law .

Prerogative .

No wager of Law shall be against the King . 24 E. 3. 39. 18 E. 3. 4. Therefore in an attachment upon a prohibition the party shall not wage his law that he did sue forward contrary to the Kings prohibition , for the King is Quodamodo party of the contempt . And for this cause also , 50 E. 3. 5. debt upon a simple contract shall not be forfeit to the King by out-lawry , for then the party were in worse case then before , where he might have waged his Law .

Statutes .

Magn . chart . cap . 28. Wager of Law shall not be admitted without credible witnesses .

5 H. 4. cap . 8. In actions of debt upon the arrearages of an accompt fayling to the intent ( to put the defendants from their law ) that the same was found before their Apprentices or servants Auditors assigned in , shall be in the Judges discretion upon examination of the Atturnies , or whom e●●e they please to receive , or oust the Defendants of their Law .

3. In plaints in Court Barons for personal things under 40s . yet ( by prescription ) it may be by Jury : ●2 H. 7. 18. which is against the common course and order of it .

CHAP. 40. Of Demurrers .

7 E. 6. Pl. 85. AN Issue of the Law which we call a Demurrer , is when admitting the matters alledged either of them resteth in the judgment of the Law . The form of joyning a demurrer is , Et prad . quer ' dicit quod placitum praed . desinimus , sufficiens in lege existit ad ipsum , the Plaintiff , ab actione sua praed . &c. praecluden . quodque ipse ad placitum illud modo & forma placitatum necesse non habet , nec per legem terre tenetur respondere , unde pro defectu sufficient . respontionis petit Judicium , &c. Et praed . def . ex quo ipse sufficient . mater in lege ad praed . quer ' a● actione sua praed . versus eum habend . precludend . sup●rius allegavit quam ipse paratus est verificare , quam quidem mater praed . quer ' non dedicit , nec ad eam equaliter respondet , sed verificationem illam admittere recusat petit judicium , & quod praed . quer ' ab actione suo praed . versus eum habend . praecludatur .

This being joyned upon an exception ●ledge● original it self , 50 E. 3. 20. or count for some ●ledge● appearing in it , doth only drive the ●ledge●dant to make a better answer , ●ledge●h we call a respondes ouster , if it pass a●ledge●st him .

CHAP. 41. Of Appearance .

THus far concerning Pleading .

The other mean acts are Ap●ledge●rance , and Continuance , or Iudicial ●ledge●ess .

Appearance is the parties coming in●ledge●●he Court . Whereupon 12 H. 4. 24. 1 H. 6. 4. F. N. B. 25. a. 1 H. 6. ibid . Common ●y given the fourth day after the very ●y is allowed , and so are all entries , ob●ledge●it s● quarto die post . But is it not upon a ●●rtain day given unto him , as Monday , T●esday , or such like .

When the party for not appearing ●●●ld have some great loss or corporate ●●in , 48 E. 3. 1. as to have a Charter of pardon allowed where one before was out-lawed at 〈◇〉 sute , at a Sequatur sub suo periculo , when ●he appear not , the land is lost . 7 E. 4. 15. 8 H. 6. ihid . 3 H. 6. 14. in a reple●● , sicut pluries , when a Capias in Withernam is to go against him , &c. he may appear ●●●ugh the officers return force him not ●it , as if in the two first cases he return a nihil , or ( that the beasts be esloined ) in the latter .

8 H. 6. 8. 3 H. 6. 13. 3 H. 6. 50. 8 H. 6. ibid . 3 H. 6. 14. If the Plaintiff will not appear wh●● he is demanded at the day , which is calle● a non Sute , or say in Court that he will 〈◇〉 sue forwards , which is called a retraxit , and alwaies of record , this is peremptory , a●● loseth him his action . But in real actio●● brought by many , 10 Ass. Pl. 12. in an assise . Old N. Br. 46. if one will not prosecute the rest may alone . Except in the writ De nativo habendo , that is , favorem libertatis .

48 E. 3. 14. Br. Som . & Seu 9. 7 H. 6. 39 , 41. Br. default . 34. For executors also Summons and Severance lieth in personal actions .

If the Defend . will not plead , which i● a nihil dicit , this in all actions , real and personal , is peremptory , and loseth the actio● .

So in personal actions if he appear , and the 7 H. 6. ib . same term or otherwise , after 38 H. 6. 33. plea or 18 E. 4. 7. demurrer joyned make default . And this default shall never be saved , how good cause soever he have to excuse it , as fall of waters , imprisonment , &c. for 〈◇〉 appear and plead , and not to maintain 〈◇〉 is a kind of nihil dicit . But either of t●● parties may for once , 9 H. 5. 5. 35 H. 6. 33. for ones common essoyne lyeth not after another without me●● degrees be excused of appearance , by an essoyn which lyeth not for him that appea●eth in proper person ( for it is to excuse 〈◇〉 absence , whereunto his presence is contrary ) nor that commeth in by exigent , or Cepi ●●pus ( for he abideth in ward , or by mainprise and therefore cannot make default ) if they ca●● an essoyne , that is to say , 18 E. 4. 4. demand it the ●ledge●rst day , or any of the four days , unless ●ledge● other cast an exception , that is to say , ●ledge●er an exception that no essoyne be re●ledge●shed . And the fourth day the essoyn must ●●●her be allowed ( and then it is said to be ●●judged and adjourned ) or disallowed . ●et upon every mean appearance a new ●ledge●yn lieth , 27 H. 6. 2. 21 E. 4. 16. though one were cast before ( for the Plaintiff and the Defendant if they list , may fourch infinitely by the Com●on Law . 39 H. 6. 29. ) As after issue upon a custom ba●●●rdy , or ne unque accomple en loyal matrimo●y , at the day of the certifying the Defend . nay cast an essoyn : after essoyn of the Demand . if the Tenant at the second day be essoyned , and at the third day demand the ●●ew , and hath it . 27 H. 6. 2. Now at the day after the ●●ew , he may be essoyned again , and at the day after that the Demand . upon a wager of saw in debt , and day given to do it , if the Plaintiff be essoyned at the day , and at the day given by the essoyn the Defendant be es●●yned , now the Plaintiff at the day may ●e essoyned again .

And this is called essoyn de male venir , or ●●e common essoine . Beside which es●●ines for special causes , as of being beyond Sea , going ad terram sanctam , of the Kings service , and de malo lecti are allowed . And have 27 H. 6. 1. a year and a daies adjournment , whereupon an 2 E. 4. 16. oath must be taken that the cause is true .

But no such special essoine lieth in an assise 21 H. 6. 42. of novel disseisin , 44 E. 3. 15. dower , 27 H. 6. 1. assise of darrein presentment , and Qua● impedit , for then the six months would pa●● and so the Church come in Lapse , for such essoins must have a year and a days adjour●ment . But a common essoyne lyeth in all those caces .

Statutes .

West . 2. cap . 12 , In an appeal of the death of a man no essoyne shall lye for the Appellor , for whatsoever cause , in whatsoever Court the appeal be .

Westm . 1. cap . 41. In assises and J●i utrum after that the Tenant hath once appeared , he shall be no more essoyned .

Westm . 2. cap . 28. In like manner i● shall be touching Demandants in an assise .

Westm . 1. cap . 42. Parceners and Joyn-tenants in a praecipe against them shall have 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 Executors , they nor any of them shall have but one essoyne before appearance , that is to say , the summons or attachment , nor but one after appearance .

Westm . 2. cap . 27. None allowed after the day given by Praece partium , in the where the parties consent to come witho●● essoyne .

Marleb . cap . 13. After a man hath p●● himself upon an inquest , he shall have but one essoin .

Westm . 2. cap . 27. After one hath put himself upon an inquest , an essoyne shall be allowed him at the next day , but never after , whether he were essoyned or not .

Mar. cap . 19. None shall need to swear to warrant his essoyne .

West . 1. cap . 43. The Demandant may aver against an essoyne ( before Justices ) of being beyond Sea , that the Tenant was within the four Seas the day that he was summoned , and three weeks after .

Westm . 2. cap . 17. In an essoyne De malo lecti , the Demandant may aver by inquest that the tenant is not sick , nor in such plight , but he may come before the Justices . Such an essoyne shall not lye in a writ of right between two claiming by one descent .

5 E. 3. cap . 7. Essoyne of the Kings service , nor protection shall not be allowed in writs of attaint .

12 E. 2. Stat. of essoynes . See many particular cases where essoynes lye not .

CHAP. 42. Of Continuance .

COntinuance is from day to day till the end of the Sute , else 54 E. 3. 48. 11 H. 7. 5. if the Plaintiff do nothing , it is called a discontinuance : if an error be in the continuing , as by awarding a Capias where a distress should be , it is called a miscontinuance .

Statutes .

21 H. 3. De anno Bissextili . The day increasing in the leap-year shall be reckoned of the same month wherein it groweth , and that and the day going before shall be accounted for one day .

51 H. 3. Dies communes in Banco . Daies shall be given in writs nine returns , as coming in Michaelmas Term , from Octab . Mich . to Octab . Hillarii , &c.

51 H. 3. Dies communes in Banco , and 32 H. 8. cap . 21. Common days shall be given in real actions nine returns . In Writs of dower five returns .

Marleb . cap . 12. In dower unde nihil habet , four or six daies shall be given in the year .

In Assises of Darrein presentment , and Quare impedit , from fifteen to fifteen daies , or from three weeks to three weeks , as the place shall be near or far .

5 E. 3. cap . 6. and 7. In an attaint five daies shall be given at the least .

3 H. 6. 40. Little . The sute of an excommunicated perso● shall be put without day , term paroll sa●● Jour till he be absolved . And so is it in all other cases which happen without the Plaintiffs folly , as by the demise of the King , ( so we call the death of the King , because in Law he never dieth , but leaveth his Crown to another ) non venuunt . of the Justices , cestor of the eyer , protection , &c.

Statutes .

1 E. 6. cap . 7. By the death of the King no action , sute , bill or plaint shall be discontinued , or put without day . But the process , pleas , demurrers , continuances , shall stand good , and be prosecuted in such manner and form , as if the same King had lived . After continuance taken , the Def . may for once leave his former plea , and plead any thing growing since this latter continuance , which we call a plea puis darrein continuance . As if the Defendant in an action of account plead receit of parcel by the Plaintiff who wageth his Law : 21 E. 3. 49. now at the day which the Plaintiff hath to perform his Law , the Defendant may plead a release puis darrein continuance .

Continuance is by process , 21 E. 4. 16. 7 H. 6. 39. 41 Br. default . 34. or upon the Roll . That upon the Roll is a D●es datus or emparlance Dies datus when the Court giveth the parties day , and therefore in a personal action the Defendant shall not be condemned by default after such a continuance : for it is the act of the Court , and he doth not demand day as upon an Emparlance , and this is always before the Count . 18 H. 8. 6. 41 E. 3. 1.

Such a continuance by assent of both the parties is called a Praect partium . So as if the Defendant come upon the exigent by a reddit se , Br. Contin . 14. and be by mainprise , yet the Plaintiff may have day by prece partium , notwithstanding that thereby the Defendant shall be let out of ward , for it is by assent of the parties .

22 H. 6. 12. But in assises the continuance is by a Justiciarii nondum avisantur , and not by a Dies datus .

7 H 6. ibid . Emparlance is when the Defend . demandeth day to see if he may end the matter without further sute , which he may do once , but not oftner without the plaintiffs consent : and is always after the Count . After which he cannot plead to the Iurisdiction , 8 H. 8. 6. person , or in abatement either of the Count or writ For 22 H. 6. 7. after emparlance a Supersedeas of priviledge out of the Chancery shall not be allowed : he cannot plead that the Land is within the five ports of ancient demesne , &c. or that the Plaintiff is a villein , or 4 H. 6. 67. 16 E. 4. 4. 32 H. 6. 33. outlawry in the Plaintiff in debt upon a simple contract , or in trespass of battery or false imprisonment . ( But in debt upon an obligation he may , for that is to the action , inasmuch as the King is to have the debt ) or that the Plaintiff is an alien , 13 H. 7. 17. viz. to the person in an action of trespass to his house broken down , but to the action he may : Nor misnomer as no such Town of D. where he is named J. S. of D. But where a praecipe quod reddat is brought of the Manor of D. in D. there he may , 32 H. 6. 27. for there it is in bar , or in an action of debt against an Executor that he is an administrator , and not an Executor . But that he never was Executor , never administred as Executor he may , for that is to the action , nor demand oyer of the obligation , 4 H. 7. 10. or such like , but he may plead variance after , and so come to have a view of the Obligation and Condition thereof , whereby to plead any matter in bar .

But after a special imparlance Salvis omnibus advantagiis , 4 H. 6. 67. Br. Contin . 6. he may plead to the Count or writ and have oyer , but yet not in that case plead to the Jurisdiction or person .

In an appeal of Robbery , or such like , 22 E. 4. 19. that toucheth life , if the Defend . plead a plea whereby his life should come in jeopardy , the Plaintiff shall not imparle unto it , but must answer Sedente curia .

Default after imparlance , that is , at the day given by the imparlance is peremptory , 38 H. 6. 33. 1 H. 7. 11. Br. default . 34. 39 H 6. 16. 38 H. 6. 33. and loseth the action in all actions whatsoever , real or personal , for it is a departure in despight of the Court . As in de●t , trespass , or such like , the Plaintiff in this case shall recover his damages in a praecipe quod reddat , if the Tenant appear and imparle , 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 warranty and imparle , and after make default , the Demandant shall recover seisin of the Land against the tenant , and the Tenant over in value against the vouchee .

CHAP. 43. Of Mesne , Judicial process .

JVdicial Proc . is a Proc . out of that Court where the original is returned prosecuting the action . And therefore upon an original returned tarde , an alias and pluries shall go out of the same Court Teste the chief Justice , 22 El. Dy . for by the return the Court is possessed . But if no return at all be made , the alias and pluries shall go out of the Chancery , Teste Regem . This must be sealed with a seal Judicial , being in the custody of the Chief Justice of that Court .

Iudicial Process are mesne Process , or in nature of new originals .

Mesne Proc . which is for any necessary act to be done , not only for the Plain . against the Def . but for either of them against any other , whose presence in the Court may be necessary for them . 2 H. 6. 4. As against one that is vouched or prayed in aid of . So against Juries , Witnesses , &c. So to execute judgments given , or any thing else necessary for the trial of any of their allegations . Old N. B. 171.

Vpon a fine levied before it be engrossed the writs to compell atturnm . are per quae Servicia , Old N. B. 170. when the fine is levied of a seigniory .

Quem reddicum reddit , Old N. B. 170. when it is of a tent-charge , or rentseck .

Quid juris clamat , Old N. B. 168. when it is of a remainder or reversion .

Statutes .

23 Eliz . cap . 3. The entry of record of an Atturnment upon a fine shall be utterly void , except the party ( mentioned to atturn ) first have appeared in Court in person , or by atturny warranted by the hand of one of the Justices of one Bench or other , or of one Justice of assise , upon a writ of Quid j●ris clamat , quam redditum reddit or per quae servicia , as the case requireth .

In petitions , whether in Parliament , Stam . praer . 73. or elsewhere , and though the King have granted the lands over , or wheresoever the King being made party , may be at loss : as when he is prayed in aid of , in a praecipe quod reddat , or other real action against his lessee , but not in 27 H. 8. 28. trespass 15 Dy . 320 Ejectione firmae , or other 27 H. 8. ib . personal action , for there he is to lose nothing . A writ of search lyeth , which is to search in the treasury before the plea proceed , if by likelihood some matter may be there to maintain his title . As upon finding by office that A. died seised ( of certain Land holden of the King ) without heir , and a traverse 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 treasury , to prove whether A. had issue , no more if the Kings title be by an alienation in mortmain .

Statutes .

14 E. 3. c . 14. In a petition and search granted after four writs , whether any imminent or remembrance be found for the King , or not , the party shall be put to answer . So as every of the four writs be delivered to the Treasurer and Chamberlains forty days before the day of the return .

33 H. 6. 33 8 E. 4 4. for the D●murrer . 38 H. 6. ibid . In real praecipes where a free-hold is to be recovered on default , after plea , issue , or demurrer a petty Cape shall go forth in the nature of a grand Cape in all things , save that here the Tenant is to answer the default only , not to the demand also , as in a grand Cape . And therefore it is called a petty Cap● , and the other a grand Cape because there is a less in the one than in the other .

Old N. B. 179. So upon a voucher a petit Cape advalentiam . In those that are for other hereditaments , not in point of seigniory , as 2 H. 4. annuity , 42 H. 4. 1. Quare Imped●t , Quo jure Old N. B. 71 quod permittat , 30 H. 6. 8. 30 H. 6. ibid . &c. upon default as before , a distress shall go forth in lieu of a petit Cape . And both there , and upon view granted , day shall be given as in a plea of Land , for it is in the nature of a praecipe quod reddat , in as much as hereby he is to recover the land it self .

The Process against Iurors is first a Venire facias to the Sheriff to return them , at which day if they appear not , Old N. Br. 171 then a habeas Corpora .

And after that a distress infinite .

Statutes .

27 Eliz . cap . 7. No Juror shall be returned without the true addition of the place of his dwelling at the time of the return , or a year before , or some other addition whereby he might be known , nor no estrete shall be without such addition as is in the return .

35 H. 8. cap . 6. In every Habeas corpora or distringas with a Nisi prius at the first writ , 5 s . at the least shall be returned in issues upon every Juror , at the second 10 s . at the least , at the third 13 s . 4d . and ever afterwards the double of 13 s . 4d .

2 E. 6. cap . 32. If the principal Jury appear not fully at the nisi prius , those that make default , shall forfeit their issues , though the Jury be made up de circumstantibus .

Where in personal actions upon the defendants default , the Iury shall be taken which we call taking of the Jury by default : In an action of trespass always Br. default 58. whatsoever the issue be , 34 H. 6. 24. 2 H. 4. Br. enq . de dam . 11. release 9 H. 5. 15. Iustification , &c. So in 5 E. 4. 6. 1 H. 7. 1. debt , detinue , account , & the rest , which are for things in certainty , if the issue be taken upon a matter en fait only , as 1. H. 7. 1. payment , or that an 9 H. 5. 13. 42 E. 3. 1. acquittance pleaded in bar by the Defendant was made by dures . But if it be upon the acquittance it self , release or other matter in writing , the Plaintiff may there pray judgment if he will . But if he do not pray it , the Jury shall be taken by default , as in an action of Trespass .

The form of all these writs . Old N. Br. 106. in an assise of novel disseisin , and 25. in darre●n presentment But in assises of novel disseisin , nusance , mortdancestor , darrein presentm . and juris utrum , the original writ commandeth a Iury , as well as the Defendants , to be warned which Summons to the Jury serveth instead of a venire facias . So that the process here against the Jury is , Somon habeas corpora & Distringas .

And therefore thereupon default after that original process ended , viz. the Attachment in an assise of novel disseisin , and nusance , the summons and re-summons in a F.N.B. 196 g mortdancestor , darrein presentment , and (a) Juris utrum , F.N.B. 50. k . the inquest shall be taken by default , whether the default be presently after the resummons , or after esloin , or plea pleaded . As it should be taken if the Tenant did appear .

CHAP. 44. Of Judicial process in the nature of new Originals .

JVdicial Process in the nature of new Originals ( in none of which any freeholder shall ever be recovered ) but damages only , are these that follow . 17 E. 3. 76. First such as command to do something , as ,

1 Re-summons or Re-attachm . according as a Summons or Attachment lay in the first action , 5 H. 7. 40. to receive in the former plight a sute put without day . And may other revive the original alone , or the whole proceeding by special words , in that Resummons or Attachment , as if it be against the Tenant after a voucher , the voucher is not received , unless special mention be of the vouchee also , nor any plea at all is revived but the original only . But in every Resummons after an issue , the issue is revived for day is given to the Jurors expresly : So is all the pleading by a special Resummons , but no such Resummons , nor Reattachment shall be upon a discontinuance , though it be in a Writ of Ward , 24 E. 3. 48. Br. resum . 33. where a Resummons is given by the Statute , for upon a discontinuance the Original is determined .

F. N. B. 14. 2 All certificatory writs , as if in a writ of right close brought in antient demesne the tenant vouch a Foreigner to warranty , and after purchase a Warrantia Charta returnable in the Common place against the vouchee , and thereupon a Supersedeas to the Bayliff in antient demesne . Now if the plea of Warrantia charta be determined or discontinued in the Common place , the Demandant in the Writ of right close may sue a Writ out of the Chancery , directed to the Justices of the Common place , to certifie the King in his Chancery of it . To the end that if it be so , the Bayliff in antient demesne may proceed . So upon a Monstraverunt sued against the Lord in antient demesne and an attachment thereupon , F. N. B. 16. c . because he shall not be driven to answer to the attachment till the Court be ascertained whether the lands be antient demesne , or no : the Plaintiffs in the Monstraverunt must sue a special writ to the Treasurer , and Chamberlains of the Exchequer to certifie it . F. N. B. 52. In like sort upon an Indicavit purchased , because the Tythes amount to the fourth part of the value of the Church , the other may have 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 have a consultation . So upon Surmise made in the Chancery , F. N. B. 59. b . that the Kings Committee of a ward hath done waste , a writ shall go forth to the Eschetor to certifie the King thereof . And so in all other like cases .

3 Certiorari to remove a Record out of a Court of Record into the Chancery , 36 H. 8 Br. Cercior . 20. for ●o Record shall be removed into the Common place , nor no indictment taken in the Countrey into the Kings Bench immediately by any Certiorari , but first it must be certif●ed into the Chancery by a surmise , and from thence sent into the Common place , or Kings Bench , as the case is , by a Mittimus . 12 E. 4. 11. And every writ of Error is a Certiorari in it self .

4 To remove sutes out of Court Barons , for a Recordare , Pone , or such like , are to no other intent but only to remove somewhat into the Kings Court , 3 H. 6. 3. and are in the nature of a Certiorari . And upon the remove the recordare or pone is determined , for the plea shall not be holden upon them , but ●pon the plaint that is removed , and the first pledges shall stand . And these may be without shewing any cause in the writ , if the remove be at the Plaintiffs sute : but not without shewing good cause in the writ , if it be at the Defendants sute . As being to remove a plea in a writ of right to shew that the Bailiff is heir to the Land , Fitz . N. B. 4. b . or taketh upon him to maintain the matter to have part of the Land , or that the Tenant hath alledged bastardy , or pleaded a foreign plea , or joyned the mise upon the grand assise , Fit . N. B. 70. b . &c. being to remove a plea in a replevin , by plaint , to shew that the Defendant avoweth for damage fesant , and the Plaintiff justifietth by reason of Common of pasture , which is a plea touching Free-hold , and therefore should not be without Writ .

These are either to remove pleas by writ , or by plaint without writ , Of the first sort are a Tolt and Pone .

Tolt or Tollas is for the Plaintiff , but never for the Tenant to remove a writ of right out of the Lords Court into the County Court . Old N. B. 2. Fit . N. B. 4. a. And because this being at the Plaintiffs sute may be without any cause , Old N. B. ibid . therefore this clause is put in every writ of right patent , Et nisi fecer●s vice comes faciat . Pone is to remove into the Common place in all other cases , viz. F.N.B. 4. b.c. save only in the case of a writ of right to be removed out of the Lords Court into the County Court . As F.N.B. ibid . writs of right removed into the County Court by a Tolt F.N.B. 125. f In admeas . of pasture . Justices and Vicontiel Writs in the County Court , replevins by Writ either F.N.B. 69. m . there or F.N.B. 70. a in any other Court Baron . And all this indifferently

F.N.B. 69. m & 70. a. in a replev . & 125. f in admeas . of pasture .

Old N. B. 2. in a writ of right .

either at the Plaintiffs or at the Defendants sute . So upon a F.N.B. 77. e . nativo babendo sued in the County , if the Defendant alledg himself frank , the Lord is driven to remove it by a pone . But a pone to remove a replevin by writ out of any other Court Baron then the County Court , cannot be without shewing cause , though it be at the Plaintiffs sute .

Of the second sort are a Recordare , and Accedas ad Curiam . 3 H. 6. 30. In both which nothing but the plaint shall be removed F.N.B. ibid . ●●ough they be at issue .

Recordare F.N.B. 70. b . is to remove plaints in County Courts . Every F. N. B. 18. a. b . Writ of false ●ledge●udgment upon a judgment given in the County Court is a Recordare in it self .

Accedas ad curiam , is to remove plaints in any other Court Baron . F. N. Br. 70. b . & 18. d . F.N.B. 18. a Eve●y writ ●f false judgment upon judgment given in any other Court Baron then the County Court , is an Accedas ad Curiam in it self .

This also upon good cause shewed in the Writ , F. Nat. Br. 4. a. lyeth for the Tenant to remove the plea in a writ of right out of the Lords Court immediately into the Common place .

5 Mittimus to send a record out of the Chancery , whether being certified thither before by a Ce●tiorari , or howsoever else being there into another Court of Record , to the end they may proceed upon it . But the Chancellor may send such a Record by his own hands , without any Mittimus , F. N. B. 22. g . if it please him .

6 Procedendo to proceed in sutes . F. N. B. 3. e . As if the Lord upon a Writ of right sued in his Court will not hold his Court , the Demandant may have this Writ unto him , F. N. B. 17. h . if a man cause himself to be essoyned of the Kings service in any action where indeed he is not in his service , the Plaintiff or Demandant may have this Writ directed to the Justices commanding them to proceed . F. N. B. 24. So where the Justices in any Court delay the Plaint . or the Defendant , and will not give judgment for him where they ought to do it , the party grieved shall have a procedendo ad Judicium .

Old N. B. 32. Of this nature is a writ of consultation to proceed in the Spiritual Court , when one suing there for matters belonging to that Court , as for matters testamentary , or concerning Matrimony , &c. is by a prohibition restrained to prosecute the sute .

Statutes .

24 E. 1. De consultatione . A Consultation to be awarded by the Chancellor or Chief Justice of the King , upon fight of the Libel at the instance of the Plaintiff .

50 E. 3. c . 4. Upon a consultation once duly granted , the Ecclesiastical Judge may proceed in the same cause notwithstanding any other prohibition . So the matter of the Libel be not enlarged , nor otherwise changed .

7 A writ of Mainprise to set at liberty one bailable finding bayl , P. V. B. 249. g . that is to say , sufficient persons to be bound for him as surety to answer the action , which in respect of delivering him into the hands of his friends the Suretie is called Bayl , in respect of their taking of him is called Mainprise .

4 E. 6. Pl. 67. Such persons baylable be they which are taken upon a Capias original .

But not the Defendant in 6 H. 7. 1. c . West . 1. c . 15. Stam . 71. & 72. In case of the death of a man . appeal ●f Maym , if the Maym be haynous : nor the principal in an indictment or appeal of Felony , Stam . ibid . nor the accessary after attainder of the principal Div . of Courts fol. nor any in high Treason , where all be principals .

Statutes .

Westm . 1. cap . 15. Such as are accused of receipt of Felons of commandment , or force , or of aid in Felony done , and a man appealed by approver , after the death of the prover ( if he be no common Thief , or defamed ) shall be let out of prison by a surety .

8 Recaption is for him whose goods being distreined before for rent or services , but not for damage feasant : F N B. 71. c . Fit . ibid . ] for there as oft as they are found upon ones Land , it is lawful to distrein them . For every time is a new wrong , and a new trespass , Fit . ibid . 72. g . Fit . ib . 72. c . & 71. c . are distreined again for the same thing , hanging the plea in the County Court , or before the Iustices . Though the first distress were lawful , and though the rent or service were behind again , or not : for by the first distress he shall have a return till he be satisfied of all . Fit . ib . 71. b . Fit . ib . 71. i . And here the goods distreyned , must be the same parties goods . For if the Lord first distreined his Tenant , and after the beasts of a stranger , no recaption lyeth . But upon a distress of two mens beasts first , and after the beasts of one , Fit . ibid . 71. e . Fit . ibid . 71. f . it lyeth for that one : so upon a distress of beasts which a man hath in common with another , and after of such beasts as are his own alone . Also he that taketh the second distress must be the same party that distrained first : as if the Lord distrained first , and then his servant or Bayliff distreineth again by his commandment , or without his commandment , if he agree afterwards to it , as by joyning with his S●rvant or Bayliff when they pray in aid of him . Otherwise not , though the Bayliff make conisance in his right : for it may be he hath no notice of it : and the party hath remedy against the B●yliff if by an action of trespass . But this writ lyeth not after Non Sutes in the replevin , Fit . ibid . 71. d . because there the plea is not hanging : but before avowry in the replevin it doth , for the Plaintiff in the recaption may well count that the Defendant took them for the same cause : And that may make a good issue , which the Inquest may take notice of well enough by the evidence of the parties . Fit . ibid . 73. e . But upon a Replevin sued by plaint or writ in a Franchise , and not before the Sheriff or the Kings Justices , no recaption lyeth , though he be distreined by the same party again , and for the same cause , for the King will not direct this writ but to the Sheriff ▪ But if the sute be removed before the Justices by a Pone or Recordare , there a recaption lyeth as well for a distress before the Pone or Recordare , as afterwards . And here the Plaintiff shall recover damages for the second taking only , because it is a contempt against Law , for which the Defendant shall be fined if he be convict before the Justices , or amerced , if the conviction be before the Sheriff , but shall recover no damages for the taking nor the detaining of the beasts . And therefore here the Defendant shall not make avowry , as he should in a Replevin , but only may justifie the taking , as in an action of Trespass .

9 A writ De magna assisa eligenda to the Sher . to summon four Knights to choose the grand Assise , Fit . N.B. 4. f . when the mise is joyned thereupon in a writ of Right .

And this is a meer judicial 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 original writ out of the Chancery .

10 A Certificate De Assise upon a verdict given in an assise that is not perfect , 7 E. 6. Pl. 85. whether not well examined by the justices , or not fully inquired of by the Jury , to bring in the same Iurors to give a more perfect one . And this must be sued in the same County where the assise was sued , F.N. Br. 181. a. and may be as well before other Justices , as those that took the assise : if the Kings Bench , or Common place be in the County where the Assise passed , then this writ may be sued there . And beside the writ it self directeth to the Sheriff , Fit . ibid . d . the Justices must have a Patent made unto them as in the assise it self .

F. N. B. 77. e . 2 El. Dy . 173. 11 Proprietate Probanda unto the Sheriff to inquire whether the property be to the Plaintiff or Defendant , when upon a replevin sued , the Defendant claimeth property , which determineth the Sheriffs power to make Replevin .

And this also may be meer judicial issuing out of the Kings Bench 1 E. 4 9. or Common place , 2 Eliz . ibid . 2 El. ibid . and returnable there .

Secondly hither belong those that be prohibitory , or restrain from doing something where the prohibition it self is in lieu of a Sum . And after that the process is an attachm . and distress . So in every writ whi●h is on a prohibition broken , as a quare non admisit , F. N. B. 163. d . Old N. B. 30. Old N. B. 28. quare incumbravit : for every breach of prohibition is a contempt in it self .

Of this sort are

1 Prohibitions to restrain the party from suing in an inferior Court , that ought not to hold plea of it : As in the spiritual Court , for Old N.B. 30. any plea that concerneth not matrimony and wills , as for goods or debts , &c. and 22 E. 4. cons . 2. though it be of matters for which the Plaintiffs have no remedy by the Common Law , as of a Covenant broken without specialty , or debt , &c. against executors upon a simple contract made by their Testator . Or Pro laesione fidei against one which hath waged his Law in an action of debt upon a simple contract and sworn falsly . 19 H. 6. Old N. B. 31. F. N. B. Ph. So if the Bayliff in a Court Baron hold plea of matter above xls . the Defendant may have a prohibition . And these prohibitions may be directed to the Judge himself , not to hold plea in those cases , as well as to the Sheriff , to restrain the party from suing .

Such a prohibition is an Indicavit for the Def . patron when the right of avowson of any part of ones tythes is in demand in the spiritual Court , between two Clerks claiming from several patrons . So as the Indicavit is alway between four persons , whereof two are patrons , 12 E. 4. 13. and the other two Clerks . One claiming to hold of the avowson of one patron , the other of the other patron , for an avowson being a lay hereditament , wheresoever the patronage should come in question the Common Law is to decide it : But where that is not to come in question , Fit . N. B. 36. the Spiritual Court shall decide it , by suit in that Court called spoliation . As a person accepting another Benefice , or created a Bishop , and having a dispensation to keep his personage , shall have a spoliation in Court Christian against another Incumbent presented by the patron , and then shall come in debate whether they have plurality or dispensation , or no .

And this Indicavit lyeth though it be but the right of the twentieth or thirtieth part of tythes that is in demand , 38 H. 6. 20. 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 have an Indicavit to be of tythes to the value of the fourth part of the Church at least . But before that , it might have been of the twentieth part , and the patron thereupon might had a writ of right , whereupon at the Common Law there was a writ of the avowson of the tythes of v acres or x acres , or one acre . But now since by the same Statute an Indicavit shall not be granted of less then the fourth part , therefore there is a writ of the avowson 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 Indicavit , the patron of the Parson so disturbed shall have a writ to demand the avowson of those tythes . And after the Plea deraigned in the Kings Court , then it shall proceed in the Court Christian .

18 E. 3. cap . 7. pro clero & c . 47. Writs of Scire facias to answer of dismes in the Chancery , and to shew why such dismes ought not to be restored the Demandants shall not from henceforth be granted . Saving the Kings right as he and his ancestors were wont to have .

2. F.N. B. 239. d . F. N. Br. 13. g . A Supersedeas to stay any further proceeding in the suit . As if a writ of Trespass ●i & armis be brought in a Court Baron , if upon a writ of right close brought in antient demesne , the demandant and tenant put themselves upon the grand assise , or the Tenant vouch a foreynor , or plea a forein plea which cannot be tried there , if a Clerk of the Chancery or any of the servants of the Chancellor , F. N. B. 48. h . or Lord Keeper of the great Seal be sued in any other place for a trespass or other matter .

Of this nature are , a writ of peace for the Tenant upon a writ of right brought in the Lords Court , 13 E. 3. vouch 269. c E. 1. droit . 45. c E. 1. ibid . vouching one to warranty out of the power of that Court , we call it a foreign voucher , or joyning the mise upon the grand assise to have the matter respited till the Iustices in Eyer come thither , which if he bring not at the nex● Court day , after such voucher or mise joyned , he loseth his tenancy , the reason is , because the Lord cannot make a grand assise to come . But if battail be joyned , c E. 1. ibid . that shall be determined there , and after such a writ brought the plea may proceed by leave of the Justices . As if the vouchee come before them and enter into warranty , they may award that he shall go to the Court of the Lord and there warrant to the party that vouched him , 13 E. 3. ibid . and assign a day certain of the Court , and also give leave and power to the Lord to hold his Court .

De libertate probanda for the Defendant upon a Nativo habendo sued in the County , F. N. B. 77. f . claiming to be frank to the Sheriff to adjourn the plea before Iustices in Eier . And therefore must be brought before any pone delivered by the Lord to the Sheriff to remove it . Old N. B. 46. And this is a Supersedeas to the Lord not to proceed till the day of adjournment , nor to ceise the villein , till the plea discussed .

Statutes .

25 E. 3. c . 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 sute agninst another of the same name . F. N. B. 267. e . As if he be taken by a Capias or Exigent awarded against the other , or distreined by process out of the Exchequer . And this Writ shall be either to the Escheator or Sheriff 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 service taketh him , for the Plaintiff can never have a protection from him , F. N. B. 28. g . unless it be in special causes where the Pl. doth become Defendant , 39 H. 6. 38. into his protection for one year to be free from all suits .

Writs of dower , Quare impedit , Old N. B. 21. 39 H. 6. ibid . assises of novel disseisin , and pleas before the Iustices in Eyer are accepted . Therefore it shall for that time save all defaults . 21 H. 6. 20. So as upon a protection ( cast in a plea personal ) at the Nisi prius , and repealed at the day in Bank , yet the inquest shall not be taken by default , for the default was once saved . Otherwise it is of a protection disallowed at the day in Bank . Fit . N. B. 29. b 39 H. 6. ihid . And a man may excuse his fault at a Grand cape , or petit cape by casting of a protection . But a protection can indure no longer than for one year , for otherwise it might be for xx . xxx . or C. years , and by the same reason for a thousand years , which were a great inconvenience and disherison to the party . But a protection for one year is not so , for after the year ended he may have a resummons and proceed in his suit : yet the King after the first year ended may take him again into his protection for another year , though it be space of ten or twenty years together , for in that case appeareth at the first no mischief nor inconvenience , as there doth when he taketh him into his protection for so many years at once .

Statutes .

5 E. 3. cap . 7. 39 H. 6 38. No protection shall be allowed in Writs of Attaint .

This kind of protection is double . Protectio quia profecturus , when he is to go beyond sea in the Kings business .

F. N. B. 28. e . Protectio quia moratur , when he stayeth there about it . Of which nature is also a protection quia in prisona , when being sent beyond Sea in the Kings warres he is there taken and detained in prison . The going or staying about the Kings business in the marches of Scotland , F. N. B. 28. g . 39 H. 6. 39. or such like places as is counted as beyond Sea . But a Protection , quia moratur super altum mare , is not good , for it cannot be intended that he doth abide there .

Statutes .

13 Rich . 2. cap . 6. A protection in respect of going beyond the Sea disallowed ( except it be in voyage Royal , or business of the Realm ) where it beareth date after the sute commenced . And the Lord Chancellor hath authority to appeal it , if he go not in convenient time , when he returneth .

A Stat. of protection , 33 E. 1. Averment is given against petition for the Kings service .

1 Ric . 2. cap . 8. Protection ( volumus ) not allowable for victual taken or brought upon the voyage or service , whereof the protection maketh mention , nor in trespasses and other contracts made after the date of the same protection .

Prerogative .

The King may take his Creditor into his protection , F. N. B. 28. b . that no other Creditor shall sue or arrest him , till the King be satisfied , which is also a protection cum clausa volumus .

Statutes .

25 E. 3 , cap . 19. A Creditor shall have an action and judgment against the Kings debtor , notwithstanding such a protection . But not execution , unless he take upon him to pray the King , and then he shall have Judgment and Execution of both debts , as well of that due to the King as to himself .

He may also by a writ called Warrantia diti , F. N. B. 17. rehearsing that one which should appear in proper person , Whether it be the Plaintiff or Defendant , is in his service , wil that for one day no default be recorded up on him . So as if the tenant in a praecipe quod reddat make default at the grand Cape , or petit cape : yet before Judgment upon that default , the King by his writ may make that it shall not hurt him . And this standeth with reason , because every man is bound to serve the King in his affairs . Neither is it material whether he be in the Kings service or not , when the King certifieth that he is : for it seemeth by the words of the Writ , that the King by his prerogative may for one day warrant his default . And this writ cannot be granted but by the King himself .

19 H. 6. 57. 4. Essoyn De malo lecti , is a writ to warrant an essoyn of lying sick a bed cast by the Tenant in a writ of right : Commanding four Knights to see him , and if he be sick to give him day at the end of the year and the day for so long adjournment is in that essoyn .

Statutes .

Westm . 2. c . 17. In an Essoyn De malo lecti the Demandant may aver by inquest , that the Tenant is not sick , nor in such plight but that he may come before the Justices . Such an Essoyn shall not lye in a writ of right between two claiming by one descent .

F. N. B. 37. f . 5. A Ne admittas for either party , Plain . or Defendant , in a quare impedit , or assise of darreign presentment to the ordinary , not to admit the others Clerk till the matter be discussed .

F. N. B. ibid . And this must be sued within 6. months and not after , for after the six moneths it is lawful for the Ordinary to present by lapse but being sued within the six moneths the Ordinary may neither himself F.N.B. 48. l. collate within six moneths ( but afterwards by lapse he may ) nor Fit . ibid . admit the others Clerk at any time , F.N.B. 48. h though it be after the six moneths , and though it be found for him by a Jure patronatus , which is a commission that the ordinary may grant to inquire who is the right patron .

6. F. N. B. 48. e . A quare incumbravit for him that sueth a Ne admittas , and after recovereth in a Quare Impedit , or assise of darrein presentment , though it be after the six moneths , but before recovery no quare incumbravit lyeth against the Ordinary for incombring the Church , contrary to the ne admittas . F. N. B. 48. h . But of a collation or admittance before a ne admittas sued , no quare incumbravit ( but only a quare impedit ) lieth , for the Ordinary can have no notice till the ne admittas .

But no ne admittas , nor quare incumbravit lieth in a writ of right of avowson , F. N. B. 48. q . though the Church become void hanging the writ , and the Bishop do incumber it , for the Demandant there shall not recover the presentment but the avouson . And if he have title to present , he may present , and upon disturbance have a quare impedit .

CHAP. 45. Of Judgments .

THus far of Suit . 10. El. Dy . 26. 8 The writ of false judgment shall be Recordare fac . loquelam quae fuit in eadem curia , & not quae est , for by the judgment loque la is determined . 10. E. 3. Stam . praer . 78. Iudgment is the Courts final determination of that suit .

Vpon Iudgment against the King in a petition , he is presently out of possession . And therefore every Judgment is in it self a moveas manu , or an ouster remaine . In a writ of right the Iudgment after issue joyned is final on either side , not only when it passeth by verdict , or vanquishing of the others Champion , but where the Demandant is F. N. B. 6. 3 El. Dy . 301. non suit , or the F. N. B. 6. Tenant maketh default , or the 26. H. 8. 8. F. N. B. 31. d . vouchee after such an issue joyned by him , departeth in despite of the Court , &c.

Prerogative .

Against the King Iudgment is not final , but is always with a Salvo jure Regis .

5 E. 3. 50. Recoveries in a writ of right bind all strangers not claiming within the year . As being suffered by a disseisor , it bindeth the disseisee by his non claim . Tenant for life suffering a wrongful recovery , it shall prejudice his right that hath the inheritance , 34 H. 6. 2. 4 H. 7. 3. though he be prayed in aid and make default . for no aid prayer is necessary , in as much as the other being tenant of the freehold , a recovery is good against him . But that after the death of Tenant for life , 24 H. 8. Br. fau . reco . 41. he may falsifie it by action of Ad terminum qui praetexiit , or writ of right which we call falsifying of recoveries . But he cannot enter , 26 H. 8. 2. neither can lessee for years at the Common Law falsifie for having but a Chattel derived out of a free-hold , there is no reason he should falsifie a recovery which draweth the fee-simple out of the Lessor . Also the present estate upon which the Lease depends being destroyed , the Lease must needs be extinct .

Statutes .

14 Eliz . cap . 8. Every fraudulent recovery against any Tenant for life , or whereupon any tenant for life , or he that hath right to estate for life is vouched , shall be void against him in the reversion , or in the remainder , unless it be by his own assent appearing by record .

21 H. 8. cap . 15. Termors for years or in by execution of Statute Staple , Statute Merchant , or Elegit , may falsifie recoveries only for their own Term in such sort as Tenants of the freehold , neither party nor privie to the recovery might at the Common Law .

In a writ of Dower by gardein in soccage against gardein by Knight servite , Lit . 3. she shall at his prayer be adjudged to endow her self wholly of the Land in soccage . And this is called Dower de la plus ●eale . But such dower shall not be where the woman is gardein en fait by Knight service , Park . 88. nor where all the husbands Lands were holden in soccage , and she brings her writ of dower against the heir : nor where she brings it against her husbands feoffee with warranty , for he may vouch the heir .

A debt acknowledged in Court of Record either to the K. or to a Common , is in the nature of a Iudgment , and called a Recognisance . And therefore such a matter acknowledged by an Infant , cannot be avoided but during his nonage only . As a 18 E. 4. 13. fine by writ of error , 7 El. Dy . 232 18 E. 3. 5. Recognisance , Statute , or such like , by an Audita querela : for it shall be tried by Inspection of the Court , whether he were within age , or no .

In appeals of 41 E. 3. trespass . 199. maym , indictments or appeals of 40 E. 3. 42. felony , the accessory shall not be compelled to answer ill attainder 1 Mar. pl. 99 3 H. 7. 12. 4 E. 6. Br. co . 185 of all the Principals , by verd . outlawr . or though it be by taking him to his Clergy , or abjuration . So as if the Principal die 21 H. 7. 31. or have his 3 H. 7. 12. pardon before , or if two men be indicted , one as principal , the other as accessary , 12 E 3. 12. and the principal be afterwards attainted of another felony and hanged : the accessary shall be discharged . And 3 Mar. Dy . 120. if one of the principals be not attainted , the Accessary shall not recover damages against the Abettors , for he is not legitimo modo acquietatus . But in case of high Treason all offenders are accounted principals , and there is no accessary at all .

Stam . 133. He that is or by possibility may be within orders , for one being within orders ( if he shew them , or the ordinary certifie so much ) shall have his Clergy , whether he can read or no . Otherwise he must be able to read a verse , namely , a Deacon at the least , have the benefit of his Clergy , save him either from Judgment when the Clergy is prayed before , or from execution if it be prayed after , if he be found culpable by verdict , or his own Stam . 138. ae confession either ●ledge●efore the Coroner , or the Justices of any ●ledge●a● , felony , where life or member is to be ●ledge●st , be it upon an indictment or appeal , ●ledge●t Stam . 124. not for killing a man by misfortune , ●ledge●t se defendendo , or yet for petty Larceny ●ledge●or in these cases he is not to have Judg●ledge●ent of life or member . No more in case of ●ledge●igh Treason , or petty Treason . And such a Stam . 136. c Clerk might indeed by the antient ●ledge●aw have had his Clergy before he were ●ledge●dicted . But now he shall not have it upon ●ledge● arraignment , unless he plead to the felo●ledge●y and be found guilty : for otherwise he ●ledge●ould lose his goods by an inquest of office , ●ledge● which he would have no challenge as ●ledge●e may have to this . But yet he may ●ledge●ive this benefit and pray his book after ●ledge●e inquest , and before their coming back . ●ledge● which case notwithstanding , the ver●ledge●ct afterwards shall be taken . And that ●ledge● in favorem vitae : because if the Jury find ●ledge●im not guilty , he shall be charged . And ●ledge●is possibility ( there being no other im●ledge●diment ) as if it be a woman , a blind , or a ●ledge●aimed man , shall be tried by the Iudges . ●ledge●d therefore if the Ordinary challenge ●ledge●im , where he readeth not as a Clerk , he ●ledge●e shall be fined and the party hanged . Stam . 133. d . 9 E. 4. 28. Or if ●ledge●e refuse him when he doth read as a Clerk , ●ledge●e Ordinary shall be fined , and the par●ledge● discharged , for the Court are Judges ●his reading . And the Ordinary is there only to challenge him for his Clergy , for the entry is Legit ut Clericus ideo tractatur ordinario , 9 E. 4. 28. by his ableness to read a verse , though he cannot read without spelling . But if he can read but here a word and there a word , and not three words together , quaere whether that be sufficient .

Clergy in the delivering of him to the Ordinary to be kept in prison .

Stam . 138. c . If it be before Iudgment , in which case we call him a Clerk convict , he shall be tried there by a Iury of Clerks . Stam . 138. And therefore purging himself shall go at large . Therefore is a writ to command the Ordinary to admit him to his purgation . Not purging himself , but being found culpable by those Clerks , he shall be only degraded .

Stam . 139. b . But upon an appeal of Robbery , or such like , no purgation shall be admitted . The Reason seemeth because then the Plaintiff in the appeal should recover his goods without cause , when by the purgation it did appear that the other was not guilty of the felony .

Stam . 108. A Clerk convict shall not answer to any offence committed before .

Prerogative .

5 E. 6. Br. forf . 113 Stam . 138. A Clerk convict forfeiteth his Chattels : And shall never have restitution , though he make purgation . Notice must be given to the King of the time before the party make purgation . Stan . 138. c . If the Clergy ●ledge●e after Iudgment , in which case we call ●ledge●im a Clerk attaint , he shall remain in perpetual prison .

Statutes .

25 H. 8. cap . 3. Revived . 5 E. 6. c . 10. One arraigned upon an Indictment of petty Treason , willful burning of houses , Murder , ●ledge●obbery , or other Felony , according to the ●ledge●eaning of the same Statute , if he stand ●ledge●ute of malice , or froward of mind , or chal●ledge●enge peremptorily above 20 , or will not di●ledge●ectly answer , shall lose his Clergy , in such ●ledge●anner as he should , if upon the arraign●ledge●ent he had been found guilty .

25 E. 3. pro clero , cap . 4. Convict of petty Treason shall have it .

18 Eliz . c . 6. None in Felonious Rape , Ravishment , nor Burglary .

18 Eliz . cap . 6. None in carnal abusing a woman within ten years of age .

25 H. 8. cap . 6. 5 Eliz . cap . 17. None ●ledge●n Buggery .

5 E. 6. cap . 9 None for him that robbeth any person in any part of his dwelling booth , or Tent , in any Fair , or Market , himself , his wife , children , or servants then being there , or within the precinct thereof , either sleeping or awake .

4 And 5 Ph. and Mar. c . 4. None for him that maliciously commandeth or hireth any to commit petty Treason , or wilfull Murder , or Robbery in any dwelling house , or Inne , or near any high way , or within the marches of England against Scotland , or wilfully to burn any dwelling house , or any part thereof , or any Barn having Corn therein .

25 H. 8. cap . 3. and 5 E. 6. c . 10. He that doth a Robbery or ●urglary in one County , and is taken with the goods so robbed or stoln , in another county , shall lose his Clergy there , as he should do where the Robbery or Burglary 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 certain bring his letters of order , or certificate .

4 H. 7. cap . 13. He that asketh his Clergy shall be marked in the hand with an M. if he were convict of Murder , with a T. if he were convict of other Felony .

1 E. 6. cap . 12. Lords of the Parliam . in all cases where Clergy lyeth at the Common Law , or is restrained by Statute , shall upon his prayer be adjudged as a Clerk convict hough he cannot read .

8 El. cap . 4. and 18 El. cap . 7. After purgation he shall be put to answer to any such offence ( committed before his admission to the Clergy ) whereupon Clergy is not allowable , and whereof he was not before indicted and acquitted , convicted , or attainted , or pardoned , and shall be demeaned in all things , as if he had never been admitted to his Clergy .

18 El. cap . 7. He that is allowed Clergy shall not be delivered to the Ordinary , but after burning in the hand shall be delivered forthwith by the Justices out of prison : yet for further correction , they may detain him in prison , so that it be not above a year .

Outlawry is a Iudgment , which in case of criminal offences we call an Attainder in it self . So as he which is indicted of trespass and outlawed shall pay a fine , he which is outlawed for felony , forfeiteth his lands and goods ; and this fine and forfeiture remaineth though he purchase a Charter of pardon afterwards . And there is a Writ of Eschete of Land for Felony pro qua utlegatus fuit .

So is abjuration an Attainder in it self ( and Stam . 122. c . that the strongest that can be , ●eing by his own confession ) and a 4 El. pl. 262 forfeiture of his Lands . And there is a writ of Eschete of Land for Felony , pro qua abjuravit regnum And therefore 3 E. 3. Cor . 335. he that is hanged upon Judgment against him , and becometh alive again , cannot abjure ( but an abjuration in that case is in escape ) for one cannot have two Judgments for one offence .

2 H. 4 24. 8 R. 2. avowry . 94 Stam . 167. e . Stam . i●id . The offender upon a presentm . in the Leet or Sheriffs turn shall be amerced .

The Def . in an appeal of Felony , being acquitted shall have judgment also to recover damages against the Plaint . And if the Plaintiff be not sufficient , then Common Law and Common Reason will , that he recover his damages against those that procured or abetted the Plaintiff to pursue the appeal . But these damages against the procurors or abettors were to be recovered at the Common Law only , by writ original that is to say , by wtit of conspiracy , and not otherwise .

Statutes .

Westm . 2 cap . 12. One being acquitted upon an appeal , or indictment of Felony , may have the abettors inquired and have a Judicial writ for his damages against , if the appellant be not sufficient .

8 H. 6. cap . 10. An action upon the case given for him , that is duly acquit by verdict against every procurer of any Judgment or appeal of Treason , Felony , or Trespass . And like process shall be therein , as in a writ of Trespass , vi & armis .

The Plaintiff recovering shall be allowed his costs of sute .

CHAP. 46. Of Judicial Writs to execute Judgments .

THese Judgments have their Judicial Writs belonging to ●hem , both meer Judicial Writs , for the execution of them , and new originals in the nature of Judicial Writs , to undo some matters concerning Judgments .

Meer Iudicial Writs in real or personal actions , are either such as lie only within the year and day afer the Iudgment rendred or a scire facias .

Those of the first sort are between the parties to the recovery , for otherwise though it be within the year , 14 H. 7. 15. 19. 15 H. 7. 5. he that recovereth is driven to his scire facias , as if it be for debt or damages recovered against a feme sole , 38 E. 3. Sc. fac . 77. 14 H. 7. & 15 H. 7. ibid . who afterwards taketh a husband , or by or against ones Predecessor or Testator , and in the same Court where the recovery was , for if the Record of a Recovery in an assise of novel disseisin be removed within the year into the Chancery by a Certiorari , and from thence to the Common place by a Mittimus , or removed by Writ of Error out of the Common place into the Kings Bench , and the Judgm . affirmed within the year , yet the party is driven to a scire facias . So if a fine executory be removed out of the Common place into the Treasury , and come back by Certiorari and Mittimus , within the year no execution shall be by an habere facias seisinam , but by Scire facias only . But although the Judges of the Common place should all dye within a year after the Judgment , and other Justice be chosen , yet in that case execution might be well enough without a Scire facias ; for it remaineth still the same Court , or if the Justices in Eyre come into the County , where one hath recovered before the Justices of Assise , they may award execution by a Scire facias within the year .

Of this kind are upon recovery in real or mixt actions .

F.N.B. . 167. Habere facias seisinam to put him in possession upon a free-hold recovered , in an assise , praecipe quod reddat , &c.

Habere facias possessionem , upon a Term for years recovered , as in an Ejectione firmae , &c.

F.N.B. 38. b . & s. A writ to the Bishop to admit ones Clerk upon a presentment recovered , in a Quare Impedit , or assise of darrein presentment : If the sute be against the Bishop himself , then this writ may be to the same Bishop , or to the Metropolitan at the parties choice .

27 El. Cor . 11. Sr. Wil. Herberts e . Those upon a recovery in personal actions , are of two sorts , either to have execution of the profits of his Land , and Chattels , or a Capias ad satisfaciendum .

But in Court Barons Execution is only by distress , 4 H. 17. 22 Ass. Pl. 71. and impounding till the party be satisfied : for they have no power to sell or deliver the distress to the party , neither doth any execution by the body lye there .

In those of the first sort execution shall be of any Old N. B. 165. 42 E. 3. 11. 2 H. 4. 14. land which the party had day of the Iudgment rendred , but for Old N.B. ib . 2 H. 4. ibid . chattels ( though it be 24 Eliz . leases for years ) only those which he had day of the execution sued . 24 El. ibid . So as if he sell his goods bona fide , after Judgment , and before the writ of Execution sued forth , those goods are not liable to the execution , or if a writ of execution be sued forth and never returned , and after the Defendant alien his goods , and then the Plaintiff purchaseth another writ which is returned , yet execution shall not be of those goods , for writs which never are returned are not of record , nor of any force at all . But an alienation made after the Teste of that second Writ had been nothing worth .

Of this kind are a Scire facias , and a laevari facias . Fieri facias to levy execution of his goods and chattels only . 15 El. Pl. 441. Old N. B. 165. Levari facias to levy execution of the profit of his land and Chattels . The form is , Praedicta pecuniam de terris & catallis praedicti ( the Defendant ) levare facias , Ita quod ea habeas in eti ' tali die praefat . ( the Plaintiff ) deliberand . And this having words that he shall levy the money of his Lands and chattels , it seemeth that the Sheriff may take the Rents payable by the Tenants in execution of the debt , but not to seise the Land , and deliver it to the party .

Statutes .

Westm . 2. cap . 18. He that recovereth debt or damages in the Kings Court , may at his choice have a Scire facias of the Land and Chattels of the Debtor , or a writ for the Sheriff to deliver him all the Chattels of the Debtor ( except Oxen and plow-beasts ) and the moyety of his Land by a reasonable extent , till the debt be levied . And if he be ejected out of the Land , he shall have an assise ; and afterwards a writ of re-disleisin if need be .

11 E. 1. Stat. Action Burnel . A debt acknowledged to a Merchant , before the Mayor of London , York or Bristol , or before a Mayor or Clerk ( appointed by the King thereunto shall be enrolled . And if it be not payed at the day , the debtors moveables shall be prised , and sold in satisfaction by the Mayor , if he have any within his jurisdiction , else by writ out of the Chancery upon a Certificate of the Recognisance thither . The Prisors to take them of the price if they prise too high , if they have not moveables sufficient , then he shall be imprisoned till , &c. The like process against pledges , in default of sufficient moveables of the principal .

13 E. 1. Stat. De mercatoribus . A debt acknowledged to a Merchant before the Mayor of London , or chief Wardein of a Town , which the King shall appoint , or other sufficient men when they cannot at●ledge●end , and before a Clerk which the King ●ledge●hall assign , shall be inrolled , and if it be not payed at the day , the Debtor , if he be a Lay-man shall be imprisoned by the Mayor ●ledge●ill , &c. if he be within their power , else by Writ out of the Chancery upon Certificate of a Recognisance thither . And if he agree with the Creditor within a quarter of a year after , then all the Lands which were the Debtors , day of the Recognisance made , and also his goods , shall be delivered to the Creditors on a reasonable extent . And of these ●ledge●ands so delivered , the conisee being ousted , ●ledge●hall have an assise or re-disseisin .

The writs out of the Chancery shall be returnable before the Justices of either Bench , and upon a Non est inventus returned , or that he is a Clerk , writs to all the Sheriffs where he hath Lands or goods , shall go forth ●ledge●o deliver the same upon reasonable extent , ●ledge●nd to what Sheriff he will to take his body .

The like process shall be against the pledges , if the money be not payed at the day .

If the debtor or pledges die , the Creditor shall have execution upon the Lands of the the heir at his full age .

27 E. 3. c . 9. The Mayor of the Staple shall take Recognisance of debt before himself and the Constable of the Staple , whereupon default of payment being made , the debtors body shall be imprisoned , and his goods sold in satisfaction ( if they be within the Staple ) else upon a Certificate in the Chancery , a Writ shall go out from thence to imprison their bodies , and seise their lands and goods which shall be returned in the Chancery , and Execution thereupon in all respects , as in the Satute Merchant : Save that the Debtor shall have no advantage of the quarter of a year .

5 H. 4. cap . 12. A Statute being once shewed in the Common place , and the process afterwards discontinued , yet execution may afterwards be awarded without shewing it again .

11 H. 6. cap . 10. He that is in prison upon a Recognisannce , shall not be delivered out of prison upon a Scire facias against the party and surety thereupon found to the King alone , but shall find sureties severally as well to the King as to the other party .

23 H. 8. cap . 6. Either of the chief Justices , or in their absence out of the Term , the Major 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. Every Statute Staple , or Merchant , not brought to the Clerk of Re●ledge●nisances within four moneths next after ●ledge● acknowledging , to enter a true copy ●ledge●ereof , shall be against all persons , their ●ledge●its , successors , executors , administrators , ●ledge●nd assigns only , which for good conside●ledge●d on shall after the acknowledging of the ●ledge●e Statute purchase the Land , or any part ●ledge●ble thereunto , or any Rent , Lease , or pro●ledge● of it .

32 H. 8. cap . 5. Lands lawfully delive●ledge●d in execution upon a judgment of Re●ledge●isance , being evict . without any fraud or ●ledge●fault in the Tenant before he have levi●ledge● the whole debt and damages , the Reco●ledge●er and the Recognisee shall have a Scire ●ledge●ias out of the same Court where executi●ledge● was awarded , returnable there full for●ledge● days after the date . And thereupon a new ●ledge●it of Execution of the nature of the for●ledge●er to levy the rest of his debt and dama●ledge● , if the Defendant make default , or shew ●ledge● good matter in Bar .

Magn . chart . cap . 8. The King shall not ●ledge●e the lands or rents of the debtors , if he ●ledge●e sufficient chattels .

Magn . chart . cap . 18. T●e goods of ●ledge●e Debtor may be attached after his death ●ledge● the view of lawful men . That nothing ●ledge●ll be medled with till the Kings debt be ●ledge●yed .

33 H. 8. cap . 39. All obligations to th●redge● King shall be of the force of a Stat. Staple .

Prerogative .

The King may have a distringas to le●redge●vy an amercement , or such like , by distres●redge● and sale , whether it be an Amercement i●redge● the Leet or Sheriffs turn , or o herwise .

Old N. B. 167. 17 El. Coo . 12. Sr. Wil. Herb . c . 2 H. 4. 6. A Capias , ad satisfaciendum is to tak●redge● hi●●ody in execution , for sati●fying of th●redge● par●y . And this is always upon a recovery in a personal action where a Capia●redge● lay . Therefore it lyeth not in any real action as in a Writ of dower , or other praecip●redge● quod reddat , nor at the Common Law i●redge● debt , detinue , account , &c. but in action●redge● of Trespass , 40 E. 3. 25. 49 E. 3. 2. 49 E. 3. ibid . and such like . And here an exigent shall be awarded upon the first Capias , for if he were taken by the Capias , h●redge● should pay unto the King a fine for a Trespass adjudged against him .

Prerogative .

Of this nature are two special Writ●redge● by the Kings Prerogative , Capias pro fine Regis , and capias utlagatum .

1 H. 7. 20. Capias pro fine Regis , when the party i●redge● adjudged to pay a fine unto the King .

Old N. B. 168. Capias utlagatum , to take one outlawed , which is a kind of Judgment and determination of the Original Writ as appeared before .

These are the Iuditial Writs within ●ledge● year and day .

A Scire facias , Old N. B. 163. 27 El. Coo . 12. in Sr. Wil. Her . c . which lieth after the year ●ledge●d the day , is to warn the Defendant ●ledge●on recovery in real actions , for in per●ledge●nal actions debt only lay after the year , ●ledge●hich is a new original till Westm . 2. cap . 45. ●ledge●e a Scire facias , to shew cause why the ●ledge●laint . should not have execution . There●ledge●re here the Defendant may plead matters ●ledge●owing after judgment rendred to oust the ●ledge●her of his execution , Lit . 116. as outlawry &c. or a ●ledge●ease of all actions , for in as much as he ●ledge●y plead upon this Scire facias , it may well ●ledge● called an action , though it be but a writ ●ledge● execution . 8 E. 4. 15. 1 El. Dy . 167. 19 H. 8. 6. 22 H. 6 41. 2 H. 7. 3. 24 H 8. Br. peremptory 63. 1 Eliz . ibid . But notwithstanding that a ●ledge●n which recov●reth debt or damages , re●ledge●se to the Defendant all actions , yet he ●ledge●ay lawfully sue execution by a Fieri facias ●ledge●ias ad satisfaciendum , &c. for these can●ledge●t be called action ▪ here upon a Nihil re●ledge●ed , execution shall be presently a●ledge●nst the partie● to the Iudgment . But ●ledge● 1 Eliz . ib . against Executors , or Administra●ledge●s nor in a Scire facias upon a 1 El. ibid . Recog●ledge●nce or 1 El. ibid . 2 El. Dy . 172. 8 E. 4. ibid . ●harter of pardon , upon an ●ledge●lawry , or such like , or to 26 H. 8. p. Dy . 198. repeal a ●ledge●ent , for in all these cases two Nihils must ●ledge● first returned . And therefore a Scire fa●ledge●s sicut alias shall go forth . And the The Stat. West . 2. cap . 46. doth so recite it . ●ledge●emnities of summons , attachment , essoyn , ●ledge●w of land , &c. lye not in this writ .

Statutes .

Westm . 2. cap . 46. For all things recorded before the Kings Justices , or contained in fines ( whether contracts , covenants , obligations , services , or customs acknowledged , or any other things enrolled ) a writ of Execution shall be within the year , so as the parties shall not need to plead : After the year a Scire facias . The like is of mesne who by Recognisance or Judgment is bound to acquit .

In case of life the Iudg may command execution to be done without any writ .

A woman 22 ass . Pl. 71 quick with child 22 ass . pl. ib the trial whereof is by a Jury of women : and the writ for it is called a writ De ventre inspiciendo shall for 23 ass . pl. 2. once , and no more , be respited 22 ass . ibid . execution , but it is no plea upon her arraignment , to say , that she is enseint , but she must answer to the Felony .

CHAP. 47. Of new Originals in the nature of Judicial Writs , to undo matters concerning Judgments .

THe new Originals in the nature of Judicial Writs to undoe some matters concerning Iudgments , whether it be the judgment it self , or the verdict whereupon Judgment is given , that so the judgment also may be undone , or to a●ledge●oid the execution growing upon the judgment , are either writs grounded upon er●ledge●or , or an attaint , and Audita quaerela .

Writs grounded upon Error , are a writ of Error and false judgment , both which lye upon any error in the proceeding , as well in Redditione executionis ( as upon a Capias ad satisfaciendum , ) awarded for damages recovered in a real action , 16 H. 7. 6. as in ●ledge●edd tione Judicii .

But Error in Process , may the same Term be reformed in the same Court , Whether it be in the Kings Bench 7 H. 6. 28. or Common place F. N. B. b . 12 E. 4. 11. 5 H. 7. 25. and that by writ or without .

The process here is a Scire facias .

The party bringing a writ to reverse error in the Iudgment may have a Superideas to stay execution till the error be ●ledge●scussed , whether it be matter apparent or matter en fait , that is alledged for Error . But no such Supe●sedeas shall be upon an Attaint ; for that which is found by the oath of 12 ●en is intended true till it be reversed , but it may as well be intended that there is an error in the Record , as not .

A writ of Error is upon an Error in Court of Record .

And may be sued in the Kings Bench , or Parliament .

In the Kings Bench when the error is in any inferior Court , Whether the judgment be given in the Common place F. N. B. ib . Chancery 13 El. pl 393 City 14 H. 7. 1. 8 El Dy . 250. 21 El. So holden in the Common place , contrary to Fitz . N. B. 21. t . or Corporate Town , as before the Mayor of Excester , or other Court of Record , for no Writ of Error is returnable in the Common place .

Statutes .

9 Ric . 2. cap . 3. If Tenant for life , or in tail , after possibility of the issue extinct be impleaded , and judgment pass against him , he that is in the Reversion at the time of the judgment , shall have a Writ of Error upon an Error in the Record of the same judgment , as well in the life of such a Tenant as after his death . And if at any time of reversing of the judgment , the Tenant for life , &c. be alive , he shall not be restored , &c. his possession , with the mesne issues , and he in the reversion to the arrearages of the same Rent , if any be due . But if the Tenant for life , &c. be dead at the time of the reversing of the judgment , then he in the reversion shall be restored to possession , with the issues after the death of their Tenant for life , &c. and the arrearages of Rent due in his life .

31 Ed. 3. cap . 12. Error in the Exchequer shall be reversed before the Chancellor and Treasurer , taking to them the Justices and other such sage persons , as they think fit . And after the Roll shall be sent back into the Exchequer , to make execution .

31 Eliz . cap . 1. If either Lord Chancellor or Lord Treasurer , or both the chief Justices come at the day of adjournment in a Writ of Error in the Exchequer , it shall be no discontinuance .

32 H. 8. c . 30. made perpetual . 2 E. 6. cap . 22. After a verdict tryed by twelve men , or more , in any sute in Court of Record , no judgment shall be stayed or reversed for any mispleading , lack of colour , insufficient pleading , miscontinuance , discontinuance , miscontaining of Process , mis-joyning of the issue , lack of warrant of Atturney : for the party against whom the issue it tried , or any other default or negligence of the parties , their Councellors , or Atturnies .

18 Eliz . cap . 4. After a verdict of twelve men , or more , in any sute in Court of Record , judgment shall not be stayed or reversed for default in form , or lack of form , as false Latine , variance from the Register , &c. in any writ original or judicial , declaration , bill , or plaint , or for want of any writ original or judicial , or by reason of any imperfect or insufficient return , or for want of any Atturney , or for any manner of default in process upon , or after the prayer or voucher .

27 Eliz . cap . 5. After demurrer joyned or entred in any sute in Court of Record , the Judges shall proceed and give judgment according as the very right of the cause and matter in Law shall appear unto them , without regarding any imperfection , defect , or want of form in any writ , return , plaint , or declaration , or other pleading whatsoever ; except those only which the party specially and particularly shall set down and express , together with his demurrer . And that no judgment to be given , shall be reversed by any writ of Error , 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 Sutes of Felony , or Murder , nor to Indictment or Presentment of them , or of Treason , or other matter , nor to process upon any of them , nor to any sute upon a popular , or penal Statute .

1 H. 7. 19. 23 El. Dy . 375. In the Parliament , when the error is in the Kings Bench : And is returnable before the King and the Loords only . The order whereof is this , viz. The party that sueth it , must have a Bill from the King indorsed ; and thereupon the Chancellor must make him a writ of Error , and then the chief Justice of the Kings Bench shall bring with him ( in the Parliament ) unto the Lords in the Inner Parliament Chamber , the writ or Error , and the Bill indorsed , and all the Rolls wherein are contained the Pleas and Process , in which Error is supposed , and there shall leave the transcript of all the Record and Process , &c. together with the said Writ of Error with the Clerk of the Parliament , who shall have the custody thereof . And by the Lords only , and not the Commonalty shall a Steward be assigned , who together with the Lords , by advice of the Justices , shall proceed to amend the error .

Statutes .

27 Eliz . cap . 8. An Error in the Kings Bench in an action of debt , detinue , covenant , account , action upon the case , Ejectione firme , or trespass first commenced there ( where the King is no party ) may at the parties choice be reversed in the Exchequer Chamber before the Justices of the Common place , and such Barons of the Exchequer as are of the choice , or six of them at the least , other than for error concerning the jurisdiction of the Kings Bench , or want of form in a Writ , Return , Plaint , Bill , Declaration , Pleading , Process , Verdict , or proceeding whatsoever . And upon the Judgment affirmed or reversed , the Record shall be sent back into the Kings Bench , to proceed and award execution thereupon .

The party grieved with such reversal or affirmation , may have a Writ of Error in the Parliament as upon Judgment in the Kings Bench .

31 El. c . 1. And any three of the Justices and Barons ( if the full number come not ) may receive Writs of Error , award Process , prefix days for the continuance of the Writs of Error .

F. N. B. 17 & 18. False judgment is upon error in a base Court .

Thus much of writs of error and false judgment , there followeth an attaint , and Audita querela .

Attaint is to inquire whether a Iury of 12 men gave a false verdict . 18 E. 4. 9. That so the judgment following upon it may be reversed , and the party restored to all that he hath lost , that is to say , if it be the Defendant to his damages , and whatsoever else : if the Plaintiff to his title , 9 ass . Pl. 21. his action , &c. for an attaint lyeth not till judgment be given , and if the Writ bear date before , Br. attaint . 42. it shall abate . And this lyeth only upon a verdict by twelve , for if he lose in a Writ of right , no attaint lyeth neither by the Common Law , nor Statute , because it passeth by a Jury of more than twelve , that is to say , the grand assise . No more doth it in an inquest of office , 39 H. 6. 1. 3 H. 6. 29. and upon a writ to enquire of damages in trespass , for that may be by a less number than twelve .

And this must be brought in the life of him for whom it passed , and of some of them that gave it , whom we call the petty Jury , for if either the 25 H 8. Dy . 5 26 ass . Pl. 12. party himself , or 13 E. 4. 5. all the petty Jury be dead , or 34 ass Pl. 6. 26 ass . Pl. 2. all of them but one , the attaint faileth , and lieth only upon a verdict in personal actions other than trespasses : For it seemeth that there was an attaint at the Common Law , because Westm . 1. c . 37. speaketh of attaints without expressing any penalty . Br. attaint . 42. And 24 E. 3. cap . 7. giveth it in plea real as well as personal . So as it lay before in a plea personal , debt , detinue , covenant , and such like : but not in trespass , for that is given by Statute . And the reason why it lay not in an action of Trespass , is because then upon reversing of the recovery the King shall lose his fine . Neither did it lye at the Common Law in a plea real of Land , for Westm . 1. cap . 37. giveth it in that case . And the reason of that was , because he that loseth may have a writ of right .

The Iury here called the grand Jury , Old N. B. 111. are 24 , who are to be warned the 1. day . And the process is against the party summons , re-summons , as in a mort dancester , Old N. B. 112. darrein presentment , and Juris utrum , against the petty Iury , Venire facias , and distress .

The petty Iury must be all present , 22 H. 6. 8. when the grand Iury is taken , else it can never be taken , which was a great mischief at the Common Law , for it might be that some of them had nothing , and so would never appear . 35 H. 6. 30. And may plead in bar of the attaint , as a release , arbitrement , &c. for this excuseth them of their false oath , but not in abatement of the writ , 19 ass . Pl. 15. as another a●taint hanging , that the Demandant had joyntly with another not named in the writ : or if a woman bring it to say she is covert , &c

The Plaintiff in the attaint can give no more evidence than was given at the first . 34 H. 8. Dy . 53. But the Defendant in affirmance of the first verdict may .

Statutes .

Westm . 1. cap . 37. An attaint is given in pleas of land or of freehold , or of things that touch free-hold .

1 E. 3. cap . 8. In writs of trespass as well upon the principal 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 quantity of the damages .

34 E. 3. cap . 7. An attaint is given in every plea , real as well as personal .

9 Ric . 2. cap . 3. Given to him in the reversion , living his Tenant for Term of life upon a recovery against him , with restitution of the Tenant that lost his possession , with the mesne issues . And of him in the reversion to the arrearages of his Rent . But if the Ten that lost be either dead , or were of covin with him that recovered , then restitution shall be to him in the reversion of the possession it self , with the mesne , issues and arrearages , after such death and recovery by covin .

14 E. 2. Of Sheriffs and green wax , if the petty Jury appear not at the first grand distress against them , or a Nihil be returned , the grand Jury shall be taken by their default .

32 H. 8. c . 3. Made perpetual 13 El. cap . 9. In a sute before Justices of Record not concerning life , an attaint is given against the petty Jury , and every of them , and the party himself .

The process against the petty Jury and grand Jury , shall be summons and re-summons , and distress infinite .

Open proclamation shall be made in the Court where the distress is awarded more then fifteen days before the return of the distress .

The grand shall be taken in default of the Defendant , or petty-Jurors , or any of them .

The petty Jury that appear , being the same persons , and the writ , process , return , assignment of the false oath good , shall have no answer , but that he made a true oath , except the Plaintiff or Demandant hath been non sute , or discontinued , or had judgment aaainst the petty Jury upon his sute of attaint . But the party himself shall plead any thing only in Bar of the attaint . Notwithstanding which plea , the grand Jury shall without delay inquire of the truth of the verdict . Such a day shall be given in the Process as in a writ of dower , and no essoyn or protection allowable .

By the death of the party , or one of the petty Jury , the attaint shall not abate , nor be deferred against the rest , as long as two of the petty Jury shall live .

Every attaint shall not be in the Kings Bench , or common place , and the Nisi prius granted upon the distress by the discretion of the Justices . And every of the petty Jury may be by Atturney . The non sute or release of one when there be divers Plaintiffs , or Demandants in an attaint , shall not prejudice the rest .

Every one of the grand Jury must have 20 marks a year Land of Free-hold , out of antient demesne . But if the value of the thing in sute be under the value of forty pounds , then five marks a year , or a hundred marks worth of goods sufficeth for default of such sufficient Jurors , within the same Country , a Tales shall be awarded unto the next .

11 H. 6. cap . 4. The Plaintiff shall recover costs and damages against the Juror or Defendant , that pleads a fained plea in delay . Audita querela is for one being or to be in execution to relieve him on good matter of discharge which he hath no means to plead . As if one having a release , 22 H. 8. 56. be taken in execution in one Court , as in the Common place , by Writ out of another ( as out of the Chancery ) returnable in the Common place , upon a Recognisance , or condemnation in the Chancery . ( But if the Recognisance or condemnation had been in the Common place , then they might have awarded process upon 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 Sheriff returneth him warned : otherwise it is upon a Nihil returned ) if a release or acquittance be made unto him after the Scire facias sued , if after verdict and before judgment they have put themselves into arbitrement .

The Process where the Audita querela is sued , 12 H. 4. 6. 15. Br. Audit quaerelae . 15. 22 H. 6. 56. 12 H. 4. ibid . 47 E. 3. 1. 17 E. 3. 3. 28 E. 3. p. Old N. Br. 66. before execution is a venire facias and distress , and upon default after appearance and plea pleaded , a distringas ad audiendum Judicium , for thereby Judgment is to be given against him . And in this case of an Audita querela sued before execution , he may have a Supersedeas upon good matter of discharge surmised in the writ of Audita querela , to stay for once the execution upon sureties , so 11 R. 2. Supersed . 14. can he not being in execution . Neither 2 H. 7. 12. 22 H. 6. 34. can he have a Supersedeas before execution oftner then once , though 43. E. 3. 28. F. N. B. 104. q . cont . it be upon new matter . But if the F.N.B. 204. q . Audita querela be abated for variance from the Record , or such like , there in another Audita querela , he may have a second Supersedeas .

22 H. 6. 56. 15 E. 4. 5. After execution the process is a Scire facias , as if he be brought in by a Capias , ad satisfaciendum , for there he is in prison , otherwise it is if he be not taken by a Capias , but come in gratis . And this scire facias is only for the more hasty expedition of the party that is in prison , for if the process should be by distress infinite , peradventure the party would lose issues to keep the others body in perpetual prison .

CHAP. 48. Of certain special Writs wherein no Process lyeth .

THus far of an action , and the several parts of it . And of writs both Original and Iudicial , that begin or prosecute the Action . Beside which , there be certain other Originals out of the Chancery , which are as it were special anomalies and exceptions from the former . Being not diductory to bring any matter into plea or solemn action , but only Commendatory or Prohibitory to do or leave something undone . And therefore no Process at all lieth in these writs , but only an F. N.B. 6. b . 158. d . 134. a. Old N.B. 15. 35. Attachment upon a contempt , for not executing or obeying them .

Of which nature are ,

1. Commendatory ones , these that follow . Dote assignanda , F. N. B. 263. c . is for the wife of the Kings Tenant , when the King is intituled by office of Land , whereof she is dowable , always directed to the Escheator . And may be either to deliver her such part of her Land as is already assigned to her in the Chancery for her dower , F. N. B. 263. d . or for the Eschetor himself , to assign her part unto her .

If her husband held in chief , then she must first take an oath in the Chancery , F. N. B. 263. c . not to marry without the Kings licence , before she can have this writ . But if he held of the King by Knights service , as of a manor , or if he held from one that is in ward to the King by reason of his non-age , F. N. B. 264. a. there she shall not need to take any such oath .

Homagio capiendo , for tenant by homage auncestrel to compell the Lord to receive his homage , 45 E. 3. 23. and is to save his warranty and acquittal , which he loseth if he be impleaded before the Lord have received his homage .

Scutagio habendo for the Lord to have escuage of his Tenants by Knights service , F. N. B. 83. c . when the same is due , by reason of any voyage Royal made by the King in proper person , or by his Lieutenants against the Scots , or them of Wales .

F.N.B. 82. a.c. And to make his son a Knight , or to marry his daughter , for the Lord to have this aid of his Tenants , where it is due .

De Corrodio habendo , & de Annua pensione , for the King . The F.N.B. 230. a first to have a corodie for his servant , the F.N.B. 231 g other to have a pension granted to his Chaplein F.N.B. 230 a till he be promoted to a benefice . Both F.N.B. 230 a & 231. g . these where the same are due . As F.N.B. 230 a of common right a Corodie is due from every Abbey , Priory , or other house of Religion , whereof the K. is founder in the right of his Crown . A Fit . ibid . F. N. B. 229. b . pension from every Bishoprick in England or Wales .

De libertatibus allocandis , for one whether a singular person , Burgess , Citizen , or other , or a body corporate , impleaded before the Kings Iustices of the one Bench or other , Justices errants , Justices of the forrest , &c. to have the liberties granted them by the King or his progenitors , to be allowed where the Justices will not make allowance of them . And therefore is to be directed to the Justices themselves , not to the Sheriff for he is but their officer , and subject to be amerced by them , if he do not his office as he should .

Old N. B. 15. De executione Judicij , to have a Iudgment executed , whether the same were given in a Court Baron , viz. the Court of the Lord , Hundred , or County Court , by writ of right Justicies , or plaint without writ , or in Court of Record . The same to be directed to the Sheriff , if judgment were given before the Bayliff in the Hundred or Lords Court , to the Coroners if it be before the Sheriff in the County Court , to the Justices themselves , if it be in a Court of Record . And this writ is a Justicies .

De restitutione temporalium , where the temporalties before seised into the Kings hands , F N B. 169. 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 fear of corporal hurt , to be killed , beaten , F. N. B. 79. assaulted , &c. or of the burning of his houses , to be secured of peace in that behalf , against the party whom he feared . And may be for either of these causes alone , or for both joyntly in one writ , where a corporal oath must be taken by him that standeth so in fear . And that was wont to be in the Chancery before some Master of the Chancery , by the antient course of Law . But now they use 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 than upon any just cause . The common form of this writ since the Statute 1 E. 3. cap . 16. which appointeth Justices of Peace , is for the ease of the people somewhat altered , and it is called a supplicavit , directed sometimes to the Justices of peace , and to the Sheriff , sometimes to the Justices or one Justice sole , and sometimes to the Sheriff only to compell the party to find sufficient mainperors in a reasonable summe of money , that he shall neither do nor procure any bodily hurt , or burning of the parties houses ; or upon refusal , to commit him to the Gaol till he do .

Old N. B. 33. De vi Laica removenda , to remove all lay force in any Church , especially where debate is between two persons of a Church of prebends about the title , and one with force and arms holdeth the other out : and F. N. B. 54. this writ may be as well upon the bare surmise of the Incumbent or party grieved , without any Certificate made by the Bishop into the Chancery , of such force as upon , and by reason of such Certificate . And there be two several forms of Writ in these two cases , but hereby the Sheriff may not remove the incumbent out of possession of the Church , whether he be in by right or wrong , for then he may have a writ to restore him again , but only remove 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 .

F. N. B. 185. d . Of cleansing streets to have the waies , streets or lanes of a Town Corporate , of the Suburbs of it , to be made clean , and so kept , when they be stencht , by dung and filth , hogsties , and such like , whereby the air is corrupted and infected , to the indangering of the health , or other great discommodity to the Inhabitants or Travellers that way . But it seemeth that no such writ lyeth for the village in that Countrey , though they be not kept clean , but for Corporate Towns only .

De Leproso amovendo , F. N. B. 234. to remove a Leper or Lazer , that will come abroad to Church among his neighbours from the company of men to some solitary place of dwelling , And that is for fear of infecting of them : but if he will keep in his house , and not come among his neighbours , then it seemeth he shall not be removed thence , nor that any Lepers or Lazers shall be removed by this writ , but only such as appear to be so by their speech , ulcers ▪ rottenness of flesh , stink , and such like , and not those , that though they be infected inwardly , yet appear not so without .

De excommunicato capiendo , Old N.B. 34. & 35. upon a significavit , so we call the Ordinarie Certificate into the Chancery , that one excommunicate standeth out forty days , and will not be justified by the censures of the Church to imprison , and so to justifie him , by his body , till he satisfie holy Church for his contumacy and cohtempt , and this Writ also is a Justicies .

De excommunicato deliberando , Old N. B 35. a. F. N. B. 63. a.f. to deliver him out of prison when the Chuch is satisfied , and hath absolved him .

De cautione admittenda , F. N. B. 63. when one taken by an Excommunicata capiendo , offereth sufficient pledge , or caution to obey holy Church , which is refused to have that caution admitted and to be delivered : and may be either to the F. N. B. ib . Ordinary himself to command him to be delivered , which the Ordinary may do by word , or to F.N.B. 63. 6. the Sheriff to make such deliverance , and then it is withal , a de excommunicato deliberando .

De heretico comburendo , to cause one convicted for an Heretick to be burnt . F. N. B. 269. And this as the other writs to be directed to the Sheriff , the party being committed by the Clergy into the secular power . But by the Statute 2 H. 4. cap . 15. Every Bishop in his Diocess may convict a man of Heresie , and cause him to abjure , and after convict him anew , and condemn him to the fire , and thereupon make a precept to the Sheriff to take and cause him to be burnt , and the same a sufficient warrant to the Sheriff without any writ of the King : but that Statute is repealed by 25 H. 8. c . 14. so as now the Ordinary cannnot commit him to the lay people to be burnt without the Kings Writ first purchased .

De coronatore exonerando , to discharge a Coronor of his office upon just cause . F. N. B. 163. n . As if he cannot attend his office for other businesses of the Kings that he is imployed about in the same County , or be old and feeble , or unfit for the office , and have not lands and tenements sufficient in the County , whereupon he may dwell according to his estate , or have the Palsey , or dwell in the remote parts of the Shire , so as he cannot conveniently exercise the office , or such like .

And this writ is directed to the Coroner himself . F. N. B. ibid .

De exonerando viridario forestae , to discharge a verder of the forest in like sort .

De coronatore eligendo , F. N. B. 163. k . to chuse a Coroner , two or three , if there need of so many in full County by the Free-holders of the County . And this is commonly upon the death or discharge of some of the Coroners , when it is upon the discharge , then this Writ rendreth the cause of their discharge .

De electione viridariorum forestae , F. N. B. 1●4 . c . to chuse a verder of the Forest in like sort . Conge deslier , to Dean and Chapter , or such like to chuse their Bishop .

Statutes .

25 H. 8. cap . 20. For the election , nomination , presentation , investing , and consecrating of Arch-Bishops and Bishops .

A writ for the Royal assent to signifie to the ordinary his assent to the Election of an Abbot , &c. and to will him to execute that which belongeth to him , therefore this is always to the ordinary himself .

De securitate invenienda qd . se non divertat ad partes exteras sine licentia Regis , to compel one to find sufficient mainpernours in a reasonable sum of money , not to go into forreign parts out of the Realm , without the Kings licence , nor any thing there attempt in contempt or prejudice of the K. or hurt of the people , nor send any thither for any such cause . And as a Supplicavit may be directed to the Justices of peace , or Sheriff , or both . And every one upon surmise to the Chancellor may sue this Writ for the King ; for by the Common Law evevery one that will , may go out of the Realm for Merchandize , travel , or other cause at his pleasure without the Kings licence . But the King may restrain any subject by this Writ , or by his privy Seal or Signet , or by Proclamation without Writ , or other commandment , because every man is bound of common right to defend the King and his Realm .

5 R. 2. cap . 2. None shall go out of the Realm without the Kings leave upon pain of forfeiture of his goods , except the Lords and other great men of the Realm , known Merchants , and the Kings Souldiers .

Statutes repealed . 4 Iac . cap . 1.

All Dedimus potestatems . The principal of them are these .

Dedimus potestatem , to give the Kings Royal assent to the election of an Abbot , F. N. B. 170. b . or such like , made or to be made , and to signifie so much by his Letters to the Ordinary , that he may do that which belongeth to him , and to receive fealty , &c. commanding the party to do the premisses . And therefore is directed to the party himself that must do these things .

Dedimus potestatem de fine levando , F. N. B. 156. g Old N. B. 103. to certain persons to take the acknowledgment of a fine out of Court , when one that hath agreed in the Kings Court to levie a fine , is so feeble that he cannot travel , for every such dedimus potestatem , supposeth a Writ of covenant , F. N. B. ibid . 1 H. 7. 9. Old N. B. ibid . or such like hanging . 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 Justs . of Com . Place , the fine shall be ingrossed . The chief Iust . of the Com . Pleas may take the acknowledgment of a fine without any dedimus potestatem , so can no other Judge , 1 H 7. 9. de rigore Juris . But a Justice of assise by a general Patent with a clause of non obstante may .

Statutes .

Stat. Carliff 15 E. 2. The dedimus potestatem shall be directed to two of the Justices , or one Justice and a Knight .

Prerogative .

Dedimus potestatem de atturnato faciendo , for the Iudges to admit an Atturney for one in a sute , F. N. B. 25. c . whether it be for the Plaintiff or Defendant , Demandant or Tenant , and in what action or sute soever the same be . This Writ must be directed to the Judges themselves , and groweth by the Kings Prerogative , for at the Common Law the parties must appear in proper person , not by Atturney , although the Statutes gave power afterwards to make Attorneys in divers cases , as appeareth before . But before those Statutes it seemeth that the K. might grant to any man to make an Attorney in any sute . And one reason thereof was , because it is no error though the Judg admit any Plaintiff or Defendant to make an Attorney , where by the Law he ought not .

Prohibitorie ones are these that follow

Old N. B. 29. a. & b . A protection cum clausula nolumus to free ones possessions , land , rent , corn , cattle , carriage , &c. that nothing be taken against his will for the Kings business , by his officers or ministers . This may be as well for a secular as a spiritual person , and groweth by the Kings special favour .

F. N. B. 176. a. Parsons or other spiritual persons not to be charged to the payment of fifteens , for goods in their possession annexed to their Churches ,

Quod clerici non eligantur in officium balivi , Old N.B. 175. b . for a Clerk , so is every one termed that is within holy orders , not to be chosen an officer , as Bayliff , Beedle , Reeve , &c. for his lands , and this writ reciteth that by the Common Law they ought not , and commandeth that if any distress or amerciament be levied , in this respect , it be restored .

F. N. B. 55. e . 14 H. 8. 6. Shelly A prohibition to forbid tenant in dower , or by curtesie of England , or gardein by Knight service , or in soccage , to commit waste to the destruction of the inheritance . The form of the Writ . F. N. B. 8. c . 14 H. 8. ibid . But this Writ lyeth not against lessee for life or years , for they come in by their own lease ; but in the other cases before the Law maketh their estate .

Statutes .

Glocest . cap . 5. A man may have a Writ of waste out of the Chancery against Tenant by curtesie or dower , or otherwise for term of life or years , and being attaint of waste , he shall forfeit the waste and treble damages .

West . 2. cap . 14. The process in a Writ of waste shall be summons , attachment , distress , and if he come not , then a Writ unto the Sheriff , taking with him twelve men to go to the place wasted , and there inquire of the waste , and upon that waste returned , judgment shall be .

11 H. 6. cap . 5. Where the Tenant grants over his estate , but notwithstanding takes the profits , and commits waste , an action lies against him .

Mag. chart . cap . 4. The Guardein may not commit waste on pain to lose the wardship .

Cap. 5. And must repair and sustain the houses , of the profit of the land .

Glocest . cap . 5. If the Gardein commit waste , and the Wardship lost answer not the value of the damages , before the heirs age , then he shall render the damages to the heir

Artic . sup . chart . cap . 18. Eschetor committing Waste upon Wards Land , shall answer damages as is ordained before by Statute against them that do waste 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 have a ward to answer to the King of the issues , and commit waste , the heir shall have an action of waste as well within age as of full age , and whilst he is within age , if he cannot , his next friends shall have the sute for him .

14 E. 3. cap . 12. The heir when he cometh to full age shall have an action of waste against the Guardeins and Farmours to whom the King shall let the land in ward according to that Statute .

Westm . 2. cap . 22. A writ of waste given for one Joyntenant or Tenant in Common , against another , wherein the Defendant to be at his choice to take his part in certain ( and then to have for his part the place wasted ) or to agree from thenceforth to take nothing more than his Companions do .

Glocest . cap . 13. Hanging a plea by writ the Tenant may not commit waste , nor estrepment of the land in demand , and if he do , the Demandant may have a Writ to cause the land to be kept that no waste nor estrepment be done .

A quo minus for grantee of estovers , as houseboot or heyboot , Old M B. 159. &c. to restrain the grantors from committing waste , so as he cannot have his estovers .

De exoneratione sectae , for Tenants by sute of Court , F. N. B. 158. or other rent or services that they be not distreined to do 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 Chancery of Lands so in ward , and the Tenants paravail of such a ward , that is to say , where the other Lords , of whom the heir holdeth do distrein , for during such time as the heir is in ward , either to the King or to his Committee , he is to do no sute of Court or other services , and if any distress be taken , it is by this Writ to be restored .

De deonerando pro rata , F . N.Br . 235. b . to discharge the Tenant of parcel of the land according to the rate of his land when he is lawfully distreined for all the rent or services . As where a man which holdeth a C. Acres of Land by the service of repairing a bridge , alien in Fee 20 Acres to one man ▪ and 20 to another , and after , upon this presented , one of the aliens is only distreined to make reparation , or where the Kings Tenant by Fealty 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 distrein 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 Fealty and Rent , alieneth part of his land , for there the Statute it self restraineth the Lord that he cannot distrein the alienee , but after the rate and value of the Land which he hath purchased .

F. N. B. 226. i . De essend . quiet . de Theolonio to officers of Towns or other places not to grieve spiritual persons , or other that ought to be quit of paying of toll , murage , pannage , poutage , &c. whether by the Kings grant , or by prescription .

F.N.B. 165. a.d. De non ponendo in Juratis , to discharge Peers of the Realm , or other persons priviledged , as Clerks that are in the Kings service , &c. from being of Iury , unless their presence be for any special cause necessary . F. N. B. 165. c . And this may be directed either to to the Sheriff not to put them into Juries , or the Judges to discharge them . But if a Peer of the Realm be returned , he must be sworn or lose issues , if he appear not , unless he bring the Writ .

F. N. B. 85. b . Ne exeas regnum , to the party himself to inhibit him to go into foreign parts without the Kings licence .

The Table . A ABatement of the Writ , 49. for what causes , ibid . Acceptance of a grant determineth prescription , 22. Accessary things are of the nature of the principal , 23. Accompt , 302. Accord what it is 181 differeth from an arbitrement , 181 , 183. Action what ? 225. where local , and where not , 251. Action of the case wherefore brought 185 , 186. for a corporal hurt dieth with the party , 17. Acquital , of the donees in frankmarriage by the donor , 141. of the donee in frankalmoigne by the donor , 139. Ad terminum qui praeteriit 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 , trial between him and a denizon shall be per medietatem linguae , 411. being enemy shall not have a personal action , 28. an obligation made to him shall go to the King , ib . his goods shall be to their use that seise them , 178. Aid what , 145 , 146 Annuity what , 161 the use of the writ of annuity , 301 Amercement the Qu . shall not be amerced , 185. In what cases the Plaintiff shall be amerced , 189. In what cases the defendant , ibid officer amerc . 229 Amendment done by the Justices of the Clerks error , 228 Apportionment a duty growing upon a contract cannot be apportioned , 180 Appeal , 310 Approver , 387 Assault , what , 202 Assise , 284 Atturnment of Tenant by homage ancestel destroyeth the warranty , 144. In what cases it is necessary , 156. Of Tenant of the freehold is sufficient , 157 Averment cannot be against an Indenture , 109. nor a Record of Court , 131 Authority , derived cannot be greater than that from which it is derived , 11 B BAilment , of two sorts , 179 Barons , what , 86 shall not be impleaded by that name , 87 Bastard , who , 117 cannot inherit , ib . In what case he may gain a right of inheritance , 118 Battery , what , 203 when not punishaable , ibid . Boroughs what , 92 the difference between them and Towns , ibid . Burglary what , 217 C CAuse , if that cease the effect ceaseth also , 8 , 9. things construed according to that which was the cause thereof , 10 Causa Matrimonii prae locuti , 264. Challenge , 412 , 413 Claim , 121. Of villeins goods by the Lord , 159 Colour , in giving it what must be observed , 380 , 381 Commissions , 318 Common what , 157 Common-wealth , things which concern it favour'd , 39 Confession , 387 Confirmation what , 108 Consideration , it maketh the promise binding , 34. What shall be a good consideration to raise an use , 25 Consolidation what , 90 Conspiracy , 305. how made , and how punished , ibid . Consuetudinibus , & servitiis , 272 Contempts what , 205 Coparceners , who , 118. the eldest shal have the chief house , 132. she only shall do homage 142. unles the land be held of the K. 144. they may compel partition , 36 Corody what , 157 Coroner , his Court , 243. must take no Fee , 244. In what case process 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 spiritual are either presentative or dative , 93 Churchwardens a Corporation , 178 Count what , 357 County 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 therby , 129 Shall not be of a possession in Law , ibid . why so called ibid . D DAy , the Sabbath is no day for Law cases , 7. Sale upon that day altereth no property , ib . if the end of the term , or day of return be on that day , the day following is taken instead of it , 236. Things done in the day , favour'd more than those done in the night , 38. Debt & detinue , 294. Deceit , 305. what , 188. in what cases a man may have remedy , ibid . 189. Deeds what , 108. of two sorts , 109. to whom they belong ibid . void in the beginning cannot have a good perfection 12. not available if read falsely to an unlearned man . 190. Deodand what , 214. Departure what , 50 , 51. Discontinuance what 109. how made , ib . Disseisin what , 195 , Distress , 135. what may be distreined , and what not ; ibid . the King may distrein where a common person may not , 136. Where distress may not be taken , ib . it may not be driven forth of that Hundred where it was taken , 137. A Milstone cannot be distreined , 39. Dower , in what case the wife shall be endowed , 125 , 126 is forfeited by granting a greater estate , 114. barred by living in adultery , 127. by detaining deeds concerning the inheritance , 126. by consenting to the Ravisher , 204. Dum fuit infra aetatem , 264. Dum non suit compos mentis , 264. E EJectione firmae , 310. Enterpleader what , 374. Entry , whereof one copercener shall be the entry 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 tarry in his place but one year , 241. Error , being common goeth for Law , 41. of the Clerk of the Court amended , 227. if the Sheriff suffer a common recovery it is error . 19. Estoppel , made by pleas in bar , and replications , 32. but matter in the writ or count doth not , 33. Exchange , warranty knit thereto by Law , 116. when good and when otherwise , 103 , 104. Executors , they must prove the will , 171 may not refuse after administring , ibid . what duties they must first discharge , 172. if an Executor is Executor to the first Testator , 173. must pay duties upon record first , 233. Extinguishment , if a woman marry the obligor the debt is extinct , 40. F FEalty what , 138 Felony what , 210 Feesimple of two sorts , 121. is by giving lands to Mayor and Comminalty without naming successors , 125 Fine for lands aliened without licence 143. by the defendant in an action of Trespass , 189 Franchise what , 164 of divers kinds , 166 Frankalmoign what ? 138 , 139. the Lord must warrant such a Tenant , 139 Frankmarriage what ? 823. Land cannot be given in Frankmarriage with a man , 123. land so given is held by fealty only , 140 , 141 Forfeiture , what shall not be forfeited by attainder of treason 15. of a termour by plucking the inherience out of him that hath it , 113. by alienation without licence , 142 , 143. of a franchise by misusing it , 164 G GAvel kind , 78 the custom thereof not changed by having a fine and recovery at Common Law , 15 Grant , of an infant , 102 , 103. by compulsion , 102. cannot be of things in action , 107. what things may not be granted over , 17 H HEir what ? 116 in what case he shall be bound by his ancestor , 119 Hereditaments what ? 111 , 134 Heresie what ? 219 the punishm . thereof , ibid . Homage what , and how performed , 142. to the King shall be taken by his Chamberlain , ibid . ancestrel ? 144 incident to Knights service , 149 Hotchpot , what ? 124 In what cases it shall be , ibid I IDeot , the King shall have to his own use and his possession during his Ideocy , 95. his grant is void , 102 , 103. Incidents cannot be severed , 15. hmage incident to Knights service , 149 Infant , his Will nothing worth though he dieth at full age , 12. his grant void , 102. unless for things necessary , 103 Joyntenant who ? 97 the survivor shall have the whole , ib . cannot sue one another , 37 Issue what ? 396 Juris Utrum , 202 Jurors returned to appear at the Sheriffs turn , 243. tryals by Jurors , 399. 400 , 401. Justices , 314 K KIng , he is the Head of the Commonwealth , 81 he cannot be non-sute , 82. alwayes present in Court , 81. when bound by act of Parliament , 84 , 234. all Land is holden of him , 133. being Tenant in Common of an intire Chattel real , shall have the whole , 178 how his grant shall be taken , 101. cannot dispence with an Act of Parliament before it be made , 235 Knights service , homage is incident thereunto . 149. L LAnd what , 130. what is comprehended under that name , 131. Lapse what , 90 Law defined , 1 Native or positive ; 2 It favoureth right , 45. Leases , what Leases made by a Corporationare void , 192 Lunaticks , the King shall have their possessions , 96 M MAintenance , a son may maintain his Father , 25 Maym what , and whom , 204 Manslaughter what , 212 , 215. is pardoned by a pardon of murder , 21 Menace what , 201 when a trespass , 202 Mesne what , 140 must acquit the tenant of all services against the Lord paramount , ibid Misprision what , 209 Murder what , 215. when one may justifie to kill another , 35 N NEcessity , it saveth the party 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 removed , 188. the Kings Licence doth not make it lawful ▪ 234 Nuper obiit . 293 O OAth taken by Officers , 230 Office what , 162 162. a grant thereof to an unskilful man is void . ib . offices for the King . 323 Officers what . 229 Ordinary , every Parson must be presented to him . 89 may collate after six moneths avoidance 90. by consent of Patrons may unite two Churches . ib . may administer the goods , where no Will is 173. shall be answerable for the intestates debts 174 immediate officer to Courts for spiritual matters 237 Oyer of a deed . 366 P PArson , is a corporation , 87. is freed from parsonal charges , 88. to whom presented , 89 how inducted , ibid , the Church and Churchyard belong to him . 131. One cannot present himself to a benefice . 19. chargeable for an annuity g●anted by his predecessour 23 Peers where one is a party to the action , a Knight must be of the Jury , 412 shal be tried by his Peers , ib . exempted from doing suit at Courts . 241 Petty treason what . 218 how punished , ibid . of divers sorts 230 Plaints what , & where holden . 320 Pleading , what . 359 the manner thereof 360 of several sorts 362 , 363. Pleas in barr . 378 Pypowders that court incident to Fairs and Markets . 246 trials there shall b● by the Mer●h●●●● . 4●● P●ssession what . 104 it prevaileth where the right is equal . 30 Possibility , may preserve an Act from being void . 33 Prescription , where it maketh right , and where not . 132 is as available as any grant . 104 Presentments . 335 Property , not changed by sale upon the Stabath day 7. cannot be had in wild beasts and fowls of the air . 176 when the Lord hath property in an estray . 172. 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 devested by wrongful taking of goods . 199 not altered by stealth . 210 Q QUare impedit . 274 Queen , she may have an Action in her own name , 86. making leases &c. they shall be 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 privity . 115 Remainder , what . 113 Remitter , what . 194 when issue in taile shall be remitted 18 Rent , charge what . 155 seck what , ibid . reserved upon a gift of lands in Frankmarriage , when good . 18 Rescous . 310 Reversion , what . 113 Right , what . 106. a writ of right , 270 of Right patent . 312 Robberie , what . 217 S SEisin , the use thereof . 132. from what time it s●all be alledged . 258 Services are common to all cert●in Estates and proper inheritances . 138 Divine Service , what . 139 K●ights service , what . 149 Sheriff , suffering a recov●ry it is errour . 19. felony in him to behead one that should be hanged 31 Sine assensu capituli . 265 Soccage tenure , what . 147 Sodomitry , what . 219 Suit of Court , what . 144 cannot be done by deputy . 16. who shall be constrained to do it . 145. must be done at the Sheriffs turn by every one of 12 years of age . 241 women & Peers of the Realm are excepted . 241 242 T TAles , 414 , 415 Terms when they begin , and end , and their seve●al r●turns . 236 Tenement , what 13● of two sorts . ibid . Testament , what . 167 all chattels may be devised , ibid what lands may be devised . 169 , 170 Title what . 106. pretensed titles when they may be sold . 250 Town , chargeable with the goods of offenders . 207 Treason what , 2●0 , 2●1 V VAriance between the writ and obligation . 49 View 366 Villein , what 159 his original , 160 , 232 the lord must claim his goods . 159 where the lord may not seise him , 160 his children are villeins , 160. what shall be an infranchisement ibid . sha●l make free land to be vi●lein land 23 being an executor may have an action against his lord 27 Uncertainty maketh the grant void 49 Void things good to some purpose 62 Use , feoffment to the use of a villein the Lord may enter . 15● Usurpation , what 196 how done ibid . w WAger of battel shall not be by Cosi●s in a writ of right . 25 Ward shall be his that can first hap him 30 Warranty , what word mak●th it . 115 knit by Law to every exchange . 116 occasioned by homage auncestr●l . 144 which is destroyed by atturnment . ibid . where it maketh a discontinuance . 193 the writ of warrantia chartae . 278 Waste , the wise shall not be charged for waste done by the husband . 26 judgement shall not be given in waste , where the waste is but 12 pence 29 Way granted over anothers ground shall be to the grantee onely . 17 & he cannot assigne it over , 31. given by law to a thing excepted , 63 Women may relieve their husbands though it be felonie in another , 25 are free from suit of Court , 241 when said to be waved , 242. shal be endowed of the best possession of her husband 26 Wreck , shall not be , if any living Creature escape out of the ship 177 Writ what , 237. of two sorts , 252. abated for false Latin . ibid . FINIS .

A Catalogue of some Law-Books , Printed for the Booksellers in Fleet-street and Holborne . Cokes Entries . Fol. Cokes Reports compleat , with a Table . Rastals Entries . Cooke on Littleton . Yelvertons Reports . Daltons Justice , Davis Reports with the Table . Sheppards Grand Abridgment . Placita Latinae Rediviva . Swinbourne of Wills . Wingates Abridgment Natura Br●vium . Termes of the Law . Wilkinsons Office of Sheriffs . Compleat Copyholder . Fortescu de Laudibus Legum Angliae . Glanvil dr Legibus . Doctor and Student . Littletons Tenures in French and English .

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