LAW, OR, A DISCOURSE THEREOF, IN four Books. Written in French by Sir HENRY FINCH Knight, his Majesty's Sergeant at LAW. And done into English by the same Author. CICERO. Leges nobis charae esse debent, Non propter literas, sed propter earum rerum quibus descriptum est utilitatem, & eorum qui scripserunt sapientiam. LONDON, Printed for the Society of Stationers. 1627. 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 useful and ingenious: so that this only of all the Books of Law (as concerning the Method) is without Precedent. 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 explained by Statutes concerning the same; Which taken apart will afford a continued sensible discourse. In the second is contained the proofs and examples of those Maxims. And because that precious Flower of the Crown, the King's Prerogative, may not be valued in the hands of a common person, such cases as concern the King are 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 descend 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 ex●enuat the faults, either those material in the copy, or literal ●n the Print, the first a judicious Reader is able to supply, a little ●abour will correct the rest: He ●hat is courteous will remit both. To plot and to perfect at once ●s to be more than man. Such was the pain to compose that ●he child wasted its own pa●ent, therein nevertheless being unhappy preventing the ●lessing of Perfection, and becoming an Abrotive; But be ●ou 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 embarked in the common Censure of al● Men. J. L. THE FIRST BOOK of Law. CHAP. 1. Of the Law of Nature. La is an Art of well ordering a Civil society. In Greek it is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a distribuendo, because it gives and distributes right to every one. In Latin it hath its name Lex, not a ligando, as some would have it, although Law indeed be vinculum civitatis, nor a legendo, which is, to read; though I found that to please Bracton most; but as he that best could tell derives it, a legendo, Bract. lib. 1. ca 3. Cicol. 1. de Legib. which is to choose, because of the choice & exquisite wisdom that is in it. Nam ut il● (saith Tully speaking of the Grecians) ●quitatis, sic nos delectus vim in Lege ponimus, & proprium utrumque legis est. The Hebrues ●all it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (thorah) from the root 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 (jarah) which is to teach: because it is the doctrine of truth, as Plato saith in his ninth book 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Leges ad hominum doctrinam ponuntur. So that Law carrieth with it, and hath (as it were) enclosed in the name and nature of it, those three laws 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and golden chain of all good learning, Lex veriattis, Lex justiciae, Lex sapientiae. And therefore is not only 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, scientia, but Plato li 4 de Reipub 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, Scientificissima. Whereupon Plato telleth us, Nomen menti consentaneum, (that is, to God, whom the Philosophers call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, or men's, which is Truth, Wisdom, and justice itself) possidet divina nobis & admirabilis lex. So that the name itself doth show the Author from whence it came: and as he saith, Qui tanti talem genuere parents. 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 didiscimus, 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 iuris ab illa summa Lege capiamus exor dium, 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 two fold, like those two great ●hts which God hath set in the firmament of our heart, Nature and Reason, ●or being proper to a man, as he is a man and reasonable creature, they may be divided as reason itself is divided. They that ●●ue travailed most in the grounds of Nature, distinguish that excellent faculty of Reason (which of all earthly creatures man only hath) into two other faculties, 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the mind, and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or the reasoning part: 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 they call that faculty of the soul that offereth unto us things clear & lighltsome of themselves, without any further reasoning or discourse. By 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 they mean that faculty of the soul, that by discourse of reason doth deduce and draw one thing from another. From hence the masters and professors of the art of reason, make judgement (which is the flower of all reason, and in effect nothing else but ratio coniuncta, 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 secundary rules of reason, which is their Dianoeticum, with us the Law of reason. And these very names of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, which is all one reason and the discourse of reason, both Plato and Tully speaking of the laws do give them. The law of Nature is that sovereign reason fixed in man's nature, which ministereth L●x natura est ratio summa incita in hominis naturaquae iube● ea quae facienda sunt, ꝓbibetque contraria. common principles of good and evil. In effect nothing else but those 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or Communes noticiae, 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 speaketh 2. de legibus. Principem illam legem & Cic. lib. 2. de Leg. ultimam mentem esse dicebant. Where he likewise calleth it the high & supreme law of all. And in another place, Natura iuri● 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. 2. Of the Law of Reason. THE law of Reason is that whic● deduceth principles by the discourse of sound reason. Whereof T● saith, Ratio cum est in ment bomini● confirmata & confecta, lex est: An● Cic. lib. 1. de Leg. again, Lex est radius divini luminis, and r●cta ratio summi jovis. Plato, by way of Poetical Plat. l. 1. de Legib. fiction doth imagine that there were a● the first, two contrary humours that raigne● in man, and (as it were) two fools of hi● council that did rule him, Pleasure an● ●●ine. Each had two other affections to ●●tend them, Hope of good things to come, and Fear of future evils, whereby men's minds were haled and pulled hither and thither, and diversely distracted. Than to govern both, God set in man 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, the reasoning or discoursing part, to teach what is good or bad in either; which he calleth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉, the golden and sacred rule of reason. We may term it, that uncorrupt reason which Adam had at the first in full perfection: But through Adam's 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, that the light of this, as the light of the Moon, shineth more obscurely: But yet shineth, so that from it all the other Laws receive their Light. And hereupon are grounded more or less clearly, diverse rules of reason, that every where go for undoubted Oracles, which (confirmed by judgement, learning, and much experience, and rightly and well applied) are so many stars and shining lights, to direct our course in the arguing of any case: yea such is their singular and incomparable use, that, as Lords paramount, they rule and overrule the grounds themselves. And rather than any of these (rightly understood) should fail, the very maxims and principles of the positive law will yield, as to a higher and more perfect Law. CHAP. 3. Of rules taken from other learn. THE rules of reason are of two sorts; some taken from foreign learn, both divine & humane: the rest proper to Law itself. Of the first sort are the principles, and sound conclusions from foreign learn; Out of the best and very bowels of Divinity, Grammar, Logic; also from Philosophy natural, Political, Economics, Moral, though in our reports and yeere-bookes they come not under the same terms, yet the things which ther● you find are the same; for the sparks o● all Sciences in the world are raked up in the ashes of the Law: and well doth one say, Non ex Praetoris edictis, neque a 12 tab●lis, Cic. l. 1. de legibus. sed penitus ex intima philosophia hauriend● iuris disciplina est. He that will take th● whole body of the Law before him, an● go really and judicially to work, mus● not lay the foundation of his building i● Estates, Tenors, the gift of Writs, an● such like, but at those currant and soun● principles which our books are full of. First from Divinity, the doctrines religion, the head and masterpiece of all the rest, whereof S. Augustine saith truly, Aug. lib. 9 de Civitat. dei. O●nium legum est inanis censura, nisi divinae legis imaginem gerat. From hence we have these two rules. To such laws of the Church as have 34 H. 6. 40. P●●sot. Angel's leys que eux de St. eglise ont en ancient escripture, covient pur nous a don●● credence: car ce● est common ley, sur que touts manner leys sont fondues, 4 Eliz. 265. warrant in holy Scripture, our Law giveth credence. 1 The Sabbath 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 Lord's 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, but it shall be Crastino quindenae paschae. F. N. B. 17. f. If a Writ of Scire facias out of the Common-place 1 Eliz. Dy. 16● bear Teste upon a Sunday, it is error, because that is not Dies iuridicus in Banco. No sale upon a Sunday shall be said a 12 E. 4. 8. sale in market overt to altar the property. Of Grammar, the rules are infinite in the Etymology of words, and in the construction of them, what their nature is single, what joined with other: among the rest which need not be remembered, this one we have common in our Books. 2. Words, in construction must be referred to the next antecedent, where the matter itself doth not hinder it. An Endictment of murder, found in this sort, That Eliz. fuit in pace etc. quosqu● 32. H 8. Dy. 46. b. A. vir praefat. Eliz. de D. in Com. S. Yeoman, did kill her, is good; for the addition Yeoman, must of necessity refer to the husband, because a woman cannot be a Yeoman; but an endictment quousque Alicia S. d● D. in Com. S. uxor I S Spinster, etc. is no● good against Alice S. for there Spinster being an indifferent addition, both for ma● and woman, must refer to I. S. which is the next antecedent, and so the woma● hath no addition. So of an indictment against 9 E. 4. 48. I S. seruiens I D. de D in Com. Midd● Butcher: This is not good, for, Servant is no addition, and Butcher referreth to th● Master, which is the next antecedent. From Logic; In the Maxim of causes and effects 3. The cause ceasing, the effect doth like wise cease. The King granteth an Office to one ● 5. E. 4. 8. b. 〈◊〉, and ten pound fee during life prooffis 〈…〉 illo, now if the King put him from his office the fee shall cease. The Executor, nor husband (after the 7. Eliz. 293. b. death of his wife garden in soccage) shall retain the Wardship, for the Garden 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, and the King pardon him the second 13. Eliz. 401. day of May, all felonies and misdemeanours, 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 misdemeanour is pardoned, and therefore all things pursuing are also pardoned. The King hath a Ward, pur cause de guard, and after maketh livery to the first 13. E. 4. 10. b. 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, than they shall be joint-tenants of the rent. It is no principal challenge to a juror that he hath married the party's mother, if she 14. H. 7. 2. be dead without issue, for the cause of favour is removed. 4. Things are construed according ● that which was the cause thereof. A man makes me swear to bring hi● 44. E. 3. 14. b. money to such a place, or else he will kill me, I bring it him accordingly: This is folony in him. So if he make me swear ● 14. Ass. pl. 20. surrender my estate unto him, and I do f● afterwards, this is a disseisin to me. One imprisoned till he be content ● 21. E. 4. 68 b. make an obligation at an other place, an● afterwards he doth so, being at large, ye● he shall avoid it by dures of imprisonment Outlary in trespass is no forfeiture o● 3. E. 3. 84. land, as outlary of felony is, for though the not appearing be the cause of outlar● in both, yet the force of the outlary sha● be esteemed according to the heinousness of the offence, which is the principal cau● and foundation of the process. A man and feme sole have a villain, an● afterwards entermarry, and the villain pu●chaseth land, they shall not have the lan● by entierties, but by moities jointly, or in common, as they had the villain. 5. According to that which was the beginning of it. If a Servant (departed out of his Master's 33. Ass. pl. 7. service) kill his Master upon a mali● that he bear him whilst he was his servant, it is petty treason. ●. erects a Shop upon the King's Freehold, 10. Eliz. Dy. 266. b. the King grants the land to B. in fee; A. before entry or seisor of the shop by the Kings Patentee, continueth his possession and dieth seized. This is no descent to ●●ll 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 Litlet. cannot make claim off from the land, if the dissessee 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 is his Masters, by recovery against his Master, thou'gh 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, or other matter in writing 19 E. 4. 1. b. cannot be discharged by an agreement by word. In an annuity growing by prescription 5. H. 7. 33. rien arere is a good plea, for this prescription is a matter in fait: but in an annuity by deed it is no good plea, without showing an acquittance. When a man auoides the King's title, by 4. H. 7. 7. b. 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 entitled by double matter of record; as one is attainted of treason by Parliament, and an office finds his lands, whereby the King seizeth them, The party may allege restitution by Parliament, and a repeal of the former act. 8. Things grounded upon an ill and voided voided beginning cannot have a good perfection. An Infant, or a feme covert make their 10. El. 344. will, and publish it, and after dying of full age, or sole, yet the will is nothing worth. One disseised of two acres in D. releaseth all his right in all his lands in D. and 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 an other 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 paramount, a thing shall never take benefit nor hurt by it. Two joint-tenants, one makes a lease 2. & 3. El. Dy. 187. for years of his moiety, reserving a rent, and dyeth. The surviving joint-tenant shall have the reversion of his moiety, 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 sueexecution 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 31. E. 3. joynder in aid 10. be viewed, and being viewed, 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, upon a Grand cape ad valentiam, 19 E. 4. 3. shall not loose the land, though he cannot save his default, for the process is only to this end to have him to appear. A man that is warned by Writ to answer 50. ass. pl. 2. to a matter shall not be driven to answer any other matter than is contained in that Writ, though the King be party. As if by office 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 seized into the King's hands for the Ideocie of I S. A cometh in and pleads, That I. S. when he was of perfect memory, made a release to one B. who enfeoffed A. This is good enough without showing any licence of alienation to discharge himself for the purchasing of those lands. In the maxim of Subjects and adjuncts. 11. Where the foundation faileth, all goeth to the ground. A Church appropriated to a spiritual corporation, 3. E. 374. b. becometh disappropriate, if the corporation be dissolved. A disseisor of lands in ancient demesne 49. E. 3. 8. the Lord confirms unto him to hold at the Common Law, the disseisee reentreth; now the land shall be ancient demesne again: for the estate (whereupon the confirmation should inure) is defeated. When an estate (to which a warranty is Lit. knit) is undone, the warranty also is undone. As if Tenant in tail discontinue, and the discontinuee is disseised (or make a feoffement 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, or wood granted to be burnt 12. El. 381. 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, the Lord releaseth his fealty; this is voided: 7. E. 4. 11. for fealty is incident to homage. An office of skill and diligence, or annuity, pro concilio impendendo, cannot be forfeited 12. El. 379. by attainder of Treason. A Court baron is incident to a manor, and Court of Pipowders to a Fair: therefore 19 H. 8. Br. incidents 34. one cannot grant the manor or fair, reserving those courts. Where one holdeth of a man to keep his Castle the Lord cannot 31. E. 3. ass. 441. grant his Castle guard, reserving the Castle. 13. Things by reason of another, are of the same plight. 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 custom by reason of the land, and therefore runneth always with the land. But otherwise it is of lands in ancient 6. E. 6. Dy. 72. b. demesne, partible among the males: for there the custom runneth not with the land simply, but by reason of the ancient demesne: and therefore because the nature of the land is changed by the fine or recovery from ancient demesne to land at the Common Law, the custom of parting it among the males is also gone. An erroneous recovery had of lands in F. N. B. 21. b. Boroughenglish, the puisne son shall have a Writ of Error, because the land itself goeth to him. So shall all the sons of lands in Gavelkind. Two Coparceners make partition, and 42. E. 3. 3. 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. Suit of Court cannot be done by another. 7. H. 4. 19 A man cannot excuse himself of a contempt 22 E. 4. 34. (as of not serving the King's Process) by attorney, but in proper person. 15 Cannot be granted over, as matters of pleasure, ease, trust, and authority. A licence to hunt in my park, to go to 12. H. 7. 25. Church over my ground, to come into my house, to eat and drink with me, cannot be granted over. So of a way granted for 7. H. 4. 36. life over my ground. The Patentee for life of an office of trust, 11. E. 4. 1. ●s 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 than he might grant it to one in whom the King hath no trust, or that would be negligent etc. The keepership of a Park, Stewardship, 12. El. 179. Bailywicke of Husbandry, etc. for life, cannot be granted over, because they are offices that require skill and diligence. A. licenceth B. to do an act: B. cannot Br. licences 25. ●●●nt this licence to another. A Warrant of Attorney made to one to 19 H 8. 10. deliver seisin, he cannot grant this his authority over. 16. Die with the person. When a Corporal hurt or damage is 12. H. 8. 12. done to a man, as to beat him etc. if he or the party beaten die, the Action is gone. Lessor Covenants to pay quitrents during 1. & 2. P. & M. 114. the term, & 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 diversely, according to the diversity of 17. Time. Lands given in Frank marriage, reserving 26. Ass. pl. 66. a rent, the reservation is voided till the fourth degree past, and afterwards good. Person viz. 18. The same person. One that hath a rend charge going out of 14. H. 8. 6. the wife's lands, releaseth it to the husband and his heirs: the husband yet shall not have it▪ but it shall inure to him by way of extinguishment only, as seized in right of his wife. 19 Several persons. A man makes a lease of a Manor, except 1. & 2. P. & M. 104. an acre, this acre is no part of the manor, as to the lessor, but as to him that hat● right to demand the manor by an eig● title, it remaineth parcel, and therefore h● shall make no foreprise in his Writ. If tenant in tail and his issue disseise th● discontinuee of tenant in tail; and tena● 11. E 42. in tail die, whereby the lands disend ● the issue: Now he shall be remitted, an● shall be in as tenant in tail against eue● stranger, and derraigne the first warranty; but not as against the discontinuee, because he was Particeps Criminis. Than from Relatives. 20. No man can do an act to himself. A man cannot present himself to a benefice, make himself an officer, nor sue 13. H. 8. 22. himself: and therefore when a man having right to land, hath the freehold cast Lit. 147. b. 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. Not more can a man summon himself. 8. H. 6. 29. And therefore if the sheriff suffer a common recovery, it is error, because he cannot 3. El. Dy. 188. summon himself. A man cannot be both judge and party in a suit. 4. M. B. come 25. And therefore if a justice of the Common place be made a justice of the King's 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 judgements: for if the Common place err, it shall be reform in the Kings Bench. Of Comparisons. From the equals. 21. Things are to be construed Secundum equalitatem rationis. Upon a recognizance acknowledged by (c) 27. Eliz. Coo 3. 136. S●● Willi Herbert's case. the Ancestor, or a judgement in an Action of Debt given against him: if he die seized of two acres, whereof one holden in Borough English, or having issue two Daughters which make partition, or if he die without issue, whereb part of his land descendeth to the heir of his father's 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 iure. If two, four, or more men being severally D 26. als pl. 37. seized of land, join in a recognizance, all their lands must equally be extended. And this is a Logical virtue, a kind of Bract. l. 1. cap. 3. equity as Bracton calleth it, where he saith, Equitas est rerum convenientia quae paribus in causis paria iura desiderat, & omnia bene coaequi parat: Et dicitur aequitas quasi aequalitas. Whose nature is to amplify, enlarge, and add to the letter of the Law. Especially this shineth & showeth forth itself in the exposition of Statutes, by extending things there provided to mischiefs in the like degrees, whereof the examples every where 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 (a) 23. H 8. Fitz. nothing, yet in time gaining greater regard to be imputed among inheritances, are demeaned as other inheritances at the Common Law. So as a possessio fratris shall 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 (b) C●●. 4. 2●▪ Custom createth inheritance in Copyhold lands, and maketh the lands discendable, 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 courtesy Dower, descent to toll an entry, etc. From the greater and the less. 22. The greater doth contain the less. By a pardon of murder, man slaughter 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 Copiholder of a manor, where the custom giveth liberty to demise in fee, may demise it for any less estate, without other prescription Where the custom is, that a man shall not device his lands for any higher estate 18 E. 38. than for term of life, yet if a devise be in fee, and the devisee claim but for life, the devise is good. By the statute 32. Henric. 8. that giveth 3 & 4 P. & M. Dy. 150. b. power to device two parts of one's lands, a devise of the whole had been good for two 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. A man hath liberties by prescription, & 21 H. 7. 5. after taketh a grant of those liberties by Letters Patents from the King, this determineth the prescription, for a matter in writing determineth a matter in fait. If an offence, which is murder at the 33. H. 8. Dy. 50. Common-law 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. An adulterer takes away another ma●● 11. H. 4. 31. wife, and puts her in new clotheses, the husband may take the wife with her clotheses. A box insealed with charters, it shall 10. El. 323. b. go to the heir with the Charters, & not to the Executors. A base Mine where there is Over, shall be the Kings for the worthiness of the Ore. The body of a man is more worthy than 3. El. 238. land, 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 freeman to be a villeine. So the King's land which he hath in his natural capacity, shall be demeaned according to the privilege and prerogatives of his body royal. And therefore 25. Things accestarie are of the nature of the principal. A servant procureth another to kill his 40 Ass. pl. 25. master: This is no petty Treason, in the servant, because it is but felony in the other which is the principal. 7. H. 6. 19 b. A Parson grants an annuity with a Nomine poene, the successor shall be charged with the Nomine poene due in his predecessors life, and not his executors. The profits of the office of a Filizer, &c. 26, H. 8. Dy. 7. b. cannot be put in execution upon a recognizance, Statute, etc. because the office itself, being an office of trust, cannot. tithe is not payable of Okes usually topped 26 El Moline. and lopped (though it be every seven or eight years) for the branches are of the nature of the principal (that is to say) the Oak itself) for which no Tithe is to be paid. 26. A man's own words are void, when the law speaketh as much. Lands given to two, & uni eorum diutius viventi, they make partition, and one dyeth; 30. ass. pl. 8. yet the lessor shall have again the moiety of him that dieth, for uni eorum diutius viventi are but idle words, because (without them) the jointenant, by course of Law is to have all, if he do survive. From the rule of method. In things of for malitie 27. The generals must go before, and the specials follow after. In a Writ the (c) The rule of the Register. general shall be put in demand, and in plaint before the special: as landlord before pray, pasture, wood, iuncarie, marish, etc. wood before Alders, will owes, etc. 28. The more worthy is to be set before the less worthy. The entire thing shall be demanded before Ibid. the moiety part or parts. The thing of greater dignity before that Ibid. which is of less: as a mess before land, a ●astle before a message or manor. In a replevin if it be of two Cattles, one ibid. quick and the other dead, the living thing shall be first demanded. Where one hath the 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 heir's males that one shall engender, brotherly love, etc. are good considerations to raise a use: but long acquaintance and familiarity are not. The son may maintain his father, & one brother another. Brothers or cousins shall not wage battle in a writ of right. A Statute that maketh it felony to receive or give meat and drink to one that committeth such & such an offence knowing it, stretcheth not to a woman that receiveth or giveth meat & drink to her husband in such a case. 30 The Law judgeth and esteemeth of all ●●cording to their nature: both persons & their ages, things, actions, and the time of the doing them. In persons, It looketh to the excellency of some, & giveth them singular privileges and preeminences above the rest. As to the King, the Queen his wife, noblemans, and Peers of the Realm. Also unto them of the Church. It tendereth the weakness and debilities of others; As of Men out of the Realm, or in prison, Feme Covert (and therefore favoureth them for their dowers) infants, men unlettered. Idiots out of their eight mind, or without all understanding, as those that are borne dumb deaf, and blind, or having other imperfections. If a disseisor die seized, 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 disseisie. Upon a lease made to a husband & wife, she shall not be charged after the Huslands death, for waste done by him in his life time. A woman shall be endowed of the best possession of her husband: as if the husband held of I. S. by iij. d. who held out of another by xx. d. and I S. release to the husband (so as now the husband holds by xx d) the wife being endowed of this land, shall hold only by the third part of iij. d. and not of xx. d. An Infant, Idiot, and a man of non sane memory, may enter, or have an action to avoid their feoffements. If a dumb person bring an action, he shall pled by procheine amy. 31. Strangers not parties nor privies. Lessee for years grants a rend charge, & 1, El. 198. surrenders, yet the rent shall be paid during the years. So if he in the reversion grant a Rend 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, & that it is determined. And therefore Things done in another's right. A person outlawed or excommunicated may have an action as executor of another man. And a villeine in such case against his Lord: for they recover not their own but to another's use. 32. It disfavoureth other some. Aliens neither borne within the Real● nor free denisens', that they shall not participate of the privileges of nature borne subjects. Especially aliens that are enemies. Alien enemies shall not have so much: a personal Action, which other Alie● may. An obligation made to an alien ene● shall go unto the King. Any body may seize the goods of an a●en enemy, to his own use. Touching their ages. 33 It holdeth xxj their full age to make good any ● they do. xiv their age of discretion. And therefore That a competent age to bind a man ● 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 judgement to recover in an action of waist, where the waist 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 waist 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 villeine enfranchised for an hour, is for ever. So enfranchised upon condition, the condition is void, and the enfranchisement 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 pled not guilty: & that is in favorem vita. 35. A matter in the right more than a matter in possession. In avowrie or annuity, aid shall not b● of a person, if the plaintiff be seized by t● 3 E. 3. 88 hands of the same person, because it is ● the persons own wrong to deny it. Otherwise in a Cessavit, for that is in t● right for the land. In an action of Trespass against tena● for life, who pleads villainage in the plaintiff, 14. H. 7. 5. K●ble. and the piaintife is found frank at no villeine, yet he in the reversion is not stopped by this verdict: for the thing it sel● whereupon the reversion dependeth is ● in demand, and the plaintiff shall recou● only damages: neither can he in the aversion have a writ of error or attaint v●on it. Otherwise it is in a Nativo habendo: ● there the right of villainage cometh ● question, and he in the reversion may ha● an error or attaint. Yet it favoureth 36. Possession where the right is equally A man purchaseth at one time seue● lands holden of several Lords by Knight service, and dieth: the Lord that first ● hap the Wardship of his heir, sh● have it. Husband and wife purchase socage la● 3. El. 296. unto them and the heirs of their body, a● having issue within fourteen years of a● ●●w if the Grandmother of the part of the mother of the issue do first seize the body, she shall have the Wardship, and not the Grandfather of the part of the father of the issue. 37. Matters of profit, or interest largely: of pleasure, ease, trust, authority, or limitation strict. A licence to hunt in my Park, or walk 13. H. 7. 13. in my Orchard, extends but to himself, not to his servants, or other in his company, for it is but a thing of pleasure, otherwise it is of a licence to hunt, kill, and carry away the Deer, for that is a matter of profit. Way granted to Church over my land, 1● H. 7. 25. b. extends not to any other but himself, for it is but an easement. A reversion granted to two jointly, and 11 H. 7. 12 b. the Tenant atturnes to one, it is a voided atturnment. If the Sheriff behead one that should 35. H 6. 58. b. be hanged, it is felony. The King licenceth one to alien the 4 E. 6. 68 b. third part of his land, and he alieneth all, it is a voided alienation for all. A lease is made to A. and B. for their lives, A. dieth, 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. A licence to come to my house to speak● with me: (a) 1. E. 5. 2. Goods bailed over, to deliver 9 E. 4. 4. b. to I. S. or (b) 28. H. 8. Dy. 22. to bestow in alms. (c) Park. d. A lette● of Attorney to deliver seisin: all these may be countermanded before they b● done. But if I present I S. to a Church, I cannot ●4. E. 4. ●. after vary and present a new, for a kin● of interest passeth out of me. So if I deliver an Obligation as a scroll into a Stranger's hand, to be delivered t● Park. 19 ●. the obligee, upon condition performed, f● the Obligee is as it were party or privy ● the delivery. 39 Matters of substance more than ma●ter of circumstance. Pleas in bar, and replications (though 21. H. 7. 24. ●. the plaintiff be afterwards non suit) make an estopple, for they are express allegations & material. As in debt upon an obligation if the Defendant pled in bar an acquittance made at D. or if the defendant pled an acquittance, and the plaintiff reply, that it was made by dures of imprisonment at D. now in another action, neither the defendant shall pled that the acquittance, nor the plaintiff that the dures was, at an other place: But a matter in the wri● 〈…〉 count, makes no estopple, for they are 〈…〉 t supposels: As in a formidone and claim by descent 〈…〉 m I S. or a mortdancester, as son and 〈…〉 e to I. S.; yet in another formidone he 〈…〉 y claim from I. D. and shall not be estopped. Not more shall recitals make any estoppel, for they are not material. As where 33. H. 6. 10. b. A. reciting that he is seized in fee of the manor of D. granteth a rent out of it to B. this shall not estoppe A to say that he had nothing in the manor. 39 Things executed and done, more than ●●●ngs executory, and to do. ● feme disseisers taketh a husband, the disse●sy releaseth to the husband, afterward 32. H. 8 Br. Darretnement 18. 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 feoffement; 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. Lands given to a married man and another 15. H. 7. 10. man's wife, and 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 entermarie. A mesualtie is given in tail, reserving a rent, this is good: for the tenancy may escheat 1. H. 4. 1. to the donee, & then the donor shall distrain for all his arrearages. A man han hath issue a daughter, and leaveth his wife priviment inseint: the wife 41. E. 3. 11. b. may detain the charters of her husband's lands from the daughter, for the possibility that it may be a son that she goeth withal. 42. A mutual recompense. An assumption or promise doth then only bind, when it is made upon good consideration of another thing. Cesti 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 recompense 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 quo. In Actions. 43. It yields favour, when for the doing of it there is Necessity. Funeral expenses shall first of all be Br. executor 172. discharged by executors. 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 4. E. 6, 19 of the saving of his life: & a champion in a writ of right for the necessity of trial, may kill another. Whether refer 44. Conformity, which is a kind of necessity. Rend must be demanded, though no man be upon the land to pay it. Br. for. Mar. 12. Where an infant in ward marrieth himself, yet to have the forfeiture of the marriage, the Lord must tender him one. 40. E. 3. 30. b. He that pleadeth in the avoidance of a fine, That the parties to the fine had nothing; must show who had. But it is not traversable, but only showed for Conformity. 45. Of Colour. If the heir endow the ancestors wife, 41. E. 3. 28. though she were not dowable, yet she shall hold in dower. Where a Court hath no colour to hold plea (as a Court Baron of land not holden 22. Ass. pl. 64. of the manor) all is voided. But where there is colour (as if a Court Baron hold plea of land within the Manor) though it be by plaint, where it should be by Writ original; yet the judgement rendered, 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 seized in the right of his wife. 46. It prizeth Acts in law higher than those that are done by the party. Upon the grant of a rent, the Tenant cannot attorne nor put the grantee in possession by an Ox or such like, because it is 49. E. 3. 15. another thing: but upon the recovery of rent, the Sheriff may. Parceners' may compel partition, so cannot joyne-tenants, nor tenants in Littlet. common. For equality of partition among Coparceners, a rent granted shall be a fee simple, 2. & 3. P. & M. 134. ●. 29. Ass. pl. 23. without words (heirs) and issuing out of the lands, without so expressing it in the grant. Also things that otherwise cannot, may a. 2. H. 7. 5. pass without deed, as a rent, reversion, (b) 21. E. 3. 7. signiory, way avowson, composition, to (c) 11. H. 4. 3. present by turn. (d) 28. H. s Dyer 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 join-tenants, nor Tenants in common. 47. It reputeth that men will always deal for their own best advantage. And therefore 46. 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, shall not toll the entry of the disseisee. Lit. 97. Usurpation in time of war gaineth no 7. E. 3 darrein presentment 2. possession; but the other may have an assize of darreine presentment (that notwithstanding) if his ancestor presented last before. Fitz. N. B. 31. ● 49. Things done in the day, more than in the night. Rend payable at a day, the party hath all the day till night to pay it: but if it be a 1. Mar. 172. b. 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 rend behind. Where things are fit to be straitened 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 king's 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 villeine for ever, if a villeine fly into ancient demesne, & there continued a year and a day, without claim of the Lord. Recovery in a Writ of right, and fine● executed, bind all persons though they have right, that lay not to their claim within ● 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 Common: weal. A man may justify the doing of a wrong 29. H. 8. Dy. 36. b. in things that sound for the Commonweal. As in time of war, to make Bulwarks in another man's soil without licence. To raze one's house on fire, in safeguard of the neighbour's houses. A Sheriff may break open the doors of one's house to take a fellow. 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 justify their coming 8. E. 4. 18. b. upon the land adjoining to the sea, to dry their nets: for fishing is for the Commonwealth, and sustenance of all the Realm. A millstone that is lifted up to be picked and beaten, cannot be distrained, for it 14. H. 8. 25. remains parcel of the mill, which is a thing for the Commonwealth. Things brought into an Inn or Fair, or 22. E. 4. 49. Market; or cloth lying in a Tailor's shop, or a horse that is a shooing, shall not be distreined. Public quiet. And therefore 54. Common error goeth for a Law. An acquittance made by a Mayor in his ●. R. 3. 7. own name only (where the town is incorporate by the name of Mayor, Sheriff, & Burgesses) shall be allowed for good, if there be an hundred precedents and more of like acquittances. And that is for common quietness. Whether a common recovery be a bar Manxels case f. 2. unto an estate tail or not, is not to be disputed, because a great part of the inheritance of the Realm doth depend upon it. Of this kind are those Deconomickes. The husband and the wife are one person. And therefore The wife is of the same condition with her husband. Frank if he be free, Denisen if he be an Fitz. N. B 78. ●. Abridgement of assizes ꝑ Br. denisen 2. English man, though she were a neif before or an alien borne. 55. They cannot sue one another, or make any grant one unto the other, or such like. If the (a) 21. H. 7. 29. b. 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-mariage was suspended. And therefore being a personal action, and suspended against one, it is discharged against both. So, if a feme sole bail goods to one, and marry with the bail. Likewise the husband cannot infeoff Park. 40. his wife, but upon a feoffement made unto her by a stranger, he may deliver seisin unto her by Letter of attorney; for thereby himself giveth nothing. 56. Upon a joint purchase during the coverture, either of them taketh the whole. If the husband alien land etc. so given, 39 H. 6. 45. 21. R. 2. iudg. 63. 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 feoffement be made to the husband Littlet. 65. and wife, and a third person; the third person taketh one moiety, and the husband and wife the other moiety. The husband is the woman's head: And therefore 58. All she hath is her husbands. The personal things she hath are merely his; but real things, whether land, rents, etc. or chattels real, and things in action he hath only in her right: yet so, as of real chattels & things in action, he may dispose at his pleasure, and shall have the real chattels if he over-live. Of things in action, herself may dispose by william. If Tenant in tail enfeoff a woman and Littlet. 148. die, and his issue within age take her to wife, he shall be remitted, and the woman now hath nothing: for he cannot sue any formedon in this case, unless he will sue against himself, because by the enter-mariage himself is seized in her right. If one that hath a lease for years, grant ●4. Eliz. Ploy. 418. his term to a feme Covert, and another, or if a feme sole and another be joint-tenants for years, and she take a husband, yet the estate of the feme and jointure doth continued, so as the suruivor of the wife; or of the other shall have the whole: and if a stranger oust them, her husband and she must join in an ejection firm, and the feme shall have judgement as well as the husband: And (a) 1. Eliz. Ploy. 191. in pleading he may say, That they are possessed in her right. Neither can the husband, where the wife hath a term for years, either devise it to another 14. Eliz. Ploy. 419. by his will (for she hath an estate in it before and at the time of his death, which preventeth the devisee) or grant a rend 14. Eliz. Ploy. Ibid. charge out of it, 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 devesteth the property out of her, and vesteth it in her husband only. And if goods be given to a feme Covert, and another, the jointer is strait way severed, and the husband and the other are Tenants in common; and the excutors ●1. H. 7. 29. of the husband shall have all the goods that were his wives. But in an action of debt upon arrearages 16. E. 4 8. of an account (where one was receiver to the feme whilst she was sole) they both must join, and that although the auditors were assigned during the coverture for the very cause of action, that is, the receipt (whereunto the assignment of auditors is but a thing pursuant) was in her right; yet the husbands release of an obligation 7. H. 6. 1. made to the feme, or where goods were taken from her whilst she was sole, shall be good against the wife if he die. But if he die without making such a release, the wife shall have an action upon the obligation, and not the executors of the husband: Likewise the wife surviving, or her executors 39 H. 6. 27. if she die, shall have those things in action, and not the husband; or she may make her husband her executor, and then he shall recover them to her use. But a ●. Eliz. Ploy. 191 lease for years, which the wife, shall be the husbands, if she die before him: for that is a thing in possession and not in action. 59 Her will is become his will, and subject unto it. Upon a feoffement to a feme Covert, she taketh nothing unless her husband will agreed; and where one is bound to enfeoff the husband and wife, the husband's refusal is the refusal of them both; but where the husband and wife are joint purchasers, the husband may make a feoffement and livery upon the land, which shall work a discontinuance, though the wife be in presence upon the land and will not agreed. If they bargain and cell the wife's land by Indenture, and the vendee grant unto them for the same a yearly rent, her acceptance of this rent, after her husband's death, doth not bar her of the land, although the acceptance be an agreement to the bargain, but the bargain being but a contract, is the bargain of the husband only, and not of the wife: if she make a release, obligation, or such like, it is merely void. If both her husband and she bail goods to one, they shall not join in an action of detinue, for it is only his bailement, and voided as unto her. In an account upon a receipt, by the hand 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 mainprize 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, or other tenements, Littlet. 158. and one lay claim by one title, the other by an other 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. A man that is outlawed may bring an 4. H. 7. 40. action to reverse it, and outlawry there is no plea. The Tenant shall have a replevin against F. N. B. 69. h. the Lord that did wrongfully distrain, though the Beasts be come back to himself, because he can have no action of trespass against him. A man (after that judgement is passed against 11. H. 7. 10. him) shall pled against the King a Charter of pardon, or any such thing done mean betwixt the verdict and the judgement, because against the King he can have no Audita querela. Otherwise it is, against a common person. Hateth wrong. So that 62. No man shall take a benefit of his own wrong. A man is bound to appear before the 31. H. 6. bar. 60. justices at a certain day, at which day he is in prison at the party's suit, so as he cannot come, the bond is saved. Otherwise it is if he were in prison for felony, or any other misdemeanour, for that is his own fault. An Infant's appeal shall not stay till his 27. H. 8. 11. & Br. covert 2. full age, for the defendant shall not have advantage of his own wrong. One in execution escapes, and the Gailor 13. H. 7. 1. gets 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 itself preiudiceth no man. If a feoffement be made to two jointly, one of them cannot deraigne the warranty 48. E. 3. 17. without the other. Yet if a Villeine and another purchase jointly, and the Lord of the Villeine enter into a moiety, he may deraigne the warranty alone, for his moiety: for there the severance groweth by act in law. He that misdemeaneth authority, that 12. E. 48. 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 misdemeane an authority that another giveth him. As if I lend my horse to one to ride to York, & 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 Chancellor's servant impleaded at the common law, claimeth privilege 35. H. 6. 3. of the Chancery: and before it be discussed whether he shall have it or not, the Lord Chancellor dieth; yet his privilege is allowable still, for the act of the Court to advice of it, shall not prejudice him. Of rend a man shall have an ejectment 33. H. 8. Br. 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 of land. And therefore 64. Driveth not a man to show that which by intendment he knoweth not. A man may pled that he was chosen 2. Mar. 128. Knight for the Shire by the greatest number, without showing the number: for the election may be by voices, or hands, or in other sort; hard to discern the certain number, and yet easy 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 eius licitis, shall pled that he did serve him lawfully, without showing what service or in what commandment: for no servant can remember all. 4 E. 6. 46. A man may aver a thing to be done by covin, without showing how the covin was: 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 Dower, cause I S. to disseise the tenant of the 18. H. 8. 5. l●●d, 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. Uncertain, whereby truth is inveigled. A man grants all his trees and wood upon 1. Mar. Dy. 91. Bacre, that may reasonably be spared; this is a voided grant, unless it be referred to ●●hird persons judgement, what may be ●●●red. If two several Writs of oneself same Manxels case fol. 10. b. thing against oneself same man, be returned at oneself same time: both shall abate. 67. Variance. If the Writ from the Obligation, 11. E. 4. 2. ●●other specialty in name, surname, or such like, in an action of debt or annuity brought upon it; or the Court from the Writ. As in an action of debt of xx. l. 8. E. 4. 2. b. ●●d declare but a debt of x. l. both shall ●●●te. An (a) 4. ass. pl. 2. essoign or (b) 32. H. 6. 3. protection varying from the original Writ in the quantity of the tenancy, or the name of the party, (c) 7. H. 6. 22. shall be quashed: and the Chancellor's servant bringing a Writ of privilege varying from the original Writ (as if the original be a Writ of Trespass, and the privilege in placito debiti, or the original an Action of Debt of 44. l. and the Writ of privilege in placito debiti of 42. l.) it shall be disallowed. Departure also when one fortifyeth not the matter of his plea that went before, but comes in with a new matter, is a kind of variance, & maketh the plea naught. As if the rejoinder 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 enfeoffed him: Now if the defendant rejoin, that the feoffement 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 rejoinder, that is to say, the entry for the condition broken, whereby the feofme● is avoided. So if in an assize the defenda● pleadeth the feoffment of I. S. & the plaintiff make title to himself by descent, an● that he was disseised by I S. who enfeoffed the defendant: or that he enfeoffed I. S. upon condition, who broke the condition, & afterwards enfeoffed the defendant etc. Now if the defendant say, that after the disseisin (or condition broken) and after the feoffement 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 feoffement pleaded in bar. But if he pled such a release or confirmation from the plaintiff to I. S. that is no departure; for it is a matter before the feoffement, or in an action of Trespass for goods, if the defendant in 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 puisne matter underneath the title of his bar, but eigne, and above the matter of ●is bar, therefore it is no departure. So a plea in a bar which is intendible at the Common Law cannot be maintained by a ●atter of custom or by Statute law. As in 〈◊〉 assize the Tenant pleadeth in bar a devise unto himself of the land, being deui●●ble by the custom: the plaintiff saith, ●hat the Deuisor was within age at the ●●me of the deuisee. 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 pled in bar a lease for fifty years from a house of Religion, & the plaintiff avoid it, by reason it was made within a year before the dissolution, and so voided by the Statute 31 H. 8. Now if the defendant will allege, That by the same Statute it is provided, that all such Lease● shall be good for xxj. years, and so maintain the Lease to be good for so many years, this is a departure. Or if one pled 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 that levied the Fine, was Cesti qui use. 68 Contrariety. An Obligation is made Soluendum nu●quam. 21. E. 4 36. This Soluendum is voided, and the thing presently due. A. is bound to B. Soluendum eidem A● 4. E. 4. 29. This is a good Obligation, and the Solundum voided: for the plaintiff may declare upon a Soluendum to himself. In a Trespass de domo fracta & inuris ei●dem ●1. H. 7. 21. b. domus fractis. The defendant canno● plead not guilty to the breaking of th● house, & justify the breaking of the wal● for the house and walls are all one, and he cannot of the same thing both justify and pled not guilty: for by the justification, he ●cknowledgeth himself guilty. So one is contrary to another. A feoffment in fee is made of two acres, unto two men habendum one acre to one 2. & 3. P. & M. 153. man, and the other acre to the other man. This is a voided habendum: for the premises give him an interest through both acres, & the habendum excludeth him from having any thing to do in one. A lease of a manor excepting the services, the exception is voided: for it is parcel of the thing let. And therefore 69. It will not drive a man to justify that he goeth about to defeat. He that bringeth an assize of the mastership 10. H. 7. 9 of a Chapel against I S. shall not need to name I. S. the master of the Chapel, because the plaintiff is to disprove his interest. Diligence And therefore 70. It hateth Folly, and Negligence. After a recovery in a writ of right, if a ●●●anger that hath right, lay not to his 5. E. 3. 222. Her●●. claim within a year and a day, he is barred for ever. For vigilantibus & non dormientib▪ iura subveniunt. A descent cast during the coverture (where the wife is disseised) barreth her not of her Litt. 95. entry after the husband's 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 men's Causes. And therefore 71. It hateth Delays. He that pleadeth a Record in delay, (a● to prove the plaintif excommunicate) must 3. H. 6. 15. b. have it ready to show. Otherwise it is, if he pled it in bar. In dilatory pleas both defendants must join. 12. H. 7. 3. A plea in bar that is dilatory, must be good to every common intent. 8. H. 7. 9 72. Unnecessary circumstances. One that is in Court ready to join wit● the defendant, may do it without Process▪ 2. H. 6. 1. b. As the vouchees 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. Bu● joinder in aid cannot be by Attorney without Process. One that is a debtor to the King of Re●ord 1. H. 6. 4. b. in the Exchequer, 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 Manxels case. fol. 7. b. heir with warranty, and dieth. Now the son in a praecipe brought against him, may vouch the feoffor of his father: for the Law will not suffer to vouch himself, & when he cometh in as vouchee, then to deraign the first Warranty for the Circuit of voucher. 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 waist 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 waist; the lessee may pled this in an action of waist. 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, Litt. 110▪ without expressing whose life's, 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 let for years, with the lands appertaining; yet the Copyholds pass not without special naming: for than it were a forfeiture of them. A Corodie granted to one and his servant to sit at his Mess, he cannot bring a servant that hath some filthy or noisome disease. Estovers granted one of a Manor, 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 beasts, not Commonable. A feoffment of all his lands in the town of D with Common in omnibus terris suis, this Common shall be intended in D. only, and not elsewhere. 75 Moderateth the strictness of the Law itself. By Abridging, diminishing, and taking away the severity of it, and mollifying the hardness thereof. A moral virtue 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. Not more is it to carry away a man's 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 primative 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 fare as concerneth the interpretations of Statutes. But they have a further & more shining use in the exposition of Common Law itself, 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 waist were done, If the disseisee come, it shallbe taken that he meant to be remitted In an action of Trespass, two issues are 11 H. 7. 5. joined triable in two counties, one in London, an other in Middlesexe 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, & not in both counties; which is against law. And therefore it is a discontinuance of the issue in London, & not a miscontinuance. CHAP. 4. Of Law Constructions that are natural. THUS fare of Rules drawn from other sciences. There follow those that are proper to ourselves: 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 feoffement by deed of a Manor, with avowson appendent, and no livery made, the avowson passeth not: yet they may pass without livery, but the meaning was, the manor and it should pass together. A bargain and sale of land, and a reversion by deed not enrolled, 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, that where by ●1. H 7. 5. prescription he hath used to find a Chaplein, because some controversy hath grown of it, granteth 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, cannot be 1 H. 6 4. 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 merely voided, & took no effect at all. So that 79. He that cannot have the effect of a thing, shall not have the thing itself. The King shall not be received upon default 4 E●●z 241. of Tenant for life, because the demand cannot have the effect of the receipt. viz. to count against him: which none can do against the King, but sue to him by petition. Two Abbots cannot be joint-tenants: Litt. for they cannot have the effect of it, which is suruivorship. 80. To the most validity. Tenant in tail makes a lease for life, this shall be intended the Lessees life. Litt. 140. b. An annuity granted pro consilio impendendo, or a feoffement ad erudiendum filium, or ad soluendum x. s. is a condition, without words conditional, because else the party hath no remedy. And therefore 81. When many join in an act, it maketh it his act that may do it. A use limited to begin when one's eldest 2. & 3. El. Dy. 191. son is married by I S. the son (being in ward to the King) is married by the king and I. S. yet no use riseth, for it is the sole marriage of the King. A patron of a Church suffereth an usurpation by six months, and then grants an annuity to I. S. till he do promote him to a benefice After, he & the usurper join in a presentment of I. S. yet the annuity is not determined. The disseisee and the heir of the disseisor, Litt●let. in by descent make a feoffment by one deed, and Livery; this is the feoffement of the heir only, and confirmation of the disseisee. 82. When two titles concur, the best is preferrred. One is disseised, and the disseisor lets the Littl. 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, that a 9 E. 4. ●. Bell shall be brought by the Obligee, to the Obligors house (being a Brazier) and there weighed and put in fire: and then the Obligor to make a Tenor of it, tuneable with other bells. The Obligor must weigh it, & put it in fire (not being expressed who shall do it) for it belongs to his office, & therefore he hath most skill to 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 King's collectors, 4. E. 6. 15. that his merchandise shall be weighed at the King's beam, and the King shall have his subsidy as it riseth: the Collector must weigh it. Issues joined must be tried by them that have most skill. (videlicet.) An issue upon 4. El. 230▪ b. the law, by the justice's learned in the law. Attendance upon the King (Scotland) in L●●tl●● 21. war xl. days (as tenant by escuage must) by certificate of the king's Marshal. Disseisin of an office in the Common-place, 11. E. 4 3. 6. or rasing of a Record there, by the Filizers and Attorneys, attendant in that Court. 84. Voided things good to some purpose. Lessee for twenty years takes a Lease 1. & 2. P. & M. 107. for x. years (to begin presently) upon condition if such a thing be not done, to be voided, though the second lease be voided upon the condition broken, yet the surrender remaineth good. A feoffement upon condition to be voided, 10. H. 7. 22. as if it had never been, yet the feoffee shall have an action of trespass (after the feoffors' entry for the condition broken) for a trespass done by the Feoffor before. 85. One thing to enure as another. The King grants to a Town easdem libertates 21. H. 7. 13. 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. One grants the third presentment to an 15. H. 7. 7. advowson, and dieth: his heir shall present twice, and his wife 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 King's 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, etc. now the Law giveth him a way to come to it. Where the King is to have mines, the 10. E. 317. Law giveth him power to dig in the Land. Upon a grant of Trees, the Grantee may 2. R. 2. bar. 337. come upon the Land to cut them down, & with his Carriage to carry them through the land. And the vendee of all one's fishes in his pond, may justify 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 devices. 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 2. & 3. P. & M. 140. b. & 161. b. of twenty shillings, the grantee shall have forty shillings. But if they reserve twenty shillings upon a lease, they shall have only one twenty shillings. One bond to pay I. S. twenty pound, 2. M. 104. cetra festum natalis domini, it is no plea to say he hath paid it, but he must show when, else it shall be taken he paid it after the feast. And therefore 88 A man shall not qualify his own act. The obligee releaseth his debt till Michaelmas, 21 H. 7. 23. b. the debt is gone for ever. A reversion of three acres of land is 18. E. 3. Var. 53. granted, the tenant atturnes for one, it is a good atturnment for all. A parson makes a lease for xl. years, the 17. El. Dy. 339. 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. Lessee for years is excused for waist, if the houses be blown down by sudden 40. E. 3 5. storm or tempest. But in that case if he covenant to keep reparations, an action of Covenant lieth against him. Two joint-tenants exchange an acre of land with another, they should hold the Park 55. f. & ●6▪ g. land taken in exchange jointly. But if they exchange to have that acre in common between them, they shall be Tenants in common. ●●. Special words. A lease reserving a rent, the heir of the 27. H. 8. 19 ●●ssor, after his death, shall have the rent: otherwise, if the lease be reserving to the lessor. A feoffement in fee to one and his heirs 30. H. 8. Dy. 42. b. with warranty to the feoffee. This warranty goeth not to the heir. 91. Surplusage of words. The Ordinary may refuse him generally, 9 E. 4. 28. b. Lit. that demands his clergy without showing cause. But if he show cause which our law alloweth not (as because he hath not his ●●●sure or ornamentum Clericale etc.) he shall pay a fine, and yet be driven to take the Felon. In a valour maritagij, & count of a tender 9 El. Dy. 255. ●. of marriage to the def. The tender is traversable, if it were not before. An information upon a statute made 6. E. 6. 84. such a day, & the day mistaken, is naught, though he needed not to have recited the day. In an action of Debt by I. S. Parson of ●●. no such town as D. is a good plea: yet ●e needed not to have named himself parson of D. A writ of forging diversa facta & muni●enta and count but of one, the Writ shall ●●ate: yet he needed not to have said in his Writ, but only factum. CHAP. 5. Of Fictions in Law. A feigned construction, which we ca●● 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 there of ti●● and place. Of the Person. 92. Things done by another, are as if they were done by ones self. A promise to ones wife in consideration of a thing to be performed by the husband: 27. H. 8 24. if the husband upon his coming home, agreed and perform the consideration; he may pled this promise to be made to himself. If my servant sell my goods, and I agreed, I shall have an Action of Debt, supposing he bought of me. A lease for years is made, and a letter o● attorney to deliver possession to the lessee: 25. El. Earl of Leic. c. 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 18. H. 3. r●c. va. 26. which the heir took in exchange for lands descended. A manor is given by fine, a Scire facias 48. E. 3. 11. lieth of a tenancy that afterwards escheated. If a manor descend to an heir within 6. H. 4 1. age, and after a tenancy escheateth, he shall have his age of it in a Praecipe of the manor; it shall be assets by descent, and he may vouch of this tenancy by reason of a warranty made of the manor; 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 that 14. H. 4. 9 the mulier puisne must make an entry upon him, or else he gaineth the right: yet a continual claim made by the mulier puisne destroyeth his right: for it amounteth to an intrie. A Lease for a thousand days, is a Lease 14. H. 8. 13. for years. A lease for years and a release amounteth Brook. to a feoffement. If a man licence 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. One grants a rend charge, without saying 18 El. Die, 362. pro se & heredibus, and dieth. The grantee brings a writ of Annuity against the heir, and hath judgement to recover: yet he may distrein afterwards: for the heir was never chargeable. So that upon the matter, it makes no election. A man makes a lease for years of a house, 20. El. Dy. 362. 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. A man seized in fee, let's for ten years, & 1. E 6. Br●●c. 18. after selleth the land, and taketh it back to him and his wife, & then the husband and wife let it for twenty 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. A matter pleaded or disclosed out of time and course, is as if it were not pleaded at 21. El. 563. all. As if one bring an action of debt upon an obligation, & count that the defendant was of full age at the time, the defendant shall not trauers 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 son's 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, & by the same deed granteth a rent out of these lands to another, and delivereth the deed to both at oneself same time. Yet it shall inure first as a grant of the rent to the onc, and then as a grant of the reversion to the other. 98. Happening in an instant. A mesualtie descends to the Tenant of the land, though the mesualtie be at the same 11. H. 7. 12. 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 knight's service. Land is given to A. for the life of B. the 7. H 4 6. remainder to the right heirs of B. A. dieth, the remainder takes effect before any occupant. A man exchangeth land for a rend charge out of the same land. This is good enough 9 E. 4 21. though they be in an instant (whereby the rent should be drowned in the land) for the law accounteth the exchange of the land to be first perfected. 99 Things relating to a time long before, be as if they were done immediately from that time. When the wife is endowed by the heir Lit 92. of her husband's lands, she shall be said to be in immediately from the husband. And therefore if the husband were a disseisor, & the heir in by descent, yet the disseisee may enter upon the wife. Goods taken out of the possession of an 36. H. 6. 7. executor who refuseth, and administration is committed to I S. I. S. may 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 & encounter one another, which is the greatest difficulty that we found 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, this shall be intended Lit. 110. b. for his own life (Rule 74.) for else it were a wrong But if tenant in tail make Lit. 140. b. such a lease for life, this is a discontinuance, and for life of the grantee (Rule 86.) for it for it is strongest against the grantor, and most beneficial for the grantee. Things executed where the husband is 32. H. 8. Br. der. 18. seized in the right of his wife, shall not be avoided by divorce: as waste committed, receipt of rent, wards, or presentments that have fallen gifts made of the wife's goods, etc. Rule 39 But otherwise it is in matters of inheritance, as if the husband discontue and charge the wife's lands, release or manumise villains etc. Rule 30. A feoffement 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 servant's 35. H. 6. 3. privilege discussed in bank, yet it shall be allowed, notwithstanding the cause of his privilege 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. The husband possessed of a term in the 9 El. Dy. 264. b. 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 judgements and arbitrements require long advice. So may goods be distreyned in the night 11. H. 7. 5. time for damage feasant. If one of the Chapter infeoff Deane & Bank. 41. Chapter, by that he himself shall take by his own livery, Rule 18. notwithstanding Rule 20. A man may do an act to himself, notwithstanding 13. H. ●. 15. Rule 20. where the law cannot do otherwise, Rule 18. as a fem tenant in socage may endow herself, an executor pay himself, etc. Counts and declarations must be certain, Rule 66. yet things which contain a necessary implication are good enough, Rule 94. As in an ejection firm, & 14. El Dy. 347. count of a lease made by tenant for life, it sufficeth to say, that the lessor is yet seized, without alleging his life expressly. In an information upon the Statute of usury, and count that the defendant took per viam, & medium corrupt mutationis, where it should be accomodationis, yet it is good enough. Corporal service as suit of Court etc. 7. H. 4. 9 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, and therefore guided by Rule 15. Yet an office of skill and diligence to one and his heirs, may be granted over. So upon 12. El. 379. b. 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 feoffement with 25. El. Earl of Leic. case. warranty, 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 (& 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. 6. Of Law's Positive. A 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 possitue laws of the world. Positive are laws framed by their light, & from thence come the grounds & maxims of all Common Law: for that which we call common law, is not a word new & strange, or barbarous, and proper to ourselves, and the law that 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 Country, is called Law. And anon he nameth it 〈…〉 the golden and 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 showeth the antiquity of the name, in effect all one with that which since and by a later name is called Ius Civil (quod quisque populus ipse sibi ius 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 〈…〉 opinio or 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 merchandise, and commonwealth affairs, & men to keep within doors. And of the Thracians, which accounted idleness an honest thing, and stealing very commendable. So if it were made a law, that men might commit adultery, forge false deeds, etc. 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 showed) 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, & all men must agreed, that laws in deed repugnant to the law of reason, are aswell voided, as those that cross the law of nature. Positive laws are sundry and diverse, according to the several and oivers constitutions of particular places and Countries. Such among the jews were their Politicals, delivered by Moses, which so fare as they be positive, bind us not unto them. Such were the ancient law of the Grecians, the xii tables, & 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 diverse 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. 1. 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. Lit. 38. That prescription is a usage time out of mind. For to pled that there is a custom among merchants throughout the Realm, to assign licences over, is not good, in as much as that which is currant throughout the Realm, is Common Law, not Custom. And under the name of the Realm of England, it is plain that (a) 8. R. 2. cont. claim. 13. Scotland and Wales (b) 2. Mar. 29. much less (c) 20. H 68 A fine with ꝓclamations 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 Admiral's jurisdiction (which hath nothing to do of things within the Realm) doth only meddle and not the Common Law. But between (d) 22. ass pl. 93. The statute 1. R. 2. cap. 5. proveth the Common Law to be so. the high water mark and the low water mark, where by ordinary and natural course the sea ebbs & flows: the common Law & the Admiralty have divisum (e) Sir Henry Constables Coo. 107. imperium, one upon the water when it is full Sea, the other upon the land when it is an ebb. Statutes 27. H. 8. cap. 26. Incorporateth Wales into England. The whole Realm is divided into several (a) 12 H. 7. 18. Fineux. Counties or shires, And those again into certain villes or Towns: in many (b) Litt. consuetudo ex rationabili causa usitata priuat Communem legem. of which as also in diverse manors whereof it cometh to speak afterwards. There be special vsuages time out of mind, altering the common law which we (c) Lit. 46. & 58. call Customs. (d) 8. H 3. prescip. 60. As in Kent, the custom of Gavelkind for all the heirs males to inherit alike, and the wife not to loose her dower, nor the heir his Land, though the husband or ancestor 5. E. 4. 30. be hanged for felony. In London, if the debtor be fugitive, that the creditor before the day of payment may arrest him to found better surety. In many Boroughes the youngest son to inherit Lit. 37. all. The wife to have for her dower all her husband's lands: the lands there to be divisible by william. 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 itself, so that upon a feoffement 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 feoffement of lands in diverse Counties, there must be livery of seisin in every County. Also an exchange of lands in one and Lit. 13. the same County is good by parroll: but in diverse 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, he 2. H. 4. 11. 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 joinder of Counties, the jury that tryeth the principal may take notice of a thing accessary, though it be in another Shire. As in an action of trespass, if the defendant pled 21. H. 6 51. an arbitrement in a foreign County, and issue be taken upon it, and found for the plaintiff: the jury there must access damages 9 E. 4. 40. for the trespass done in the other County. 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, etc. A Town is a precinct, anciently containing ten families, whereupon in some Countries they are called tithings, within 18. H. 6. 13. one of which Tythings every man must be dwelling, and find fuerties for his good behaviour, 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 body, 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 1. H. 7. 10. God. And therefore carrying God's 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 standeth 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, other 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, Cuius Centrum est ubique 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 judgement given for the King, no Scire facias shall go F. N. B. 21. b. forth ad audiendum errores, for the King is alwa●es present in court, & that is the cause that the 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. etc. and doth not say Dominus Rex per Henricum Hobart Attornatum 25. H. 8. Br. non-suite 68 3. El. 231. suum, etc. 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 (a) 35. H. 6. 26. negligence, or laches, no folly, no infamy, no stain, or corruption of blood. So as (b) 3. Eliz. 213. nonage avoideth not his grant, though it be of Lands which he hath in his natural capacity. By (c) 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 found there argued & debated) are first, Majesty, Soveraignitie, Power, Perpetuity, & then that noble compliment of justice, and truth. The law saith Bracton gives unto the King Dominationem & potestatem. Bract. lib. 1. cap. 8. He hath absolute power over all: for by a clause of non obstante he may dispense with 2. H. 7. grants 33. a Statute Law, and that (if he recite the statute) though the statute say, such dispensations shall be merely voided. The King cannot take, he cannot part from any thing but by matter of Record. Bract. ibid. And that is for the Majesty of his person. (a) Stam▪ prae 73. His supreme sovereignty makes him immediate (b) 7 E 4▪ 17. under God. Omnis quidem sub eo & (c) 50 Ass. pl. 1. 18. Eliz 498. ipse sub nullo nisi tantum sub Deo, saith Bract. It makes all lands to be holden of him, every surrender unto him to be good; no action to lie against him; for who shall command the king. Nay, acts of Parliament do not bind him, 4. E. 4. 21. 1 El. 223. & 240 3. Eliz. 239. unless they concern the Commonwealth, or he be specially named. Neither can the King be a jointenant 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 jointenants, but tenants in Common. Lastly for perpetuity, the King never dieth, but in 4. El. 234. law it is said the demise of the King, and a gist unto the King, without saying more, trencheth to his successors. To come to the other two, the power of 4. Mar. 177. Potentia iniuriae est impotencia naturae. God is always joined with justice & truth: for to do wrong, to deal untruly, is not omnipotency, but a thing of weakness & impotency So it is with the King, he cannot be a (a) 4. E. 4 25. disseisor, he can be no wrongdoer: for he is all justice, he shall never be (b) F. N. B. 143 b. estopped. judgement final in a Writ (c) 20. E 3. Dr. 15 F. N. B. 31. D. of right, doth not conclude him, for he is all truth, Veritas & justicia saith Bracton, Circa solium eius. 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 created Corporations, Deane and Chapter, Mayor and Commonalty, etc. 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 rend 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 manor, sue in what court he will: as to have a Quare impedit or Writ of Escheat, retornable in the King's Bench, or a Quare incumbravit there, though the record of the Recovery be in the common place. He may allege 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 waive 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 infinitely. He may challenge a juror without showing cause, or the array, because the Sheriff that made it, was cousin 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 reentry: hath the property of all goods that are in nullius bonis, shall have the Tithes of Forests and places out of any parish, take advantage of other men's places, as to have a Writ to the Bishop, if title appear 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 pled more pleas than once, pur darreine continuance, as outlawry in an action of debt, etc. And many prerogatives more he hath, which in their several places shall come more properly to be considered. But in them all it must be remembered, 12. H. 7 19 That the King's prerogative stretcheth not to the doing of any wrong: for it groweth wholly from the reason of of the Common Law, & is as it were a finger of that hand, although so much differing in fashion (as the head and the body can never be of one proportion) that if you set them in parallels together, you shall found it to be law almost in every case of the King, that is law in no case of a subject. And yet for all th●●, 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 diverse prerogatives above other women. As in an Act of Parliament making all 3. El. 231. gifts and grants unto her, or by her (whether between the king & her, or between her and 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 public person, in whom all the subjects of the Realm have interest, being the King's wife, as they have in the King himself. Likewise she may have in herself the possession of personal things during her life, so as she may (a) 49. ass. pl. 8. have an Action in her own name alone, take lands and other possessions from the king by Charter: (b) 3. H. 7. 14. make leases, feofments etc. which shall be good during her life, but afterward the king shall have them▪ And diverse 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 (a) 14 H. 4. 7. of dignity and of honour only, and (b) 21. E. 4 84. 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, else the writ shall abate. But the name of Baron is the 32 H 6. 29. 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, or Esquire if he be no Knight. And touching Bishops, who enjoy the name of Stamp. prer. 154. 7. H. 8 Cr. 184. Huns case by all the justices of England. 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 politic. The natural person is every man. A body politic is a body in fiction of 14. H. 8. 3. Fineux. Law, that endureth in perpetual succession 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, a body natural 4. El. 234. (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 politic, wherein he may purchase to him and his heirs Kings of England, or to him and his successors. So a Parson is a 4 E 3 17. Br. Deane, etc. 2. 14. H. ●. 30. Corporation by the Common Law, and hath two capacities, one to take to him and his heirs, & the other to him and his successors. And therein he is seized ●● iura Ecclesiae. And if I. S. be Parson of D. and land be given to I. S. Parson, and his successors, and ibid. to I. S. Clerk, and his heirs; he is a tenant in Common with himself. The parson in regard of his continual attendance upon that sacred function, is (a) F. N. B. 175. freed from all personal charges that may hinder him in his calling. For such a one shall not be chosen bailiff, Bedle, Reeve, or other such Officer; nor be compelled to come to the (b) Marl cap. 10. Sheriffs turn, to the (c) F N. B. 160. c. Leets of the King or other Lords, for land annexed to their Churches. And all this by (d) Marle cap 10. doth so recite it. the course of the Common Law. So is every other clerk within orders. To the Parson belongeth of Common F. N B. 175. Br. Dism ●6. right (as our books say) the tenth of all manner of yearly increase, which we call Dimes, or Tithes. And therefore by a lease 15. H. 7. 8. of Rectoria, the Lessee shall have the dimes and offerings of the same Church; for they are incident unto it. And if a Parson demise his glebe to a Lay man, he shall pay Tithes, because they are 32. H. 8. Br. ●●s. 17. of common right. Every Parson before he can be incumbent, must be presented to the Ordinary, who is to admit him. And therefore is allowed time to inquire of the clerks hability. 14 H. 7 21. 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 Bishop may collate by laps: for there be many things to dishable him from having the benefice. As if he be criminous, insufficient, a villeine, have not his letters of Order, etc. And if a mere Layman 12. & 13. El. Dier 292. be presented, admitted, and instituted, and no sentence of deprivation or nullity given, the Ordinary cannot collate by laps: 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, the party becometh an incumbent. 20. El. 528. Before which induction there is no possession or freehold in him, of glebe, or house, or dimes. So as a rent granted by a prebendary, after admission and institution, and before induction, with confirmation of the Ordinary before induction, and of Deane & Chapter, the day of induction is voided. The Incumbent hath not the mere right in him of Land in the right of his Church. But the fee simple is in abayance, Lit. 143. 6. E. 6. Dy. 69. that is to say, only in the remembrance, intendment, & 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, except such as are done by consent of patron Lit. 143. 12. H. 8. 7. and ordinary, which bind for ever. If the Church be void six months, 3. E. 4. 3. without presenting, which is called a laps, the Ordinary himself may collate, that is, a Clerk appoint of his own: & if tt be void Doct & Stud. per Br plen. 15. six months after his time, than the Metropolitan, and six months after his time, the King may present. All this is to be understood, If the Patron present not before them. But so long as the Church is voided, though it be two years after, the patron Doct & S● ibid. may present, & the Ordinary or Metropolitan are bound to admit him. Quere whether it be so where the King is entitled to present by laps. When one Church is not able to find 40. E. 3. 28. Fi●●. 50. E 3. 27. B●lnap. the Cure, 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, the 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, than they shall present by turn, and the King shall have the laps, as before he should. Otherwise it is upon an appropriatian, for that is an amortisement, and therefore all must join 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 King's books, nor distant one from another above a mile; saving 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 voided. Over and beside those Corporations that were at the Common law, there be diverse others which have grown of later time, by a special foundation and election, whereof some are aggregate of many persons, 14. H. 8. 3. Fineux that is to say, of a head and body: other consist in one singular person. These Corporations are all of them 14 H. 8. ibid. 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 (a) 9 Eliz. Dy. 255. Littlet. 36. 40. Ass pl. 27. & 41. Colleges, as master & fellows, etc. diverse Towns are so incorporate before time of memory, with power to hold plea, by Writ of ex gravi quaerela, or such like, and are called Boroughs, from whence (a) Littlet. 36. come the Burgesses to the Parliament: and this maketh the difference between the Borough and a Town. So that (b) 40. Ass pl. 41. upland Towns which are not ruled and governed as a Borough is, are but Towns, though they be enclosed in walls, as Ludlow, & such like. And every (c) Littlet. 38 Borough is a Town, but not e converso. (d) 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. The spiritual ones were for the most part made by the Pope, but had their power to purchase from the King. And these 4 H. 4. Cap. 2. 4 H. 4. Cap. 12. Coo. likewise are of two sorts, for either they are Regular or Secular. Regular, which have entered into Religion, (and thereupon called religious) professing to vow three things, Obedience, voluntary Poverty, and perpetual Chastity. Wherhfore these are dead persons Littlet. 66. in the account 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, etc. Secular, are such as have entered into Religion; as the Bishop and his Chapter, Moster of an Hospital, and his Brethrens, or confreres, guardian of a chapel, & the chaplins, etc. Also Archdeacon's, & such like. Touching the Bishop & his chapter (which make but one body) their possessions 40. E. 3. 23. Coo. 75. are divided: so as the Bishop hath part by himself, & the Chapter the residue. Which chapter consisteth of a Dean, as the chief, 17. E. 3. 40. Par●. & prebendaries, or such like, who are most properly termed the chapter: & of these also, their possessions for the most part are divided: the Dean having some part sole in the 21. E 4. right of his deanery: & the particular Prebendaries some other part in the right of their Prebends: the residue the Dean & 17. ass pl 29. 18. E 3. 36. F. N. B. 195. Chapter have together. And every of them is to such purpose incorporate by himself. And these spiritual corporations are 26. Ass. sometimes presentative, sometimes dative, (perpetual or removable) sometimes elective, & have a common seal, according as their corporation is. To them also personages may be appropriate, by the patron, Ordinary, & king, & vicar's, endowed to serve the cure. Whereupon a praecipe qd reddat lieth against the vicar only, without naming of the person, for he alone is Tenant of the freehold, and may have a iuris utrum, (or other action) against the person. All which is to be understood of an ancient endowment, 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 merely void, & 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, etc. CHAP. 2. Of Possessions. OF the Common Law there be two parts. One that concerneth Possessions. The other the punishment of offences. A possession is whatsoever may be enjoyed. Prerogative. The King shall have to his own use, & 31. E. 3. San. def. 37. therefore may let to farm rendering a rent, all the possessions of a fool (a) 18. E 3. Sciro fac. 10. natural, not of any other Idiot (b) Stam pre. 34. during his ideocie, but (c) 1. H. 7. 24. not that which he hath title unto by entry or action. And therefore upon an office (finding that the Idiots ancestors died seized of an estate tail) it is sufficient to traverse the dying seized, for that only entitleth the King. Statutes. Prerogative cap. 9 The King shall have the custody of their lands during their life. Prerogative cap. 10. And of Lunatics, during their Lunacy, to their own use. When one hath the possession of any thing 28. H. 8. Dy. 12. Fitz. to another's 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. 1 Cesti qui use may grant the land, or suffer a Recovery of it. 4 H. 7. cap. 17. The heir of Cesti qui use, (of land holden by Knight's service) shall be in ward, and pay relief. 19 H. 7. cap. 15. Execution upon judgement, statute, or recognizance, shall be good against Cesti qui use. The heir of Cesti qui use of land in Socage, shall pay relief, heriot, etc. 27. H 8. ca 10. Where any be seized 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 seized to the use or intent that another shall have a yearly rent out of the same lands, Cesti qui use of the rent shall be deemed in the possession thereof, of like estate as he had that use. 27. H. 8. cap. 16. Bargains and sales to raise an use of inheritance or freehold, must be by deed indented and enrolled 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 jointenants, or Tenants in Common. jointenants which possess by the same title. As if two, three, or more, be enfeoffed Lit. ca▪ of jointer. of certain lands, to hold to them and their heirs, or during their own or another's 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 Lit. ibid. whole in the same sort as he had his part, excepting only present interests of the thing itself 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 jointenant which made it, die before the day; bindeth the Suruivor: for the Lessee hath a present interest. Otherwise it is of a grant to have a lease, if the grantee pay x. l. before midsummer next, 5. El. Ploy. 203. Browne. and the jointenanr which made the grant, die before the day: for there is no interest at all, but a communication only, till the money be paid. Otherwise it is also of a rent charge granted out of the land whereof they Lit. ibid. are jointenants: for that is no interest in the land itself. Tenants in Common are they which possess by several titles. Lit. chap. of tenants in Common. As if two jointenants be, and one alieneth his part to another, the Alience, and the other jointenant, are Tenants in Common: for the Alienee cometh in by one of the jointenants' feoffement. So if three jointenants be, & one alien that which to him appertains in fee; the Alience is of this third part tenant in common, with the other two jointenants: but they remain still jointenants of the other two parts. So if land be given to two men or two women, and the heirs of their two bodies engendered: the Donees have a joint estate during their lives: but their issues are Tenants in Common of the inheritance. For euey 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 land be given to a Mayor & Commonalty, and their successors, & to I. S. for I. S taketh in his own right, and the other in the right of the corporation. And therefore 7. H. 7. 9 upon a feoffement 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, Habendum the one moiety to the one, & the other moiety Lit. ibid. 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, that they may be granted. Statutes. 3. H. 7. cap. 4. All deeds of gift of goods and chattels made of trust to ones own use, shall be voided. 13. Eliz. cap 5. made perpetual. 27. Eliz. cap. 1. Every gift, grant bargain, and conveyance, of lands & chattels, or of lease, rent, common, or other profits out of them, and every bond, suit, judgement, and execution since the beginning of her Majesty's reign, or hereafter to be had or made, for the defrauding of any persons iuct action, suit, debt, account, damage, penalty, forfeiture, heriot, mortuary, or relief, shall be voided against that person, his heirs, executors, etc. The parties or privies knowing such a fraudulent gift which shall justify it to be done bona fide, or shall alien such things so to them conveyed; forfeit one year's value of the lands or profits out of it, & the whole value of the goods and chattels, & the sum of such covenous bonds, & shall have half a year's prisonment: this act extendeth not to common recoveries, nor vouchees in a formdon, nor to any gift, etc. bona fide, & upon good consideration to any person, not knowing of any fraud. 27. Eliz. cap 4. Every conveyance, grant, charge, lease, estate, encumbrance, and limitation of use of Lands, tenements, or hereditaments, made since the beginning of her Majesty's reign, or hereafter to be made, for the defrauding of purchasers of the land itself, or any part or profit out of it, shall be void against the person so purchasing for money, 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 etc. upon good consideration and bona fide If any such conveyance etc. 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 etc. for money or other good consideration (the conveyance not revoked or altered) then the conveyance etc. shall be voided against the bargainees, etc. and all claiming under them (lawful mortgages 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 37. H. 6. 21. the party Soas 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 exactus, where indeed he was outlawed. 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, 9 E. 4. Den. 1. it is nothing worth: for it cannot inure also to make him a Denisen. If he grant land to A. in fee, which A. is 19 El. Ploy. 502. his villeine; this shall not manumise him: for the villainage is a foreign matter not expressed in the grant. But the King may created a Duke, and in that patent grant him Land by the same Br. patents 44. name, or make a Mayor or Commonalty, & by the same patent, give them Land, or grant them licence 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. As if he give lands to one and his heirs 18. H. 8. B. pa. 104 males. For this is a fee simple, and it is plain, the king meant to grant but an estate tail. Statutes. 1. H. 4. cap. 6. The King's grants shall be voided, if express mention be not made of the value, in the Petition of those that sue for it. A grant by an infant under the age of F. N B 202. 26. H. 8. 2. 21. years, (a) F. N. B. 202. c. 7. H. 4. 5. 12. one out of his right mind; whom we call none sane memory, or non compos mentis, or compelled thereunto either by (b) 9 H. 7. 24. dures of imprisonment, or fear of some (c) 39 H. 6. 50. bodily hurt threatened to himself, not to his father, mother, brother, etc. as loss of life & member: or though it be but of imprisonment: for imprisonment is a corporal pain, & one may be imprisoned that he may die of it. Otherwise it is of a menace to break or burned down one's house; for that is but the loss of ones goods, is avoidable, that is to say may be avoided at any time be entry action, etc. if they deliver it with their hand: as in a feoffement, 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, etc. or a feoffement by letter of attorney, etc. it is merely voided, and nothing 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 feoffement. So of a grant made by one that hath no Park. 5. understanding. As if he be borne dumb, deaf, and blind. But one dumb may make a good grant, or borne dumb & deaf. For diverse 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, 18. E. 4. 2. drink, & apparel: for he cannot live without them. Other grants of his where himself hath likewise benefit. We call it Quid pro quo, are only voidable, as if he let land for years, 18. E. 4. ibid. reserving a rent. To this place belongeth exchange, which Lit. 13. is a mutual grant of equal interests, each in exchange of other. As of land in fee simple, for other of the same estate. But to exchange an estate pur Park. 55: altar vie, for an estate for life is not good. For though both have a free hold, yet an estate during another's life, is not so high a freehold, as an estate during his own life. And in every exchange there be two grants, Lit. 13. for each granteth to other his land in exchange. And the very word itself of exchange 9 E. 4. 21. 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 be not in. Prescription is as available as any Lit. 40. grant. As that one and his ancestors, time 19 H. 6. 34. out of mind, have been seized of a certain yearly rent out of land, & distreyned for Lit. ibid. it being behind. Or if a velleine and his ancestors, as of villains in gross; or that one, and those whose estate he hath in the Manor of D. have had a park there time out of 3. E. 3. Br. incid. 39 mind. For of such things as cannot be granted without deed or fine, the prescription Lit. ibid. must be in him & the 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 showed to the Court. As of a villeine in gross, a (a) 12. H. 7. 18. hundred rend etc. Otherwise it is of things appendent or regardant to a manor A possession is either upon a limitation, or condition, or else absolute. Upon a limitation which ceaseth upon the 11. H 7. 17. 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 thereby his estate is determined & voided. Lit. 90. So if lands be given to husband and wife during the coverture: or a Parson make a leas to one so long as he is parson; this in both cases is an estate for life upon limitation. Upon condition, which is only defeasible upon the doing or not doing of something. As a lease for years or life, upon condition L●t. 74. & 8●: 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 see simple, or make a gift in tail, or a lease for life or years, reserving to him & his heirs a yearly rend, payable at a certain time, upon condition, if the rent be behind etc. it shall be lawful for him & his heirs into the same lands or tenements to reenter etc. 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 & hold in his first estate, and thereof quit and clean to ouste the feoffee, donee, or Lessee, etc. 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, & do that which to the office appertains, otherwise the grantour 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, Bailiwicke, or other offices. 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 enjoy. In action, whi●h one aught to enjoy, either in respect of a right or title. Right is when a wrong was done before: 15. El. Ploy. 555. Manwood. as by wrongful entry upon his lands, or taking away his goods, etc. Title, when no wrong was done. As in a feoffement upon condition, and the feoffee breakech the condition. Of things in action: as cause and matter Preamble of 32. H. 8. 8 cap so reciteth the Common Law. of suit, entry to continued one's right, or upon title: as for a condition broken, & such like, no stranger shall take advantage And strangers are accounted (besides the parties themselves, which are not either privy in Park. 164. blood, as the heir to the feoffor: or in succession, as the successor of Mayor and commonalty, etc. or executor, administrator, etc. 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 advantages 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 or confirmation: for a release 1. H. 6. 4. or confirmation of land to him that hath nothing in the land, is voided. Release is a passing of the grantors' interest. The form whereof is, De me & hared. Lit. 105. quietum clamavi, etc. Confirmation is a ratifying of the grantees possession. The form whereof is. Confirmavi C. de D. statum & possessionem &c. Lit. 119. 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. For the right of the thing Real or personal, cannot be given 6. H 7. 9 nor released by parol. Not more can a reversion, rent, common in gross, or villeine in Park. 13. gross, be granted by paroll .. But a horse, ox, or such personal thing, corn, & 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 remainder passeth by livery and seisin. A Deed is a writing sealed and delivered. For if either a parchment with Park 25. out Writing be delivered as one's Deed, yet it is not his Deed, though an Obligation be afterwards written in it: or Park. 27. if it be a writing but not sealed at the time of the delivery of it as his Deed, it is a scroll and not his deed. Or if I make & 9 H. 6. 37. seal a deed, and the party take it without my delivery; I may pled it is not my deed. And belongeth always to him whose possession is made by it. As if I release to two disseisors, and deliver the Deed to one, the 34 H. 6 1. other surviving shall have it. Or if the 6 H. 7. 3. Disseisee release to the Disseisor, and he make a feoffement of the land, the feoffee shall have the release. But if a feoffement to two without deed, and the writings of the land are delivered to the one, the other shall not have them: or if having two joint 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 1. H. 7. one not lettered, that is, 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 Lit. 88 14. El. Deed of both: 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 15. El. Pl. 434. lease by indenture or fine, both parties are estopped to say that the lessor had nothing in the land: so as if the lessor come afterward to 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 bore acts, without indenture Lit. 149. or other matter. Work an estoppel in like sort. As if the husband discontinue the wife's land, and take back to him and his wife for their lives: the wife is remitted, but the husband (by this bore taking back, is estopped to say so. CHAP. 3. Of Hereditaments, where: of Estates. A Possession is an Hereditament or Chattel. Hereditament is a possession which one may have an Estate in. One borne of Parents out of the King's allegiance; such an one we call an alien. But (a) 36. H. 8. Br. denisen. 9 1 R. 3. 2 Hussey. an an aliens Son, borne in England is no alien: Nor by the Common Law, one borne beyond Sea, of English Parents, in the King's subjection. And the Statute 25. E. 3. only maketh it more clear; is disabled to enjoy any hereditaments, he shall have no (b) 38 H. 8. Br. denisen 10. & 16. real nor mixed action, nor is inheritable: but either his younger brother being a denizen, shall have it, or the (c) So Doct & Stud thinketh Br. denisen 7. Lord by Escheat. Prerogative. Therefore such a one purchasing (d) 14 H 4. 20. c. Mar. Br. denizen 25. any, though it be but for years, it is the Kings. An Estate is particular, or an inheritance, And is Uncertain, or Certain. Uncertain, which is determinable at another's pleasure, as an estate at sufferance, and at william. At sufferance, when after lawful occupation, he continueth possession without authority. 7. E. 4. 6. As lessee for years, holding in after his term expired, and before any entry made upon him. But if he continued after entry upon him, then is he a wrong doer. At will, when an estate is made during Lit 24. 14. H. 8. 12. pleasure. Statutes. 6. H. 8 cap 15. If the King give land, or an office, durante bene placito, & after grant the same unto another: the second grant shall be voided, 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. As upon a lease for years or life; 7 E. 6 Ploy 83. upon an (a) 11. H. 4. 42. estate to one & his heirs during the life of I S for in effect it is but an estate for life. But not upon an estate to one and 4. E. 6. Ploy ●9. his heirs, so long as I S. hath heirs of his body; For that is a fee simple determinable. Nor (b) 3. E. Pl. 235. & 247. at the Common law, upon an estate to one & the heirs of his body: for it was a fee simple conditionally; (c) ibid. neither could any reversion be of it. Remainder, is a residue of the estate, at the same time appointed over: and therefore 38 H. 6. 30. cannot be said to be ex assignatione, but ex dimissione of the Lessor, because it passeth at the same time. Reversion is a residue of the estate, not at the same time appointed over. As if a Lit. man let land for life, 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. As if tenant Lit. 137. a fundamenti legum. ꝑ Br. Forf. 96. for life (or years) of land make a feoffment 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 (b) 1. H. 7. 22. for life take a fine of a stranger, sur conusance de droit, or sur release; for such a fine increaseth not his estate. But a (c) 42. H. 3. 20. fine by tenant for life to a stranger, sur conusance de droit come ceo quil ad de son done, is a forfeiture. So if tenant for life (d) 9 H. 7. 20. pray in aid of a stranger, or (in (e) 9 H. 5. 14. a writ of right brought against him) join the mice upon the more right. And these are by reason of the estoppel. Term's may be surrendered: that is to say, yielded up and drowned For a surrender cannot be of a fee simple. to him that the 12. H. 4. 21. next and higher estate. As two jointenants, 22. H. 6. 5. and to the heirs of one, he that hath the freehold cannot surrender to the other: for both have a joint possession, and the same estate. But Tenants in Common may: As the alienee of him that hath the free hold in Park. 113. the former case, may surrender to the other Park ibid. Tenant for life, where there is a remainder for life with remainder over in fee, cannot surrender to him in the remainder in fee; for he hath not the next immediate estate. Lessee for life cannot surrender to Park. ibid. him in the remainder for years: But to him in the remainder for life he may, for that remainder (as unto him in the remainder) i● an higher Freehold than the others estate, which is unto him but pur altar vie. Statutes. Glocestr cap. 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 (in deed) if he be actually seized 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 altar vie, that is, for another's life, where the tenant pur altar vie dying before Lit. 167. the other, whom we term Cesti qui vie, he that can first hap it, shall enjoy out the term, and is named an occupant, but if land be let to one and his heirs during another's 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 9 H. 6. 44. for years, without privity. 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 eiect 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 Lit. 166. 26. H. 8. 3. 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. A●● if the Lessee be ousted, yet he may have an action of Covenant. But in a warranty of a fee or , the party shall have no advantage unless he be tenant of the land. Every exchange hath a warranty knit 3. E. 3. form. 44. by law. And therefore the Exchangor or his heir may vouch to warranty by an exchange without deed, and his Assignee rebutte. Inheritance is an estate descendable: for Lit. 1. inheritance never lineally ascends, as from the son (that purchaseth in fee simple, & dieth without issue) to the father: but always descends, as to the uncle, brother, etc. to his heirs that hath actual possession. As if the eldest brother once enter, his Lit. 2. sister of whole blood shall inherit, & 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. An heir is the next of worthiest of whole Lit. 2. blood: for the half blood is inheritable, being also of blood to the first purchasor. So the blood of the father's side is worthier than the mothers: the elder brother Lit. 2. & 3. worthier than the rest. Therefore these shall inherit first. So, lands purchased may go to the heirs 49. E. 3. 12. of the part both of the father and mother of the purchasor, unless it be once attached in the heir of the part of the father; for them the heir of the part of the mother shall never have it, because they are not of blood to him that was last seized. But Lands descended go only to the heir of that part from whence it descends: as if from the father who did purchase it; than 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 son's mother. For though they be of blood to the son that was last seized: yet they are not of blood to the father which was the first purchasor. He that is begotten out of marriage, is called 1. H. 6. 3. a bastard: for if a woman great with child take a husband, the issue borne (though it 1. H. 6. ibid. 7. H. 4. 9 be within six weeks after) is no Bastard. Or if the wife clope from her husband, and continued in adultery, yet the issue borne during that time (if both be within the four Seas) is intended lawfully begotten. And if one die, his wife privement inseint 21. E. 3. 29. (that is, so with child as it is not discerned) and she take another husband, the issue borne within a month (or such a time as it is impossible he should beget it) shall be accounted the son of her first husband, and such a bastard is of blood to none: in Law, (a) Lit. 41. nullius filius. And therefore cannot inherit: nor bring (b) 35. H. 6. 9 a Writ of Detinue as heir; nor be a villeine (c) Lit. 41. but by his own confession in Court of Record: and the land shall (d) 2. E. 2. baste. 20. escheat where there is no issue but such a bastard, nor other heiere. But (e) Lit. 94. marriage following after, gaineth him the right of inheritance, if after the father's death he enter before his younger brother, (f) 17. E. 3. 59 baste 32. or sister if both be females, borne (g) 3. El per Dy. in sir Th' Gerrar. c. of the same father and mother within espousals: who is called mulier puisne, and the other Bastard eigne, and continued (h) 2. E. 3. 16. the possession all his life without interruption. And that (i) 36. ass pl. 2. Br. dis●ent 29. although the mulier puisne be an infant: because this bindeth the right. For (k) 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. If the next be women in equal distance, Lit. 53. as daughters, sisters, Aunts, etc. they shall inherit alike, and are but as one heir, called parceners or coparceners. Where the general entry of one, is of Lit. 160. the rest, if they list. So is not a special entry to her own use. As if Tenant in Taile have issue two daughters, and the eldest entereth into the whole, and thereof maketh a feoffement with warranty; this is a collateral Warranty, and a bar to the puisne daughter for her moiety. Which proveth, That this special entry is not the entry of both: for than it were a Warranty commencing the disseisin, and no bar. But all this is to be understood where the other coparceners list to have an entry for them, and not otherwise. And therefore in a Partitione facienda 4. H 7. 9 of rent, it is a good plea for the defendant if she is sole seized, without that, that she holds pro indiviso. And the plaintiff is driven to a nuper obijt. And if one enter, 43. E. 3. 19 both cannot be vouched as heirs, for that is to their disaduamtage. But both may have an assize. The inheritance itself that descendeth, shall be charged by the deed of the same (a) 10. E. 4. 10. Ancestor, Whether Obligation, covenant, annuity, warranty, or whatsoever else: but not by any bore matter (b) 10. E. 4 10. en fait, as of one's Ancestor time out of mind have been wont to pay an annuity, etc. Binding himself and his heirs. But if either a man bind his heirs to pay (c) 31. E. 1. gr. 85. xx. l. a year, or such like, but not himself; or himself (d) 15 El. Pl. 457. Br. Annuity 13. 2. H 4. 4. 13. without naming his heirs: there the heir shall not be charged, though he have assets by descent. And therefore (e) 15. El. Pl. 441. 17. El. Dy. 344. the heir being charged only by reason of assets, when he hath assets, the same is counted his own debt, & the action of debt lieth against him in the debet & detinet, not in 40. E. 3. 15. the detinet 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 revertione levanda cum acciderit. And a special Writ shall go out to extend the whole. Statutes. Merton. cap. 5. A Nomine poenae shall not incur upon an heir within age. The dying seized of the inheritance and Lit. ca of descents. freehold together. Not of a freehold only, as of an estate for his own or another's life, nor of a remainder or reversion where the is out of him. Whereby the land descends unto his heir. For if it escheat, as by the death of Li●. ibid. the Alience of the Disseisor, 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 seized of a disseisor, (a) Lit ibid. abator, (b) 4. E. 6. Pl. 47. or intrudor; or of one that hath but title that may have an action: as an Infant (c) Lit. 96. whose feoffee after his full age, dieth seized: he (d) 21. H. 6. 17. in the reversion, where tenant for life doth Alien, and the Alienee dieth seized; the Devisee (e) 9 H. 6. 25. 21. H 6. 17. 33. Ass pl. 11. of land in London, if the heir enter and die seized. For the Infant may have a Dum fuit infra aetatem, he in the reversion a consimili casu, & the Devisee in that case an ex gravi querela. But if the Disseisor of the feoffee upon 47. E. 3 11. 1. E 6▪ Br. Devise 36. condition, or an Alienee in Mortmain die seized: or if a man device, that I. S. shall cell his lands at London, etc. and the heir be disseised or make a feoffement, and the Disseisor or feoffee die seized: 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 Lit. chap. of contin. claim. 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 seized 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: for that is a fee simple 40. El. Pl. 250. at the Common law: but the having of issue made it a more perfect fee simple than before. Which before issue cannot be alienated, 30. E. 1. Form. 85. after issue had, becometh an absolute Fee simple. And may be alienated or forfeited by attainder (a) 7 E. 3. 36. 8. per a El. 11 Pl. 240. 30. E. 1 ibid. of 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, & called an estate Taile. 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. cap. 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 & wife (to whom the land was given) it shall return to their issue, or to the giver or his Heirs, as aforesaid. 34. & 35. H. 8. cap. 20. Not 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 bar him of his entry. Tenant in tail shall take no advantage for any recompense 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 Lit. 4. & 60. an inheritance to the Donees, & the heirs of their two bodies begotten. But land cannot be given in Frank marriage H. 8. Br. ●●an. 10. with a man that is Cousin to the Donor, but always with a woman. 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 frankemariage) she shall have no more unless she be content to put those lands in Hodgepodge; that is, that the value thereof be allowed to the other. As if x. acres were given to her in Frank Lit. 59 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. But if the lands descend from the father of Lit. 61. the Donor, or other Ancestor, and not the Donor himself; she shall have her part in that which descendeth, without putting in Hodgepodge: for she is not advanced by him, but by the other. Not more shall any Hodgepodge be, but in Lit. 61. 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 Lit. 59 land in Hodgepodge) the Law intendeth that she holds herself sufficiently advanced. And note, that upon the Hodgepodge, 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 27. H. 8. 15. Commonalty, without saying, 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 an Action of Trespass, 21. E. 4. 66 cannot be given in a Corporation by a lease for term of their lives: for being a Body politic (which never dieth) they cannot have such an estate. Here two special estates for life; dower, & tenancy by the courtesy of England, do arise after ones death that hath an inheritance joined with the Freehold. For they (a) 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 (b) 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 been 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 Donée be a woman.) As if lands be given to a man Lit. chap. of dower. and the heirs that he shall beget of the body of his wife; the same wife shall be endowed, but not a second wife. And of lands given to a woman & the heirs of her body begotten by the husband, her husband may be tenant by courtesy, but not a second. So of 4. El. Pl. 239. landss 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 courtesy, for their issue cannot inherit. But in both cases the wife Lit. chap. of dower. of every issue (inheriting by force of that gift) shall be endowed, and the husband of every such issue may be tenant by courtesy. 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, & whatsoever husband the wife taketh may be Tenant by courtesy. Dower is an estate whereby the woman Let. 7. hath the thirds in severalty, who must be nine years of age at the time of her husband's death. Detaining of deeds 9 F. 4. 47. concerning inheritance descended to the heir, is a bar of her Dower, so long as she detaineth them: but (b) 2 H 7 6. so it is not of lands purchased by the heir. If the husband at the Church door, Let. chap of dower. (which is called an endowment, ad ostium Ecclesia, or, being (c) So he must be. Littlet. 8. heir apparent by the fathers or mother's consent, which is called an endowment, ex assensu patris or (d) F. N B. 150. matris, etc. for the (e) 8 E. 2 dower. 154. Son must make the endowment, and they assent, do (f) Park. 86. presently upon affiance, not (g) 44. E. 3 43. before espousals, endow her of any certainty, as of the whole moiety, or less part, etc. this shall bar her of the thirds if she agreed to it. But so shall not an endowment, ad ostium F. N. B. 150. camera, nor, ex assensu fratris, or consanguinei: F. N. B. 150. Therefore it is at her election after her husband's 21 H. 6. 25. death to hold her to this endowment, or to take her Dower at the Common Littlet. 8. law. And in such endowments the wife may enter after her husband's death, without any body's assignment, (because the certainty of the land which she shall have appeareth) which in dower at the Common law she cannot. Statutes. Magn. Chart. cap. 7. The wife, after the death of her husband, shall abide in his chief message forty days, within which time, her dower shall be assigned her If the chief message be a Castle, than she shall have a competent house provided her till her dower be assigned. Westm. 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 himself, 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 jointly with her husband, or only to herself, or to her use in any lands, etc. of the inheritance or purchase of her husband, or given to the husband & wife by the husband's ancestors, or any seized 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 voided. And he to whom the land aught 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 husband's death. But if the woman were sole, the recovery or discontinuance barreth her for ever This act extends not to any recovery or discontinuance with the heir next inheritable to the woman, or by his consent of Record enrolled. 27. H. 8. cap. 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 wife's life for her jointure, she shall not have any dower: upon a lawful eviction of that jointure, she shall be endowed according to the rate of land of her husbands, whereof she was dowable. Such a jointure being made after marriage, the wife (after her husband's death) may refuse it, and betake her to her dower, unless the jointure be made by Act of parliament. tenancy by the courtesy of England is ●● estate, whereby of an actual possession, the husband that had issue by her borne Lit. 7. alive (whether the issue be male or female, heard, or seen, and whether it afterwards die or live, or if (a) 28. H. 8. Dyer 25. Fitz. the issue be borne alive, it is sufficient, though it be not heard to cry (in as much as he may be borne dumb) shall have the whole. But no tenancy by courtesy shall be of a Park. 90. & 89. possession in Law. As where lands descend to the wife, and she dieth before the entry by her, or her husband, or any for them. Nor of a thing in suspense: As where tenant in fee of the Land, marrieth a woman that is seized of the signiory in fee; the husband can never be tenant by the courtesy of the Signiory: for by the intermarriage it is suspended. And it is called tenancy by the Litt. 7. courtesy of England, because no other Realm useth it. CHAP. 4. Of Land. HEreditaments, or tenements, or bore hereditaments. A tenement is a possession holden, the fee simple whereof, when he that hath it dieth without heir, cometh to the Lord. Litt. 2. 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 39 ass pl. 7. purchase land, and die without Issue. Of this sort are lands and Adnowsons'. Land is a tenement or manuel occupation. For if the tenant of twenty acres of land 21. H. 7. 39 before Quia emptores terrarum, make a feoffment 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 xjx. acres, and vj. pence rend, 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 holden, and declare specially. Or he may have a general Writ of the F. N. B. 139 c. land, or a special Writ, because the Mesne held the land unde redditus ille provenit. All which proveth, that indeed not the signiory, but the land is holden. Therefore of land rend etc. the pleading is, he was seized of his demesne as of fee. But an advowson lieth not in manuel occupation: therefore Lit. 3. the pleading there, is, He was seized in fee, without saying in demesne. Under the name of land are comprehended not only gardens, meadows, pastures, woods, rivers, etc. but also messages, tofts, mills, Castles, and such like. For in a Praecipe quod reddat of a message, the warrant of attorney, is quod talis Po●lo suo (i) posuit loco suo I S. in placits terrae. Churches and Churchyards belong to 11. H. 4. 12. the Incumbent. For things annexed to the Church or Glebe: as trees or grass growing there, are the Parsons; and he shall have an Action for them, and for entry into the Churchyard or Glebe. And if he be ejected out of 38. H. 6. 2●. his Church, and another take the profits, he may have an assize 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, but in rent or profit Doct Stud. 16. out of land. Prerogative. All land is holden of the King immedidiately, or by means: himself having not 50. Ass. pl. 1. 18 El. Ploy. 498. any higher upon earth, of whom to hold. Escheates of all cities appertain unto 8 E. 3. Escheat 12. 8. El. Ploy. 314. the King All mines of gold and silver or wherein the gold and silver is of the greater value, are the Kings. Among coparceners the eldest upon partition 14. H. 3. stat. Hib. doth so recite it. shall have the chief house. Seisin delivered of land, we call it livery of seisin; & the making of the estate we call a feoffement, always passeth a Free Lit. 137. hold, though he be but Tenant for years, at will, or sufferance, that maketh it. And 4. E 6. Ploy 25. Lit. 12. otherwise a free hold of land cannot pass save by release (a) Lit. 109. & confirmation, (b) Lit. 121. where they were by way of enlarging an estate. As a lease for years, and afterwards release or confirm to the Lessee, to have and to hold to him for life, or to him & the heirs of his body, or to him and to his heirs, etc. for a feossement with livery made by one to his Tenant (c) 22. H 6 43. at will, or (d) 22. E. 4. 38. for years, is voided, except it be by Deed, and then it shall inure by way of confirmation. Exchanges, (e) Lit. 13. endowments, (f) Br. Dower 7. & surrenders. (g) 44. Ass pl. 3. 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 38. E. 3. 11. 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 2. H. 8. Br. feoff. ●0 the feoffor, and the feoffment shall never effect. CHAP. 5. Of Aduowsons'. ADuowson is the interest of presenting 15. H 7. 8. to a Church. And this also lieth in tenure. For a common person may give it to hold of him. And the Writ of Right of Aduowson is, Quod clamat tenere de te. CHAP. 6. Of Signories. HItherto of Tenements. Bore 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 hereditaments: Otherwise they are but suspended or gone for the time. As if the Lord purchase the tenancy in 34. Ass pl. 15. 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 signiory. But if one that hath a rend charge in fee, grant it for life to the Tenant in fee of the land, ot in fee to the Tenant for life, of the land, that is by a suspension of the rent. And therefore (a) Abridgement of Assizes in the first case it may be with a remainder over, and (b) Park. in the second the Tenant may grant it in his life, & 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 rend charge in fee going out of land, entermarrie with a woman Tenant in fee of the land: or if the Tenant infeoff his Lord upon Condition. For there in the first case the husband may 5. E. 3. 16. grant this rent, notwithstanding the entermarriage: and in the second case, if the tenant Park. 19: enter for the condition broken, the signiory is revived. For the estates are alike perdurable. These are leviable by distress, or such as cannot be distreyned for. Distress is a taking of chattels As (a) 2. H. 4. 15. a Cart full of Corn, a fold (b) 20. E. 4. 3. of Sheep, etc. a (c) 14. H. 8. 25. Mill stone, etc. 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 removed off from the hooks. But a Millstone, 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. Not more can windows and doors hanging upon the hooks, though they be removable, found upon the same land, but in 9 H. 6. 9 13. E. 4. 6. other land not holden of him, he cannot distrein for his signiory except it be by the Tenants grant, for satisfaction of arrearages for dimes let reserving a rent, cannot be distreyned for the rent, not when they are severed from the ninth part, in as much as 11. H. 4 40. there is no distress but upon Land in Demesne, neither could a distress be taken upon 3. Mar. Pl. 154. ● Pistarie, but that it containeth land and demesnes. Prerogative. The King may distrain in another 9 H. 6. 9 13. E. 4 6. land of the same man's for his signiory or rend charge, but so shall not his Grauntee. 9 H. 6 9 is, That a common person cannot distrain for his signiory, but in the land holden of him, except it be by his Tenants grant. But the King may in any place. 13. E. 4. 6. is, That the King for his services or for a rend charge, may distrain in all his Tenants lands. But so shall not the King's Grantee. Statutes. Marlb. cap. 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. ca 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, to give them meat &c he that distraineth shall not be 9 E. 4 2. 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 distreyneth, he shall answer for them. Statutes. Marlb. cap. 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. Phil. & Marinell cap 12. No distress of Cattles shall be driven out of that hundred, rape, wapentake, or lat●, 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 replevies, the pain of both these v. l. and triple damages. No person shall take above iiij. d. for the poundage for any whole distress impounded: & where less hath been used, there to take less, upon pain of v. l. and loss of the money he he hath taken above iiij. d. any prescription notwithstanding. Bore heredieaments that may be distrained for, are a Signiory, & Rent-charge. Signories are services whereby lands are holden. Services are common to all certain Estates, or proper to Inheritances. Common, as fealty, and rend service, whereof fealty is incident to every such estate. For Lessee for life or years, shall do Li●●tlet. 29. fealty of common right. But Tenant at will shall not, because he hath no sure estate. And therefore the signiory Lit. 23. or tenancy being altered (whether by descent or grant) it must be done anew. All other both common and proper) grow by reservation. Fealty is an oath to be faithful to his Lit. 19 Lord for the tenements. Rend service is a rent to be paid to the Lord at certain set times. And to this place we may refer all services that lie in fesance. As to be one's butler, Park 12. to cover his house, to scour his ditches, etc. But a reservation of things in prender or user, as to have Common for four beefs, 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, tenant in Frank almoigne, alien to Littlet: 31. a secular man, he shall do fealty to the Lord, because a secular man cannot hold in frank 7. E. 4. 10. almoigne. And the Tenant in this case holdeth of the Donour, and is within his fee. For the King's grantee of strays infra seoda sua shall have them in lands holden of him in frank almoine. And the tenant shall have against him a Writ of mesne, or Ne injust vexes. And if the Abbot tenant in frank Almoine, and all the monks die, the lord shall have the escheat; for the which he is bound to say prayers, & these prayers are the services But because the 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, and save 7. E. 2. ga● 79. Lit. 32. for acquit. him harmless of all manner of services against the Lords above, which we call acquitaile. Divine service is a spiritual kind of service Litt. 30. limited in certain. As to distribute in alms to an hundred poor men, an hundred pence, etc. These are the services whereby every certain estace may be holden. There follow those proper to Inheritances. The grantee whereof shall hold of the grantor by such services as he holdeth over, if other services be not reserved. As if Park. 134. there be Lord, and tenant by Knight's 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 & his heirs by Knight's 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 feoffement were to hold of the Lord paramount, that were voided. So if the feoffment were to hold of any other stranger. Statutes. 18 E. 1. Quia emptores terrarum. In all feoffements to one and his 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, & 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 oveltie 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 paramout. But Donees in franke-marriage cannot hold but by fealty. And therefore a gift in franke-marriage, rendering a rent, the 4 H. 6. 22. reservation is voided, for it is contrary to the nature of a franke-marriage, which is, to tender nothing till the fourth degree be past. Some think the reservation good, and the franke-marriage thereby destroyed. Old tenors, Fol. 7. But all agreed, that the franck-marriage and the reservation cannot stand together. And that of the donor till the fourth degree be 17. E. ●. past. And therefore a gift in frankmarriage, the remainder in tail to a stranger, is a good frankmarriage, 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. who must also Littlet. 4. acquit them of all manner of services. And therefore the Donees in frankmarriage 12. H. 4. ●. may have a Writ of Mesne. Prerogative. One that holdeth of the King, as of his 30. H. 8. Dy. 44. person, which is a tenure in chief. But if a Prince of Wales, before Statute of Quia emptores terrarum, make a feoffement to hold of his person, and after is made King, this is no tenure in chief, for a tenure in chief is the higest & 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, & take his original creation from the King himself, not from a subject. So to hold of the King, as of his honour of Gloucester is no tenure in chief; for it is not of the King's person, alienating the Freehold without (a) 14. E. 3. Q▪ impedit. 54. licence, forfeiteth the Land. Statutes. Madge Chart. cap. 31. By a common Escheat. of a Barony, etc. to the king, the Tenant shall not hold in chief. 1. E. 6. cap 4. Not more when a Signiory cometh to the King by treason or dissolution. 1 E 3 cap. 12. The King from henceforth shall not hold as forfeit such lands if they be alienated, but shall 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 Let. 19 do nor take homage, but only tenant in fee simple or in tail, in his own or another's right. As the husband for lands 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 courtesy. Neither can a man at this day make a manor 23. H 8. Br. comprise 31. notwithstanding that he give Land to many severally in tail, to hold of him by services & 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, acknowledging Lit. 18. 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. This is to be Lit 9 done only to the Lord himself. But the Lord's Steward or bailiff may take fealty Lit ibid. for him, and but once during the Tenant's (a) Lit. 33. b. 24. H. 8. Br. Br. foaltie 8. 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 King's case. Prerogative. The King's Chamberlain shall take homage F. N. B. 256. ●. for him. Statutes. 33. H. 8. cap. 22. A fee set down for respiting 14 H 3 Stat. Hib. so reciteth it. of homage in the Exchequer or other Courts. When an inheritance descendeth to coparceners, the eldest 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 Lit. 33. by homage ancestrel, holdeth not by homage ancestrel, nor shall have warranty from the Lord, because the continuance of the tenancy in the Tenant is discontinued. Not more shall the Tenant himself by homage ancestrel, if he alien in fee, and afterwards take it back again. And if the Lord by homage ancestral 18 H. 6. 2. grant his signory, the Tenant need not atturne, unless the grantee will warrant the land to the Tenant and his heirs, for otherwise his warranty were lost, because by atturnment the homage ancestral is destroyed. that bindeth him to warrant 45 E 3. 23. and acquit the Tenant. And the tenant 11 H 4. 52. may have a Writ of mesne. But if the Lord Lit. 33. have not received homage, he is not bound. Therefore such a one may compel the Lord to receive his homage by a Writ de homagio capiendo. 45 E. 3. 13. Suit of court is a service by coming to the Lords Court. For suit of Court Old tenors. F●l. vlt. one shall be distreyned 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 distreined: yet a tenure to come to a leet or hundred, 12. H. 7. 17: and to do there some special service, as to be a Crier, etc. is a good service, but not suit service. And every suit service is d. 21. E. 4. 25▪ intended to a Court Baron. Land in the Lords hands (whereof several men hold by suit of Court) is termed a Manor: the land considered apart from the service, is termed demesnes. Statutes. Marl. ca 9 None shall be distreined to do suit of Court unless he be specially bound to it by his Charter of feoffement; except such as they or their ancestors were wont to do it, forty years before the making of this Statute, whether they were enfeoffed 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 Knight's service: both draw unto them certain commodities to the Lord, partly in the tenant's 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. It is called aid pur fair fits Chivalier, 40. E. 3. 22. and pur file marier. 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. cap. 31. Reasonable aid shall be twenty shillings for a whole Knight's fee, and as much for xx. l. land in Socage: & 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 father's 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. cap. 11. Reasonable aid to make the king's 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 rate in the former statute. The other after his death are Wardship, and relief. Wardship is the custedie of the body & Land of the heir within age, which shall Fitz. guard 67. be till xiv. 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: Lit. chap. of Socage. As if one hold by fealty only, or by fealty and certain rent, or by homage and fealty, or by homage, fealty, and rend for all manner of services, or by escuage certain, that is to say, by paying a certain sum of money, as half a Mark, etc. 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, etc. or by paying a certain Rent for Castle-ward, etc. Where the next of Kinne, to whom the inheritance cannot descend, As if land descended of the part of the father, than the mother, or next cousin of the mother's side: if of the part of the mother, than the father, or next friend of the father's side shall have the heir's wardship till xiv. to the Heirs own use. And therefore must tender an account to the heir at his full age, of the issues and profits of his lands, & of the value of his marriage, if he marry him within fourteen years of age. And if he die before the heir's 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) let the land; yet the wife after her husband's 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. Marleb cap. 17. Guardian in Socage may not do waist, exile, nor destruction, nor give nor cell the marriage but to the commodity of the heir. Here for relief the Lord shall have presently Littlet. ibid. so much as one year's rent amounts unto. As if the tenant hold of the Lord by Fealty, and x. s. rend payable at certain terms of the year (as 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 & by, without tarrying till the day of payment of his rent, & of what age soever that the heir be. Prerogative. Tenure by Socage in chief giveth the King primer seisin, or the value of that land 33. H. 8. Br. Livery & onster lomaine 60. Stamf. prer. c. 35. H. 6. 52. F. N. B. 250. by a year, if the heir be of the age of xiv at his ancestors death: therefore there the heir shall be driven to sue his livery, but not if he be under xiv, at the death of his ancestor. And if being under xiv he sue his livery, it shall be una cum exhibibus; but not if he sue it at xiv. If one hold of the King's 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, etc. it is called petty Sergeantie, and is but a tenure in Socage. Knight's Service is a service touching Lit. chap. of knight-service. war to be done by the body of a man. 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 knight's fee; or 20 days if he hold by the moiety of a knight's fee, & so by proportion) whensoever the King maketh a voyage royal into Scotland, etc. 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-gard) or to blow a Horn in time of invasion by enemies, which is called Cornage. To all knight's service homage is incident, 7. E. 4. 28. but not unto Socage. Here the Lordship is the (a) Littlet. 22. Lords (b) Lit. 72. to his own use, Therefore his executors shall have the ward during the heir's nonage (c) Br. guard 111▪ & that till xxj 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. Madge chart. ca 3. The lord shall take Homage of the heir before he have wardship. Marl c. 6. If one infeoff his heirs within age to 'cause the lord to loose his Wardship, & die, yet the lord shall have the wardship. So when a fraudulent feoffement is made by a Tenant, upon condition to reverses, after certain years, to him or his heirs, if the feoffees pay not a certain sum, 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 aver this matter) he recover, yet the feoffees shall have the Land again, when the heirs come to age. The Lord not being able to aver this, shall tender the feoffees their costs and damages. 32. H. 8. Cap. 1. Two jointenants 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 above said, and not otherwise, and saving to the King during the Wards minority, the reversion of such jointenants, and Tenants in dower. Magna Chart. Cap. 3. The heir being made Knight within age, yet the land shall remain in the Lord's custody to the end of the term. The wife shall be barted of her dower, both dower (a) 2 H. 7. 6. at the Common law, and dower (b) 4 H. 3. dower. 174. ex assensu patris, or, (c) 11 H. 3. dower 187. ad ostium ecclesiae, so long as she detaineth the heir from him. But in pleading she must show 2 H. 7. 6. the heir's name, and whether it be male or female. Wardship of the body giveth the Wards 2 H. 7. 9 marriage to the Lord, as a thing of mere right, pertaining to him. And that whether he will be married by the Lord or not. Statutes. Merton. Cap. 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 satisfy his lord for the value of his marriage, as much as any man would give, before he receive his land. Merton. Cap. 6. An heir, after fourteen years of age, marrying himself without the Lords licence (who tendereth 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. Cap. 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 tendered by the lord, he shall hold the land till xxj and over, till he have taken the value of the marriage. 4. & 5. Phil. & Mar. cap. 18. A woman above xii, & under xuj, agreeing to a person that contracteth matrimony with her contrary to the form of the stat. (which see fo. 〈…〉) 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, etc. which he had at the time in possession, reversion, or remainder during her life. If one hold sundry Lands of diverse Lords, the wardship of body goeth to the Lord of that land which the Tenant held first. Who is called a Lord by priority, and F. N. B. 142. the other by posteriority. And it is the feoffment of the land which maketh the priority: for the pleading is, That he holdeth this land of him per antiquius feoffamentum, than he holdeth the other land of the other. Therefore if the Tenant of Lands holden by priority, maketh a feoffement 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 signiory in fee, yet the tenure shall be of the grantee by priority. So though the grantor take an estate of the Seignory back again in fee. Prerogative. The King shall have the wardship of body, 12. E. 3. prer. 23. though the tenure of him be by posteriority. But his Grantee of the Seignory shall not. The eldest child (a) 33. H. 6 55. whether son or daughter, being heir apparent to the father, shall not be in ward for his body during his father's life. But if one having a son, take F. N B. 143. l. a wife seized of Knight's service, and hath another son by her, and after the wife dieth: this second son shall be in ward during his father's life, unless the husband be entitled to be tenant by courtesy. Prerogative. Tenure by Knight's service in chief, giveth to the King the wardship of all other Stamf prer. 1. The stat. of prer▪ c. 1. 16. in this point but a declaration of the Common Law. lands also. And further, (a) 33. H 8. Br. livery ouster lemaine 66. primer seisin, or the value of them all by (b) Stam prer. 14. half a year (if the heir were in ward) by a whole year (if he were not) (c) Br. Relief. 12. which primer seisine must be paid, and relief also. Relief for land holden by Knight's service, amounteth to an C. s for a whole Knight's fee, to a C. marks for a Barony; and to an C. pounds for an Earldom. Mag. Chart. cap. 12. calleth this old Relief, & according to the old custom of the fees, which proveth that statute to be but an affirmance of the Common Law. If the heir be within age at the Tenant's Old Nat. Bren per Br. relief. 13. death, no relief shall be paid to the lords that are to have the Wardship. And if one hold of several common persons by Knight's service, the Lords by posteriority shall have no relief, because they are to have the Wardship of the Land holden of them, though the Lord by priority only 24 E. 3. 24. have the wardship of the body. But if in that case there be any Land holden by Knights-seruice 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. Grand Sergeantie, that is to say, Tenure ●. 33. H 8. Dy. 44. of the King's person, for every grand sergeanty 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 war for him wheresoever within the four Seas, for if he can found none to do the service for him, he must do it himself, is a b. 11. H. 4. 72. Lit 36. special knight's service in chief, where the (d) Lit. 35. 11. H. 4. 72. king in stead of relief, shall have the value of the Land by a year. CHAP. 7. Of Rent-charge. Lit. 48. Rend charge is a rent with liberty to distrain. As when a man seized of land granteth by a Deed Polle, or by Indenture, a yearly rent going out of the same Land to another in fee or in fee tail, or for term of life etc. with clause of distress▪ or maketh a feoffement in fee by Indenture, reserving to himself a certain yearly rent, with clause of distress. CHAP. 8. Of Rend Sack. Bore hereditaments concerning land (for which no distress can be taken) are a Rent seek and common. A Rend Sack is a Rent without Lit. 48. liberty to distrain. As where a Rent is so granted or reserved as before, without clause of distress. When a Rent is granted for equality of partion 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; & 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 liberty be granted. The grant of a signiory, rend charge, & rend seck, as also of the remainder or reversion of any of these, or of the land itself, is nothing worth without Attornement, that is to say, the agreement of the tenant that presently must be charged. As Lord, mesne, and tenant; the Lord grants his signory, Lit. cham. atturement. the Mesne must atturne, and not the tenant paravaile: 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 signiory, he in the reversion must return to the grantee, & 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 let his land to one for life, the remainder in fee, there upon a grant of the signiory, the Tenant for life must atturne; for he is tenant to the Lord. So is not he in the remainder, whilst Tenant for term of life liveth. If lands be let for years, or given in tail, saving the reversion: Upon a Grant of the reversion, the Tenant of the land must atturne. And an Attornement may either be by words; as to say, I agreed or am content with the Grant; or I attorne to you, & become your Tenant by force of the grant: or else by delivering to the grantee, a penny, half penny, 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, etc. And if such attornment be not to the grantee in the life of the grantor, the Grant is merely voided. In the grant of a reversion depending Lit. 128. upon a Freehold, the Attornement of the Freeholder is sufficient, though he be not the tenant that presently must be charged. As if lands be let to a man for years, the remainder to another for life, and he in the reversion grant his reversion to another; the Attornement of him in the remainder is sufficient. CHAP. 9 Of Common. COmmon is a profit to be taken in another's land. As (a) 9 H. 6. 35. feeding his beasts, etc. And if a man give to I. S. in frank marriage with his daughter, Common for all his beasts, or other men's (if he should have none of his own) to do his business yearly, & to feed with the beasts of the grantor where they should go: there if the grauntor come afterwards to have no beasts, yet the Grantee shall have his common. But if the grant be wheresoever the beasts of the grauntor go, etc. there the grantee shall not have common, but when the others beasts are in common. Also upon a grant of common throughout a manor, yet he shall not common in garden, or land sowed, etc. nor take his common with beasts that are ● E 2. dower 123. not commonable, as hogs, etc. So of a common of estovers, that is to say, taking of reasonable houseboote, and hay-boote, etc. And such manner of profits Ibid. 2. E. 2. (though they be appendent to the freehold) cannot be parted. For if such an heritage descend to parceners, one shall have the whole profits, and 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 Tenant, 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 appurtenante, and for his Windmill; 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 king's high street, or church. and other Hereditaments of like nature. CHAP. 10. Of Villains. Bore hereditaments that concern the person, or merely of the persons themselues, or by reason of the person. Of the first sort are villains. A Villeine is such a servant as himself, and whatsoever he possesseth, Land, 22. Ass. pl. 37. rent, etc. but not things in action, as an obligation, debt, covenant, or warranty made unto him, is the Lords (a) 3 H. 4. 15. if he claim it. But the wife which the villain marrieth after his purchase of land, & before the Lord 19 E. 3. Dow. 171. enter, shall be endowed. 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 lords in his life time. Statutes. 19 H. 7. cap. 15. Upon a feoffement made to the use of a villeine, the Lord may enter into the land itself. Prerogative. The Lord cannot seize his villain in the King's presence. 27. Ass pl 49. The children of a Villeine are also Villains. And if one confess himself a Villeine 18 E 4 30. b. 18 E 4 ibid. 19 H. 6. 32. in Court of Record, the issue he had before are frank: but those born (b) after are villains. Villeinage beginneth by confessing a man's self to be one in a Court of Record. 41. E, 3 villain 6. And therefore in a Praecipe quod reddat, if the Tenant say that he is Villeine to I S. & holds the land in Villeinage; the demandant saith he is frank, etc. and he is found frank by the jury: yet he remaineth a Villain to I. S. A Villeine is set free, we call it manumission or enfranchisement, when the lord enableth him to possess any thing against 11. H. 7. 13. Lit●tlet 45. 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: & whether it be in fee simple, fee tail, or for life. But to make a lease at will unto him, is no enfranchisement: for he hath no certainty of his estate, seeing the Lord may put him out when he william. Statutes. 9 Ric. 2. cap, 2. In a suit by the Villeine against his lord, the lords shall not be barred of their villeins, because of their answer in Law. CHAP. 11. Of Annuity. THose by reason of the person, are Annutties, and Corrodies, or Office. Annuity is a yearly rent to be Lit. 48. had of the person of the Grantour. 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 Manor of D. This is a Rent-charge (for the Manor 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 extendat ad oner andam personam meam per breve de annuitate, etc. CHAP. 12. Of Corrodie. COrrodie is a partition for ones sustenance. Be it bread, ale, herring, a a. 25. Ass. pl. 7. b. 31. H. 6. 16. Ass. 16. yearly robe, or sum of money for the robe. So of a chamber and stable for my horses, when the same is coupled with other things, as with a certain messes of flesh, bread, ale, etc. But a chamber and stable themselves are not any Corrodie. And in the first case they shall pass without livery and seisin, but not in the other. CHAP. 13. Of Office. OFfice is a duty of attendance upon a charge. And therefore the grant of an office to an ignorant man that hath utterly no skill at all, is merely void. As if the king by his letters Patents make a Clerk of the 5. E. 4 Rot. 66. per Br. office 48. Crown in the King's Bench, which was never exercised in the Office, nor in any other Office there, & so utterly insufficient to serve the King and his people; the grant is void, and the justices may refuse him. So is the presentment of an unlearned man to a Church, merely voided. Likewise the Non feasance and the not attendance upon an 39: H. 6 31. office, hath a Condition in Law annexed to it. As if the Marshal suffer but one voluntarily to escape 〈◊〉 he prisoners, it is a forfeiture. But in negligent escapes what shall make a forfeiture of the office, and what not, both for the number of negligent escapes, and for the greatness and smallness of them (as if some that escape were committed unto him for surety of peace, & were suspicious men) lieth wholly in the discretion of the Court: & the King may himself ● H. 7. 29. have an office: as a forestship granted to one in tail, the remainder to the King, and 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. cap. 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 King's money, etc. or surety of the King's lands or customs, or any administration of necessary attendance in the King's Customhouse, or the keeping of the King's 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, etc. shall forfeit all his interest in the office or deputation, etc. And the buyer be a disabled person, to occupy or enjoy the same: And all bonds, etc. 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, etc. 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 King's bench, or Common place, or by any justices of Assize. CHAP. 14. Of Franchises. BEside the Hereditaments already handled (a) 15 E. 4. 7. 4 El Pl. 219. 6. F. 3 per 30 H. 8. Dy. 44. there be certain other derived from the King's 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, etc. For the greater drowns the less. A franchise is a royal privilege in the hands of a common person: so we call every subject: and is forfeited by misusing of it. As keeping Fair or market upon Monday 22 Ass pl. 34. when Wednesday is granted him: or keeping Fair upon two days when he 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, etc. 2 H. 7. 11. 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, & this latter found against him; yet he forfeiteth but that day only. Misusing 22. Ass. ibid. of any point, where there be many in one Franchise, is a forfeiture of them all. But not where the Franchises are several. But non user of a market, etc. is no forfeiture 2. H. 7. ibid. of it, as it is of the office of the Clerk of a Market, and such like, which of necessity must be used. Statutes. 27. H 8. cap. 24. No subject shall have authority to pardon any felony, or any Accessaries to felony, or any outlawry for such offences. Nor to make any justices of Eyre, Assize, Peace, Gaole-deliverie. All original Writs, inditements of Treason, Felony, and Trespass, and Process upon the same, shall be only in the King's name. And the Teste in his name that hath the Franchise. Every Writ and indictment whereby a thing is supposed to be done against the Peace, shall be supposed to be done against the King's peace only, and not against the peace of any subject. The King shall have all fines, issues, amerciaments, & forfeitures lost by any Officers of Franchises for non execution, or insufficient retornes of process, or for any misdemeanour concerning their office, with many provisoes in the same statute. The kinds of Franchises are diverse, & almost infinite. Of such sort are the liberty of having a Court of ones owne; of drawing causes out 9 H. 7. 11. of the King's Court into his own. In the first case we call it tenere placita, when he is to hold it before his bailif in such a place, and therein a man may prescribe. (In the other case we call it Conisance of plea: and that lieth not in prescription but in demand, and is always of Record) of returning Writs, etc. Also Warrens which a man 35. H. 2. 〈…〉. may have in another's 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, (a) 2. H 7. 11. 22. Ass pl. 34. Fairs, tolle (b) 9 H. 6. 45. of every buyer for things he buyeth there, not (c) 28. Ass pl. 53. being for his own expenses, For (d) 9 H. 6 45. neither shall the seller pay toll, but the buyer: neither shall a man pay toll for the things he bringeth to the Fair, but for the things he selleth. But by custom he may for every thing brought to the Fair, & for his standing also. and whatsoever liberties & commodities else that (created first by the king's special grant, or of their own nature belonging to him) are given to common persons to have any manner of estate in. CHAP. 15. Of Chattels: where, of Testaments. Such then is the nature of an hereditament in his sundry sorts and kinds. Chattels are possessions wherein there cannot be several estates. All once own Chattels real, as (a) 20. E 4. 9 a Lease for years, etc. and personal, as corn (b) Park. 99 growing upon land, but not trees, for they are parcel of the Freehold, etc. whether in possession, or that any is indebted to him in, but not those he is only to recover damages for, as in goods taken from him, or to be accounted for. (c) Neither c. 7. El. Pl. 290. 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. otherwise called his last Will: & the things devised are Legacies. Testament is an appointment of some person, whom we call an executor, to administer them for him after his death. For without naming Executors, or if they all 37. H 8. B. test. 20. refuse it, it is no Will at all: yet the legacies shall be paid in both cases, and the Testament annexed to the Letters of Administration. But is a good will of land though no Executor be named: for land is not Testamentary And Administration is it which makes an Executorship: That if one 3. N. 67. 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 (a) 19 El. Pl. 325 of these goods, nor (b) 17. H. 8. 22. 21. H. 7. 29. partition between them, etc. nor the husband which marrieth a wife that is an Executor, shall have those goods by intermarriage with her: neither shall the Executors forfeit them by outlawry. 10. E. 4. 1. Therefore Executors represent the person of the Testator. So as a villeine Executor may have an Action of Debt against Littlet. 41. his Lord, for debt due to the Testator. And (a) 21 H. 6 30. outlarie Excommengement, etc. is no dishablement (b) 42 E. 3. 13. to bring an action as Executor. (c) 48. E. 3. 14. And all of them are but one person: whereupon (d) 2. E. 3. Quid iuris clamat upon it is, That the release or Attornment of one is good for both: that in an Action (e) Till the Statute 9 E. 3. cap. 3. brought against them, as debt, covenant, and such like; one cannot answer without the other by course of the Common Law: and that they cannot have every one by himself, a several plea in abatement of the Writ, etc. 36. H. 6. 17. Yet their power, both for the time when, and the things which they shall administer, may well enough be divided. As a man 32. H. 8. B. exe. 155 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 another his Executor touching his goods in S. Statutes. 32. H. 8. cap 1. He that hath Lands, Tenements, or hereditaments in Soccage, and none holden by Knight-service, or Soccage in chief, may device all by his Will in writing, or give all by an Act executed in his life. So may he that hath land holden by Soccage in chief, & other holden of a common person by Soccage, & none holden by Knight service: saving to the king, primer seisin, relief, suing of the same out of the King's hands; fines for alienation, etc. & all other duties for the Soccage in chief, as before hath been accustomed. He that hath land, etc. holden by Knight service (whether he have other lands held 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, etc. and fines for alienation. He that hath lands, etc. 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 Soccage, may device by Will, or give by any Act executed in his life, two parts of that holden by knight service, and all the Soccage: Saving to the Lord of the land holden by Knight Service, the Wardship of a full third part thereof, without any charge, dower, etc. 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 devices or other acts only of lands in fee simple. And if the party that maketh the Will or other Act, be seized in Coparcenarie, or in Common, it shall be good for so much as in himself of right is. The wardship, relief, primer seisin, etc. 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 xxj years of age, Idiot, or non sane memory, 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 their 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 damages in like manner as he whose executor he is should have done if he had lived, The Executors must prove (a) 21. E. 4. 24. or make probate of the Will (to be a true one) in the Spiritual Court, and be (b) 21. El. Pl. 54● sworn to see it performed. If many Executors be made, and one refuse; yet he may administer at his pleasure, 21. E. 4. 23. and the other must name him in every Action for any duty due unto the Testator, and his release shall be a bar 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, for there 36. H 69. the Testator dieth intestate. But an Executor once administering, As 9 E. 4. 47. if he cell land in use, appoints by the will to be sold, and the money to be disposed, etc. can never refuse after. Executors must answer all certain duties of the Testators, But not for (a) 11. H. 4 46. a trespass done by him, burning of a Writing bailed unto him by Deed indented; receipt (c) F N. B. 117. ●. 2. H. 6. 12. of rents, or occupation of other men's lands, as Bailife, having sufficient of his Chattels which we call assets entermaines, to do it. And therefore shall be charged of their own goods, if they waste the Testators. But so, as duties that grow by speciality 11. H. 7. 1● are to be answered before other duties, and legacies to be last of all delivered: without 21. E. 4. 21. which delivery, the devisee can neither enter (d) 20. E. 4 9 into a Term, nor take (e) 2 E. 4. 30. 37. H. 6. 30. a chattel personal devised to him. But upon a lease devised for xx: years to one for the fi●h x. years, the remainder or remnant of the term to another: or devised to one for 20. El. Pl. 519. so many years as he shall live, the remainder to another: a delivery to the first Devisee serveth for him in the remainder also. 21. El. Pl. 539. 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 itself. 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 devices the Testators intent (standing with the rules of Law) shall be taken. As where a man deviseth Lands 1●. H. 7. 13. (divisible by Custom) to his son and heir after his wife's death; the wife hath an estate during her life, by implication, in the intent of the devise. A devise to one 27. H. 8. 27. and his heirs males, is an estate tail. But 29. H. 8 Dy. 33. a devise to I. S. in fee, upon condition, if he pay not to I. D. a certain sum of money, than 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 19 El. Dy. 357. an estate for life, the remainder for life to B the remainder to Alice in fee. So as the husband of Alice (if she die in the life of B) cannot be Tenant by Courtesy. The Executor of an Executor, is Executor 10. E. 2. Ex●c. 110. to the first Testator, and may have an Action of Debt for the arrearages of an Annuity due unto him. Statutes. 25. E. 3. Cap. 5. Statut. 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 7. El. Pl. 277. possessions. For he which had the charge of his Soul in his life, is presumed the fittest person to have the care of disposing his goods in pios usus after his death. And therefore the Ordinary may seize the goods and must keep them without wasting, & may give, alien, or sell them at his will, and dispose the money coming thereof ad pios usus. And if he do not so he breaketh the confidence which the law reposeth in him. But yet this gift or alienanation remaineth good by law. Howbeit being a spiritual governor he shall not be subject to temporal suits, nor have any Action of debt or otherwise for any thing due to or by the intestate. 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 Ordinary, s 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 diverse persons next of the blood (which in deed are in equality of degree with the intestate) claim administration, or where one only claimeth it as next of the blood (where in truth diverse are in equality of kindred, 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 Magna Chart. Cap. 18. is, That the King's debts shall be levied of the dead man's goods, and the surplusage delivered to the Executors Saluis pueris, & uxori rationabilibus partibus, which proveth that this rationabile parte was at the Common law. But (a) Magn. Charta cap. 28. 16. etc. v● in F. N. B 122. l. ● Br. ration part. 6. whether any Will be made or not, 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 (b) 3. E. 3. d●t. 156 sufficient advancement) shall have a part to their own use; that is to say, 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. 16. Of Chattels real. CHattels, are Real, or Personal. Real; as terms for years, and wardships, whereof we have spoken before. CHAP. 17. Of Chattels Personal. PErsonall as Plate, jewels, Silver, Gold, Implements of household, Cattles, and all goods and movables whatsoever, Corn sown upon the ground etc. For that is divisible by will, shall be forfeited in outlary of Park. 99 5. H. 7. 10. Debt or Trespass. The ownership of a chattel personal, is termed a property, which of wild beasts 3. H 6. 55. 12. H. 8. 3. 18. H. 8 2 For soul of Warrein. both Fowls of the Air, Fishes in the Sea, Beasts upon the Earth, and generally all Fowl of Warrein, Feasants, Patridges, Dear, Coneys, Hares, and such like cannot be in any, and therefore it is no felony 12 H 8. 3. 18 H. 8. 2. 3 H. 6 55. to steal them: and a writ of Trespass shall be Quare warrenam suam intravit & mille lepores cepit, without saying suos, Nor after they are made tame, longer than they remain in ones possession. As my tame 12. H. 8. 3. 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 Forest, and the Forester maketh fresh suit: 12. H. 8. 11. these all remain in my possession, and the property is in me: but if they stray, it is 12. H. 8. 3. & 11. lawful for any man to take them. Otherwise 18. H. 8. 2 it is of Hens, Capons, Geese, Ducks, Peacocks, etc. Prerogative. Treasure hid in (a) Stamf. 10. the earth, not upon the Earth, nor in the Sea, and (b) 27 Ass. pl. 19 coin though not hidden, being found (c) 10. El Pl. 322 is the Kings: we call it Treasure-trove. Cattles also that stray into another's (d) 14 H 6. 5. land are the kings after a year and a day, (e) 31 E. 3 estrar. 4 if being proclaimed at the Market in two (f) Br. Estray. 10. several towns next adjoining the owner (g) 33. H. 8. Br. Estray. 4. 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, & Proclamation made, he hath no property. And therefore the possession of the second Lord is good against him. Goods wrecked are also his. Stamf. prer. 37. & D 〈…〉 B wrecks 3 that this was at the Common law. Statutes. West. 1. c. 4 Where a man, dog, or cat escape alive out of ships, it shallbe no wreck. But the things shall be prised 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. The King being Tenant in Common of an entire Chattel personal, shall have 10. El. Pl. 322. the whole. As if an obligation be made to two, or two possessed of a horse, and one is attainted, the King shall have the whole duty of the Obligation, and the horse. Goods that belong to an Alien enemy, (a) 7. E 4. 13. 38. H 8. Br. devisen 10. 8. 16. 20. any body may seize to his own use. But an Alien borne in amity may have property in goods, and buy and cell, & their bargains good: and may also bring personal Actions. The taking of goods by an Alien enemy 7. E. 4. 13: in battle, devesteth the property from the owner▪ if he come not before Sun set to claim them. Churchwardens are inhabled to have 12. H. 7. 27. goods to the behoof of the Parish. For they are charged to found diverse things belonging to the Church, as ornaments, and such like: And therefore in reason they should be inhabled to purchase goods. And thereto extendeth their Corporation. And all the Church goods, as (a) 8. E. 4. 6. books & ornaments, (b) 11. H. 4. 12. bells hung up in the Church, are theirs, and (c) 11. H. 4. 12. they may have an appeal of robbery of them, or a (d) 8. E. 4. 6. trespass, and count, to the damage of the parishioners. But they cannot give or release them, for 13. H. 7. 10. that is to the disadvantage of the Church. (f) 8. E. 4. 6. And if they do, the Parish may choose new Churchwardens, who shall have an Action of account against them. (g) 12. H. 7. 27. But churchwardens are not inhabled to take a feoffement, a lease for life, or perhaps for years, or such other things as have continuance. CHAP. 18. Of Baylement and Contracts. TO Chattels personels, Bailement, and Contracts do belong; Baylement 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 Baylement or pledge. A simple Baylement, when he receiveth them to keep for another: whether it be 5. H. 7. 18. for the Baylor to redeliver him again: in which case the Bailor may retake them without request: or for a stranger to bail 1. E. 5. 2. them over to him. In which case, before such bailing over, the Bailor may countermand the Bailement, and command the Bailee to deliver them him again, & shall have an account upon refusal. For in neither of these cases the property is out of the Baylor. A pledge is when he receiveth them in 5. H. 7. 1. assurance for another thing had of him at the time. As to take a chain of gold for money then delivered, etc. 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 hath the pledge shall not be attached by it, in as much as he is not owner. The baylement of goods to employ, is, when the Bailee hath the things themselves to use to another's profit. As to cell meliori modo quo poterit, etc. Where, if he sell that for xii. l. which is worth 1000 l. and refuse a better prize, 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 cell 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 man's goods in open market (we call it market overt) without Covine or notice whose they are, altereth the property if tolle be paid for it. Hither belong certain (as it were) contracts in Low, though not arising from the special agreement of the parties. As he that findeth another's 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 entereth into land of his own head, and receiveth the profits of it, or parents that occupieth land purchased by an infant, are chargeable as Bailifeses. And if a Liberate be delivered to the Clerk of the Hamper, who hath assets in his hands, an Action of Debt lieth against him. So doth it upon every judgement. CHAP. 19 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 damages are uncertain; but of debt or damage recovered in certain, it is otherwise, unless it be joined 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 the realty, annuity, etc. they lie not in arbitrement or concord. Accord, is an agreement between the parties themselves: not by meditation of friends; for than it is an Arbitrement upon a satisfaction executed: As for one 15. H. 6. accord. 1. at his own cost to agreed, I S. and another, whom I. S. hath trespassed; this may be a satisfaction to I. S. Otherwise it is, if he do but endeavour to agreed to them. And this satisfaction must be executed: for a tender (a) 17 E. 4. 8. of money without payment, or an (b) 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. Arbitrement is an award of satisfaction (c) 16. E. 4. 9 by others whom they choose to judge between them, As to arbitrate because A. 19 H. 6. 36. (one of the parties) hath done a greater trespass to B. (the other party) than B. hath to 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 damages) aught in that respect to be a determination of things awarded. where the award of a personal Chattel altereth the property thereof. So as he may have a detinue (a) 2. El. Dy. 183. for it, or debt if it be of money, or such like, to he paid for (b) 16. E. 4. 9 a debt due, or (c) 19 H. 6. 38. amendss of a Trespass. And therein an Arbitrement differeth from an Accord. But an award of an acre of land, etc. is not good unless the acre be delivered. Et iam prima mei pars ex exacta laboris. The third book of Law. CHAP. 1. Of a wrong without force. FOr of possessions (the first & hardest part of Law) we have hitherto spoken sufficiently. The other resteth, which ministereth justice in the punishment of offences. An offence is the doing of any wrong. And is a wrong without force, or to the which force is coupled. In those of the first kind, the offendor is to be amerced, or to pay a petty sum of money to the King. And (a) 38. E. 3. 31. 9 H. c. 2. if he be a lord of the Parliament (whom we call a Pier of the Realm) than a C. s. As if (b) 38. E. 3. ibid. once writ abate, or if in (c) 9 H. 6. ibid. an Action of Trespass against two, for hunting and taking two Dear, one Defendant be found not guilty, the other guilty of taking only one Dear; 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 as all; the other hundred shillings against him that was acquitted of one of the Dear. The King's 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. 2. Of Trespasses upon the Case. Offence without force, are trespasses upon the Case, or Real wrongs. Trespass upon the case is such an offence, whereby any thing is indammaged: And is a misuser or deceit. Misuser, when by mere wrong it is indammaged. Of which kind there be many, and those of diverse sorts. As if a man maliciously utter any false slander to the endangering of one, in Law. As to say, He hath reported that money is fallen; for he 9 El. Vttings case. shall be punished for such a report, if it be false. The touching of him with some heinous crime, as that he hath gone about to Sir Th. Cokains case. get poison to kill the child that such a woman goeth with (yet it is no felony;) lain (a) So it hath been adjudged in wait to rob him; procured (b) 26. El. Cracknel. 5. c. another, or agreed (c) 33. El. Cebot against Haines adjudged. with another to murder him (though he were not murdered in Deed;) (a) 27 El Hacks c. sought his life for his land, etc. or the impairing his trade of life; As to call a merchant (b) 27. El. Bartons case. bankrupt (for it is his living, but so it is not of a gentleman;) an attorney (c) 26. El. Ambidexter, or to say that he dealeth (d) 27. El. Burc. c. corruptly. But in all such cases, words of choler and heat, as to call one cozener, (e) All th●se 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, pillorie-knave, villeine (unless he say villeine to such a man, or regardant to such a manor;) words uttered in a suit in 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 justify the words, for than (g) 7. El. Dy. 236. it is not falsely. As that he called him perjured, by reason of a perjury committed in the Star-chamber, murderer, thief, or such like, upon a Conviction; (f) 31 El Nowel's case but not upon an indictment or Common voice and fame, though the defendant himself suspect him. if one having another man's goods, (h) It hath been oftentimes adjudged, that in such cases the conversion is traversible. convert them to his own use: if a (i) 7. H 6. 5. & 17. El. in Mans●rs c. 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 (k) 48. E. 3. 6. cloy my horse: but not if he take him to cure (without warranting of him) and doing all he can, yet the horse impair. If being committed to the F. N. B. 93. H. Gaol, the Gaolet of malice put upon me so many irons, or otherwise use me so hardly that I become lame thereby, etc. Statutes. Westm 1. cap. 33. He that publisheth any false news and tales, whereby discord, or occasion of discord and slander 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. cap. 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. Ric. 2. cap. 11. In the case of these former Statutes, if the party cannot bring forth him that spoke the same, he shall be punished by the advice of the Counsel. But two above the rest do here require more special consideration; that is to say, Disturbance, and Nuisance. 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 watercourse that is misturned, to present unto a Church, etc. Nuisance is annoyance done to ones hereditament. F N. B. 184. a F. N. B. 184. d. As levying a Fair or market to the Nuisance of another Fair or Market, building a house so near mine, that the rain which falleth from that house falleth upon mine, etc. All manner of nuisances are to be removed, and common nuisances, As a wall, (a) 33. H 6. 26. etc. built upon the Highway, trees (b) 42. Ass pl. 5. growing upon the river bank, whereby a watercourse is stopped, any man may pull down. Deceit, when the damage groweth by F. N B. in his writ of Deceit. 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 Attornie in a plea of land against finee) make default, whereby the land is lost: Or if in a Praecipe against diverse Tenants, a man purchaseth a protection for one of them, supposing him to be beyond-sea in the King's service, where indeed he is and 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 in deed he was not, whereby he looseth the land: or if in play one win another's money with false dices, or if he that felleth 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 (a) 5. 7. 41. after, (at another place) or (b) 11. E. 4. 6. a servant make the warranty upon the sale of his master's goods (which in law is the master's sale, & warranty of the servant) it is a voided 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 ma● be discerned by my five senses to be otherwise; as of murry colour to be blue, unless the buyer in this case be blind. But where they are warranted to be of such a length, & are not, there an action of deceit lieth: for that cannot be discerned by sight, but by a colaterall proof, the measuring of them. CHAP. 3. Of certain offences punishable by amercement by the K. Prerogative. CEertaine offences against the law, are in nature of trespasses upon the case, and by the king's prerogative punishable like to them. As suing an action without just cause, or giving just cause of an Action: for (a) So are all th● precedents. in every action where the matter passeth against the plaintiff (be it by verdict, demurrer, or otherwise) the plaintiff is to be amerced, & the def. in det, detenue, covenant, replevin, Quid iuris clamat, etc. (b) 11. H. 4 45. but not in trespass, for there he shall be fined & imprisoned. Nonsuit (c) 22. Ass pl. 32. in an action, (d) 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 (f) 10 E 4 Br. amerciament 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. 4. Of Discontinuance. HItherto of Trespasses upon the Case. A real wrong is that which meddleth with the Freehold otherwise than it aught: and is a Discontinuance, or Ouster. Discontinuance, when he that hath an estate Taile, or Fee-simple in another's right, As the husband in right of his wife. A Deau sole seized in the right of his deanery: Deane and Chapter, Garden, and Chapleines; as also Mayor, 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 feoffement 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 Grauntor 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 jointly with his wife, shall be perfectly good. This extendeth not to Leases of land in the hands of any farmer, by virtue of any old Lease, unless the same be expired surrendered or ended within a year after the making of a new; nor to the grant of any reversion, nor to any lease of land which hath not most commonly been let, or occupied in farm by the space of xx. year's next before, nor to any lease made without impeachment of Waste, or made for above xx. years, or three lives from the day of making. And that there be reserved yearly payable to the lessours, 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. Eliz Cap. 10. All grants, Feoffements, Leases, and other conveyances and estates, by any Master or Fellows of a College, Deane and Chapter, Master or Garden of an Hospital, Parson, Vicar, etc. other than for xxj years, or three lives, from the time of such lease or grant, reserving the accustomable yearly rent, yearly payable, shall be voided. 14. Eliz Cap. 11. The Statute 13. Eliz. Cap. 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 rend 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. Eliz. Cap. 11. All leases made by such persons (as 13. Eliz. Cap. 10. before) where another lease for years is in being, not to be expired, surrendered, or ended within three year's next after the making of such new lease shall be voided. All bonds & covenants for renewing or making of any lease, contrary hereunto, or to 13. Eiz. Cap. 10. before, shall be voided. 1. Eliz. not printed, the like (as 13. Eliz. Cap. 10. before) for Archbishops and Bishops, unless it be of estates made to the King, his heirs and successors. 32. H. 8: cap. 28. Not fine, feoffement, 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 aught to have such estate, maketh a discontinuance. As if tenant in Tail of an Aduowson in gross, suffer an usurpation by six months, the release of a collateral ancestor with 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 Taile. 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 entry 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 Lit 152. (in by descent) make a lease for life to I. S. the remainder for life or in fee to the disseisee, if Tenant in Taile discontinue, & then 11. E. 4. 1. disseise the discontinue, & die seized, whereby the lands descends to his issue; if the husband make a feoffement in fee of land in 21. E. 3. 26. the right of his wife, and take 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 heir of the Discontinue were within age at the time of the descent to the Issue in tail, yet his entry is gone for eve, r by reason the Issue is remitted. CHAP. 5. Of Intrusion, Abatement, Disseisin, and usurpation. OVster is, when the Freeholder is ousted, or put out. And therefore it gaineth a unto the party. This ouster is of a freeholder in Deed, or in Law. Of the first sort are Intrusion, or Abatement. Intrusion, which is after the death of Old Nat. Br. 135. Tenant for life, be it a man's own life, or another man's, Tenant in Dower, or by courtesy, etc. Abatement, which is after the death of 5 H. 7. 6. one that hath the Inheritance, whether the land descend unto his heir, or he die without heir. Of the second sort are, Disseisin & usurpation Disseisin is the ousting of him that hath Lit. 62. a in Deed: which of a rent or other profit is by the disturbing of him in the means of coming to it. As in every Lit. 52: Rent, whether Rent-seruice, Rent-charge, or Rent-secke. Encloser and Forestaller. Encloser is, when the Tenant encloseth the Land, so as he cannot come to distrein, or to demand it. But if it be a Park or such 99 E. 3. 15. like, that hath of ancient time been enclosed, so as it is not done of purpose to keep him from his rent, that is no disseisin. Forestaller is, when the Tenant besetteth the way with force and 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-seruice and rent-charge, Rescuous, and Replevin. Rescuous, when either the party having distreyved; 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. Usurpation 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 doth it. Therefore at the Common law, in a Quare impedit, Plenartie 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 Westminst. 2. Cap. 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 certify 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 Clerk, 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 Spiritual Body politic, 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. Cap. 5. Usurpation upon Gardens tenants in Dower, or upon femes covert, or houses of religion in time of vacation, shall not put the heirs fems, or houses of religion out of possession. But faint recoveries shall not be avoided in such cases by way of plea. plenarty is no plea in a Quare impedit, or darreine presentment, if the Writ be purchased within uj months. When one parcener presents in another's turn, yet this gaineth no possession: for the other may present when her turn cometh again. CHAP. 6. Of Trespasses in goods. Such is the nature of an offence without force. An offence with force is a Trespass (or offence) against the Crown. For in all Inditements and Inquisitions, Stat. 37. H. 8. ca 8. reciteth the Common law to be so. of treason, murder, felony, trespass, etc. 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 Lessee for years, against the Lessor, (though he distrain without cause) for that the Statute of Marlebridge, cap. 4, is, That he shall not be punished by fine and ransom; which if he be attainted in this action, he must needs be, and for this the party must be imprisoned till he do compound. Therefore after tender of 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, etc. 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. 7. Of Trespass in Land. Trespass in land is, when the trespass is done upon an actual possession thereof. For of a trespass done (a) 11. H. 7. 22. after the death of the Ancestor, and before the heir's entry: after (b) 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 void if the rent be not paid: or after Michaelmas, and 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. Because they were Park 4. not seized 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 merely voided, and the Lessee in the last case, might before Michaelmas grant away his term. Where beasts or any other Chattels, shocks of Corn, or whatsoever else, whether 21. H. 7. 39 Conisance may be of them to bring a Replevin, or not: that so the Trespass may be distreyned by him that hath damage by it. As one that hath Common 15. H. 7. 13. out of land, though he have nothing in the land itself, 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, etc. yet he may distrein them damage pheasant, because of the damage 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 mere stranger. And if a stranger of his own head drive out beasts that are damage pheasant, the owner of the beasts shall punish him, for he is indammaged by this driving out, and the other hath no loss. Hither belongeth Ejectment, when a F. N. B. 220. f. 1. H. 6. 1. 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 tronsitorie and removable: 1. H. 7. 19 the King may be put out of his possession, and have his Action according, as ravishment of guard, Quare impedit, etc. But of things permanent he cannot have an Action, as a Praecipe quod reddat, ejectment of ward, etc. because of such things he cannot be put out of possession: the King having possession by matter of Record, or Stamf. prer. 74. other good title, none can put him out. But 8 H. 4 16. ꝑ Stanf. prer. 57 if having no title by matter of Record, or otherwise, he enter upon me & put me out, there if I enter again, my entry is lawful, and no intrusion. So if the king seize upon an office, finding that his tenant died seized but of an estate for life, the reversion to another; he in the reversion may enter, and make a feoffement: for the King seizeth by colour of a Record, which Record giveth him no title indeed. CHAP. 8. Of Menaces. TRespasses to the person are with pretence of violence, or violence indeed. Pretence of violence, as Menaces & Assaults. Menaces are threatening words of beating one, or such like, through fear (a) 18. E. 4. 28. whereof one's business is foreslowed. For (b) 7. E. 4. 24. a menace only (without other loss) maketh not the Trespass, but both of them together. CHAP. 9 Of Assault. ASsault is an unlawful setting upon one's person. As offering to (c) 40. E. 3 40. beat one, though he do not beat one in deed, striking (d) 22. ass. pl 60. at one with an Hatchet, or such like, though he do not touch him. Whether belongeth lying in wait, besetting his mansion Book of Entries fol. 552. house, and not suffering his servants to go in and out, etc. CHAP. 10. Of false Imprisonment. VIolence indeed, is false imprisonment, or bodily hurt. False imprisonment is an unlawful restraint of liberty. As (a) 22. ass. pl. 85. arresting one against his will, though it be in the High-streete, and he never put in prison in any house; detaining of a woman (b) 43. E. 3. 20. against her will, whom he hath ravished. So if a (c) 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 & feigned suit, as in suing (d) 43. E. 3. 33. 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. 11. 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, I may lay my hands upon him, and 9 E. 4. 28. disturb him, and (if he will not leave) I may beat him, rather than he shall carry them away, for that is no wrongful beating. CHAP. 18. Of Maim. Maim is the wrongful spoiling of a member defensive in fight. As cutting of one's finger, knocking (b) 8. H. 4. 31. Corone 458. out ones foretooth, (c) Brit. & Bract. ꝑ Stamf. 38. b. putting (a) 28. E 3. 94. out his eye, etc. Otherwise it is of knocking out his grinding teeth, cutting of one's ear, nose, etc. for these are but deformities. CHAP. 13. Of Rape. THese are outward violences only: Rape is the carnal abusing of a (d) 9 E. 4. 26. woman against her william. But if the woman conceive upon any (e) Brit. per Stamf. 24. carnal abusing of her, that is no rape, for she cannot conceive unless she consent. Statutes. 6. R. 2. ca 6. If the woman after rape, consent, as well she as the ravisher be disabled to have any heritage, dower, or joint-feofment after the death of their husbands and Ancestors, and the next of blood shall have title to enter incontinently. CHAP. 14. Of Contempts. Certain offences against the King are in the nature of trespasses, and are termed contempts: as (a) 38. H. 39 making rescous upon his Writ served, (b) 24. E. 3. 3. going armed in his palace, etc. where sometime the punishment is increased according to the quality of the offence, not only in the fine, but further, in the loss of member, and such like. As a juror 36. H. 6. 27. 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 (d) 41. E. 3. Coron. 280. in Westminster Hall, or a juror in the presence of the justices, shall have his right hand cut off, his land and (e) 19 E. 3. judgement 174. chattels forfeited, and in the latter case be committed to perpetual prison. CHAP. 15. 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, etc. whether for life (a) Stamf. 186 b. & 190 only, or of (b) 22. ass. pl 4 in high Treason. an estate of inheritance, & chattels, not only in possession, (c) 29. Ass pl. 63. but such as he hath but a right to, As lands (d) 6. H. 7. 9 whereof he is disseised, debts, (e) 29 ass ibid. goods (f) 50 ass pl. 5. to be accounted for, or wrongfully (g) 29. Ass pl ibid. taken; But (h) 29. Ass. ibid. not such as he is to recover but damages for, as in battery, etc. 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 (i) chap. 16. afterwards. Hereditaments (k) 30. H. 65. from the time of the offence, (whether the attainder be by outlawry, verdict, or howsoever else) Chattels, though real, (l) 5. Mar. as a lease for years, etc. from (m) 8. E. 4. 4. the time of the attainder only. So (n) 8. E. 4. ibid. as a sale or gift before, is good, for he must live of them. And therefore after indictment, and before attainder, the goods shall 7. H. 4. 47. Br forf. de terr. 10. 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 (o) 5. H. 4. forf. 32. indictment of fugam fecit, or (p) 3 E. 3 corone 347. if one be taken with the manner, upon a robbery, or (q) 22. ass pl. 8. ●. tarry the exigent, etc. the Town is chargeable with the goods, and therefore (r) 22. ass. ibid. may seize them wheresoever they be. Statutes. 31. E. 3. cap. 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 show that another is chargeable. 1. Ric. 3. cap. 3. No Sheriff, Vnder-shetife, or escheator, Bailife of Franchises, nor any other person, take or seize 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. So as 37. H. 8. Br. d●n. 42 22. H. 6. 38. a remainder to his right heir, can never take effect. The eldest son attainted of felony in his father's life time, and him surviving, or his issue (a) 32. H. 8. Dy. 48 (if he die before) cannot inherit: and beside, shall be an impediment, that the younger brother cannot, (b) 22 H 6 ibid. but it shall go to the Lord by escheat. Otherwise (c) 32 H 8 Dy. ib. it is if the eldest son die without issue in his father's life time. Lastly, the wife looseth (d) Lit. 169 her dower, And notwithstanding (e) 3 & 4 Ph. & Mar. Dy. 140. the husband alien the same before the offence committed. Statutes. 1. E. 6. cap. 12. No dower shall be forfeit, by the husband's attainder, of any murder, or felony whatsoever. Prerogative. Those that fly for fear of the offence 3. E. 3 corone 209. 3. E. 3. corone 289. 5. H. 4. forf 32. (we call it a Fugam fecit) forfeit their thattels Accessaries after the fact, that is to say witting maintainers (and (f) 12. E. 3. corone 377. 14. E. 2. ꝑ 19 El. Dy. 355. if it be of one outlawed in the same County, though they have no other notice of it) as by (g) 8. E. 3 cor. 427. receiving one that flieth for it into his house, and shutting the door, so as the Country thinking him to be there, he escape whilst no man followeth him; aiding (b) 26 ass pl. 47. him with money, but not with good words, as wholesome advice speaking or writing for his delivery, And therefore also that suffer (i) Stamf. 35. h. one arrested whether by themselves or any other to escape which (k) 9 H 4. 1. we call a voluntary escape, are guilty of (l) Stamf. 22. i the same offence. Prerogative. Concealing the offence, without discovering it unto the king, or his Council, or to some Magistrate, is called misprision, and that forfeiteth (a) chattels, and hereditaments during their life. CHAP. 16. Of Felony. Offence against the Crown be of two sorts, Felony, and High-treason. Felony is an offence of the Crown not bend immediately against the State, where the forfeiture of the offender's (b) 27. E. 3. Escheat 17. inheritance is given to the Lord (whether it be in petty (c) 22. ass. pl. 49. Treason, or other Felony, and (d) Stamf. 198. a. at any time after he is attainted; And therefore the Lord may have a writ of Escheat before execution. But (e) Stamf. 190. ●. of lands (whereof one is seized in the right of his wife) the King shall have the issues during the husband's life. Prerogative. The King, both (f) Stamf. 190. a. here, and wheresoever (g) Stamf. 190. ●. the offendor was dispunishable of waist (as if he were seized of land in the right of his wife) is utterly to waste the inheritance, by rooting up the houses & trees, ploughing up the meadows, digging up the land, etc. And this is in detestation of the offence. Statutes. Magn. Charta, cap. 22. The King shall have the land by a year and a day, & then tender it to the Lord of the fee. Prerogative, cap. 15. giveth the king the profits by a year and a day, and moreover the wasting of it. CHAP. 17. Of Stealth. Felony is a bore Felony, or petty treason. Bore Felony is a Felony of the lowest nature, and is punishable by Stamf. 182. hanging. This is simple, or mixed. Simple, as stealth, and manslaughter. Stealth is the wrongful taking of goods without pretence of title. And therefore altereth not the property, as a trespass 4. H. 7. 5. doth, so as upon an appeal the party shall re-have them. Statutes. 21. H. 8. cap. 7. (made perpetual, 5. Eliz. cap. 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-kéepers must answer for goods 22. H. 6. 21. of their guests stolen: 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 stranger (whom he knoweth not) to lodge with him in the chamber, and the stranger rob him, the Innkeeper shall not be charged. Otherwise it is, if he be lodged there by the Innkeeper. Prerogative. Goods confisked; that is to say, which (a) 3. E. 3 corone 371. the thief, attainted for stealing another thing, for if it be for stealing the same goods they are said to be forfeit, and not (b) 3. 3. 3. coron. 355 confisked, disclaimeth to have any property, in and waifes; that is to say, which a (c) 12. E. 45. thief (but not one that committeth a trespass) waiveth; are the Kings, if he (whether any officer of his, or the Lord of the (d) 21. E. 4. 16. Franchise, seize them before the party from whom they were stolen. But if the party from whom they were stolen seize them first, (though it be not in xx years after they be stolen) or doing his diligence to apprehended the thief, which is called fresh 21. E. 4. ibid. 7. H. 4 43. suit; whither the thief be taken at his suit or not, convict him afterwards upon an Appeal; he shall have his goods again. Statutes. 21. H. 8. cap. 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. The stealing of goods which exceed not the value of xii. b (called petty larceny) 27. H. 8. 22. is a felony (for a man may justify the calling of one thief for such an offence) that doth only forfeit his Chattels. CHAP. 18. Of Manslaughter. Manslaughter is the kill of any person (a) Stamf. 21. c. borne into the world, though he be not baptised. But (b) Stamf ibid. ● ass. pl. 2. to kill an infant in venture sa mere, is no felony. Statutes, 21. E. 1. Stat. de male fac⃛ 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, (c) 3. E. 3. Corone 303. poison (d) Stamf. 21. d. given him, etc. it is no felony in him that did the Act: but this death shall be accounted a natural death. The kill of one by (e) 2. H. 4. 18. chance (which we call by misfortune, or misadventure) in the doing a lawful act. But not if A. B. be (f) Stamf. 16. c. fight and C. coming between to part them, be slain by either of them both without any ill intent, for that is felony at the lest if not murder, in him that killeth C. because the thing which they were doing was unlawful, or in his own defence, which we call Se defendendo, flying (g) 4. H. 7. 2. as fare as he may to save his life, for otherwise (h) 43 ass pl. 31. it is felony, though the other pursue him, doth only forfeit his chattels, and he must have a charter of pardon. Statutes. Gloucest. cap. 9 He that killeth a man by misadventure, or se defendendo, must put himself upon the country, and if he be found to have done it so, the King if he please may pardon him. Marlb. cap. 25. To kill a man by misadventure shall be no murder. But the kill of one that attempteth to rob him (whether (e) 26. ass pl. 32. upon the Highway, or (f) 26. ass pl. 23. when men come to his house, & compass it about to burn it (though they do not burn it) whereupon he issueth out & killeth one of them, is neither felony, nor causeth any forfeiture at all. Prerogative. Any unreasonable thing killing a man: (a) 8. E. 2. Corone 389. As the wheel of a mill, when one falleth from the bridge into the water, and is carried by the violence of it under the outward (b) 3 E. 3 coron. 140. wheel; the task of Corn that a man falleth from, and so receiveth his death: it, and every thing moving with, it is forfeit to the King. As if a man being upon a Cart (c) 8. E. 2. cor. 397 carrying Faggots, 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 itself, are forfeit. And these are called Deodands. CHAP. 19 Of Chance-Medlie. Manslaughter is Chance-medlie, or murder. Chance-medley is manslaughter without former malice. As if 1. Mar. Pl. 100 certain set upon one to kill him, and I. S. having no malice against him, & being in the company, and seeing them combating, take part suddenly, and together with the rest smite him that he die, this is Chance-medlie in I. S. CHAP. 20. Of Murder. MVrder is Manslaughter upon 18. El. Pl. 474. former malice: which we call prepensed malice. As if one to kill his Wife, give her (lying sick) poison in a roasted apple: and 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 poison; this is murder though the wife recover: for the poison ministered upon malice prepenced, to one (which by a contingency procureth the death of another, whom he meant not to kill, nor bore any malice to) shall be as great an offence, as if it had taken the effect which he meant, proceeding from a naughty and malicious intent. Felony de se, That is, he that murdereth 3. El. Pl. 258. himself, doth only forfeit his Chattels, But not his lands; neither doth it work corruption of blood, nor looseth the wife's dower, because it is no attainder indeed: But his Chattels he dotb forfeit, real and personal goods, debts, etc. 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 jointly 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 King's title is from the casting of himself into the water, which was before the wife had any title by suruivor. 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. CHAP. 21. Of Robbery. Mixed, is that kind of bore Felony which riseth from the former. Whereof there be two sorts, Robbery, and Burglary. Robbery, is stealth from ones person by assault in the highway. But if either nothing (a) 9 E. 4 2●. be taken, though he command him to deliver his purse or money, or money taken, but (b) 5. El. Dy. 224. without putting the person in fear by assault and violence (as where one is indicted Quod vi & armis, apud B. in via regia ibidem xl. s. de pecunijs numeratis, etc. felonice cepit de persona I S.) it is no Robbery. And therefore in this latter case he may have his Clergy at this day. CHAP. 22. Of Burglary. BVrglary is the night-breaking of an house, with an (a) 1. E. 6 Br. Corone 179. intent to steal or kill; though none be killed, nor any thing stolen. And so it is of a (b) 1. E. 6. ibid. stable, parcel of a house, but (c) 13. H. 4. 7. not of breaking once 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. (d) Stamf. 30. b. CHAP. 23. Of petty Treason, properly so called. ANd of bore Felonies so much shall suffice. Petty Treason is a Felony, (e) 1. E. 3. 24. For where one is arraigned for falsifying the King's seal, (which is a petty Treason) a Charter of pardon of all Felonies is a good plea. (f) 1. R 2 4. F. N. B. 269. b. of higher nature than bore Felony is; the punishment whereof is burning. This is against mortal creatures, or against God. Against mortal creatures, as Petty-treason (a) 22. ass pl. 49. 21. E. 3. 17. Corone 477. (properly so called) and Sodomitry. Petty treason (properly so called) is the kill of any to whom private obedience (b) 12. ass pl. 30. 19 H. 6. 14. his master's wife. is due: as ones master, mistress, husband, etc. for which in stead of burning, (c) 1. R. 3. 4. (which the woman here shall be) a man (d) 12 ass pl. 30. 1. R. 3. 4▪ shall be hanged and drawn. (e) 21. E. 3. ibid. 19 H. 6. ibid. CHAP. 24. Of Sodomitry. Sodomitry is a carnal copulation against nature, to wit, of man or woman F. N. B 269. b. they shall be burnt, and that by the common Law. in the same Sex, or of either of them with beasts. CHAP. 25. Of Heresy. AGainst God, is that which immediately (f) Lect. Frowick. No Sanctuary lieth in case of Heresy, for it is treason against God. is bend against his Majesty, as Heresy, and Sorcery. Heresy is a presumptuous oppugning of an Article of Faith: whereof what it is, (g) F. N B. 269. b. Sorcerers, Sorceresses, and Heretics shall be burnt, and that by the Common Law F. N. B. 269 b. the Common-Law taketh no notice. But in case of Heresy, the party before he can be burnt, must be convict in a Provincial Synod; and after abjuration, make a relapse into the same or some other Heresy. CHAP. 26. Of Sorcery. Sorcery is a consulting with Devils, F. N. B. 269. b. 45. E. 3. 17. and containeth under it, Conjuring, Necromancy, and such like. CHAP. 27. Of Petty Treason, growing by Prerogative. HEre diverse offences are accounted (a) 26. ass pl 63. felony, in respect of the (b) 3. H. 7. 10. King's Prerogative, As to sergeant (c) 1. E. 3. 24. the King's coin, great seal, or Privy Seal; to acknowledge any foreign person to have any power within the Realm. As (d) 30. ass pl. 19 by pleading an Excommunication under the Pope's Bull. and are punishable as Petty Treason. CHAP. 28. Of High Treason. HIgh Treason followeth, which is an offence of the Crown, directly (e) 25. E. 3. cap. 2. maketh a declaration of all these to be high Treason. against the State. As in compassing the death of the King: For intending his death (without (f) 13. H. 8. 12. more) is Treason; otherwise it is in felony, except an act be done, or the Queen his wife, or of his son and heir, by levying war within the Realm, or adhering to his enemies: or them comforting, aiding, etc. and is punishable by drawing, 1. H. 7. 24. Stamf. 182. c. hanging and quartering, in a man, drawing and hanging in a woman. Statutes. 25. E. 3. de prodicionibus cap. 2. It is made high treason to kill the Chancellor, Treasurer, or 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 sergeant the king's money. To bring false coin into this Realm, sergeant according to the money of England (knowing the same money to be false) to merchandise, or make payment with it. To sergeant the King's great seal, or privy seal. 1. Mar. cap. 6. Seal manuel, privy Signet, or privy seal. Strange coin currant in this Rlalme. 1. & 2. Ph. & Mar. cap. 11. To bring wittingly false foreign coin hither, to the intent to utter it within the Realm. 1. Eliz. c. 11. To clip, wash, round, or file, any money of this Realm, or currant here: and causeth forfeiture of land for life only. But no dower shall be forfeited, nor blood corrupted. 18 Eliz. cap. 1. To Impair, Diminish, Falsify, Scale, or Lighten any money by any Art, ways or means whatsoever. 1. Eliz. cap. 1. Advisedly, maliciously, and directly, to affirm, set forth, and 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 foreign person, heretofore claimed or used in any of the Queen's dominions. So for any person compellable to take the Oath. To refuse (after lawful tender) the Oath to acknowledge the Queen supreme governor in all causes within her dominions. 13. Eliz. cap. 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, abet, or counsel any offendor to uphold him. To practise to absolve, persuade, or withdraw any person within the Queen's 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 Queen's Majesty, or her heirs of her body, be not right Kings and Queens of this Realm, or that any other person aught to be. Their abettors, procurers, counsellors, aydors, etc. To affirm by any writing, printing, deed, or Act: The first time, their abettors, etc. 33 H. 8. cap. 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, etc. 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. cap. 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 outlawed for high treason. An estate tail shall be forfeit for High-treason. The fourth book of LAW. CHAP. 1. Of Courts. THus we have gone through both the parts of 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 controversy before certain judges: who (in respect ot the place where they are set to do justice) 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, showed and defended, answered, debated and judged in the English tongue, & that they be entered and enrolled in Latin. Of all apparent faults proceeding from the Action, As in false Latin (a) 4. H. 6. 16. or default of form in the writ, insufficiency in (b) 5. E. 4. 7. an office or Indictment, misawarding of Process (as if of an exigent where no exigent lieth:) impossibility in the plea, as in (c) 7. H. 6. 5. account, supposing him to be his Receivor for seven years, and the defendant pleads, fully accounted such a day, which is the first of those seven years; The Court must take notice. To abate the Writ, award a Supersedias upon those offices, Inditements, or Process, to stay judgement if the defendants plea be found against him, etc. though the party except not to it. And 4 H. 6. 16. therefore although he that casteth an essoign cannot plead in abatement in the Writ, by way of plea; yet if it be a matter apparent to the Court, (as Henricus, etc. Dux Hiberniae, where it should be Dominus) he & every other stranger, as amicus curia, may. And the Court is bound to abate it ex officio, though the Tenant or defendant make default. Every Court hath power to award forth Precepts. And if the Precept be 14. H. 6. 20. in a Summons ad Warrantizandum. F. N. B. 73. in a Replevin. not served, another of the like nature shall go forth till it be served. Therefore the second Process 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 Officers. 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. As a good original Writ or precept ill entered in the 7. H. 6. 4●. roll. A Writ against A. and B. and the 44. E. 3. 18. whole Process continued against B. & C. not A. and B. a Scire facias out of a fine & 20. E. 47. parcel of the land omitted. Statutes. 14. E. 3. cap. 6. No Process shall be anulled 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 adiournement, errors, or otherwise, 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 outlawed. 8. H 6. cap. 12. No judgement or Record shall be reversed or anulled 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 Attorney, original Writ, or judicial Pannell, 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's judges of the Courts where the said Records and Process be certified by Writ of Error, or otherwise, shall examine the same by themselves and their Clerks, and amend therein (in affirmance of the first judgement) all that seemeth to them to be the Clerks misprision: Except Appeals, Inditements of Treason, and of Felonies, and the Outlawries of the same. And the substance of the proper names, syrnames, and additions, left out in original Writs of Exigend, and other Writs containing Proclamation. And if any Record, Process, Writ, Warrant of Attorney, Return, or Pannell, 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 allege 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 joined and entered, the same Court may amend all imperfections, defects, & wants of form, other than those 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 certify 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 44. E. 3. 3. no damages. For he returneth what they did. But upon a Capias returned Cepi corpus, he 44. E. 3 2. shall be amerced if he have it not there at the day. For the Writ is, Capias ita quod corpus eius habere possis, etc. tali die, etc. Statutes. Westm 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 Mandavi Ballivo libertatis falsely: upon resistance of any Great man to execute the King's Precept, the Sheriff shall take the Fosse Comitatus, and see it served. Stat. Ebora● 12. E. 2. Ca 5. Bailifeses 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, etc. must set his proper name to all returns. 27. Eliz. C. 12. Every Undersheriff, Bailife of Franchise, Deputy, or Clerk of the Sheriff, etc. 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 any extent or execution only xii. đ. of and for every xx. s. where the sum exceedeth not C. l. and uj đ. of and for every xx 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. For against a recovery pleaded 9 E. 4. 42. in ancient demesne, or other Court Baron; one shall not say, nul tiel Record, for it is no Record, but nul tiel recovery, and it shall be tried by the Country. Otherwise it is in the King's Courts. Of Record, which are the King's Courts, as he is King. Otherwise, if the 9 E. 4. ibid. King have a Court as Lord of a Manor, that is but a Court Baron. And these have that credit, that no averment can be taken against any thing there entered or done. And therefore work an estoppel to the 15. El. Pl. 434. parties in like sort, as Indentures did before. (a) 21. H. 9 24. As upon a Lease made by fine, both (b) 5. E. 4. 1. parttes are estopped to say the Lessor had nothing in the land. So of Pleas in Bar, Replications, Returns of the Sheriff, etc. 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. The King taketh Hereditaments, 18. Eliz ploy. 483. 21. H 7. 19 39 H. 6. 26. Stamf. praef. 56. though it be but for years. Otherwise it is of an Obligation or Chattel personal, by matter of Record only: for to personal and transitory things, as Catalla felonum & fugitivorum, wreck of Sea, treasure troue, and the profits of land of persons outlawed in a personal Action, etc. the King is entitled without office or other matter of Record: but to take a by a Condition 3. Eliz. ploy. 229. broken, or purchase of his Villeine, or such like, he cannot without office or matter of Record. Otherwise it is, where the Law casts a upon him, as in a gift in Tail, the remainder to the King. 3. Eliz. ploy. 229. 5. E. 4. 7. And therefore also the King taketh a without livery or seisin by deed enrolled: but cannot be enfeoffed by Deed, without inrollement of Record, for that no Livery can be made unto him. Villeinage beginneth only by confessing Lit. 39 a man's self to be one in a Court of Record And therefore in a Praecipe quod reddat, 41. E. 3. Villain. 6. if the Tenant say, That he is a Villeine to I S. and holds the Land in Villeinage, the demandant saith that is frank, etc. and he is found frank by the jury: yet he remaineth a Villeine to I S. Duties of the Testator growing by record, 21. E. 4. 21. must be answered by Executors before other duties. Courts of Record are the Parliament, 1. H. 7. 20 the higher house. Br. Recogn. 8. the lower house. or Courts that have ordinary jurisdiction. 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, to adjudge matters in Law, to try causes of life and death; to reverse 23. El. Dyer 375. 1. H. 7. 19 errors in the King's 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. 37, Ass pl. 17. And all their Decrees are as judgements. And if the Parliament itself do err (as it 21 E. 3. 46. Br. Parliament 16. may) it can no where be reversed but in Parliament. Statutes. 4. E. 3. Cap. 14. & 36. E. 3. Cap. 10. A Parliament shall be holden once every year. 1. H. 4. Cap. 14. Not Appeal shall be pursued in Parliament. Prerogative. Statutes of restraint bind not unless they concern the Commonwealth, or he be specially named: As the Statute of Westm 2. which altereth fee-simple Conditional, into an estate Taile, that Tenant in Taile shall have no power to alien, doth bind him: for it is for the Commonwealth. So as Lands being given to the King in Tail, the Remainder over, if the K. have issue who alieneth, & 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 seized 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 Commonwealth. But the Statute of 1. H. 5. cap. 5. that in Enditements, addition must be given to the party indicted, bindeth the king in that case because Enditements are especially named. He may licence 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 se, as to levy a nuisance in the Highway, he cannot licence to do: but when it is done he may pardon it. But where the Statute saith his Licence shall be voided, 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. cap. 18. is, That the Kings Grant to be Sheriff of any County, longer than a year, shall be voided, notwithstanding that the clause of Non obstante 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-mettall out of the realm (notwithstanding any statute made or to be made) is not good, if a Statute 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 jurisdiction, are either general, whose jurisdiction extends throughout the Realm, or but within some County: wherefore these latter, for their order and 34. H. 6. 41. course of proceeding, do in all things fashion themselves to the example of those higher courts, as of the parents 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 days of Returns. If either the return day, or first or last day of Term fall upon the Lord's day, than the day following is taken in stead of it. Michaelmas Term (beginning the 16. of October, and ending the 28. of November) 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 month after. Chrastino animarum, that is the next day after Chrastino Martini, Octab. Martini, Quindena Martin. Hillary Term beginning the 23. day of january, and ending the 12. of February hath four returns: Octabis Hillarij. Quindena Hillarij, Chrastino purificationis. Octabis purif. Easter Term beginning 17. days after Easter and ending the Monday next after Ascension day, hath five returns. Quindena pasche, Tres paschae, Mense paschae, Quinque paschae, that is five weeks after Chrastino Assentionis. Trinity Term beeginneth 12. days after Whitsunday, & continuing, 19 days, hath five returns, Octab Trinitat. Quindena trinitat', Chrastino johannis Baptistae Octab. johannis Baptistae, quindena johannis Baptista. Statutes. 32. H. 8. cap. 21. Trinity Term shall begin the Monday after Trinity Sunday for keeping of Essoynes, proffers, returns, etc. The full Term shall begin the Friday after Corpus Christi day. And have four returns only, Crastino Trinitatis, Octabis Trinitat': quindena Trinitatis, Tres Trinitatis. The rest are cut off. To these Courts belongeth the power of sending forth writs. A writ is a Latin letter of the kings from thence in Parchment sealed with his 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 writs out of the Chancery is the king himself: in other writs the chief justice of the place) the place as apud Westmonastarium, etc. 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 Fluries) not served, is a contempt, whereupon an Attachment 2. E. 4. 1. lieth. And therefore the third Fitz. Nat. Br. 68 ● writ hath always this clause in it, Vel causam nobis significes. So may the second which is the Alias also have, if the Plaintiff Fitz. Nat. Br. ibid. william. The officer of these higher Courts is the sheriff to whom is committed the custody 2. H. 6. 7. of the County. For matters spiritual, as certifying excomengement and such like, the ordinary 7. E. 4. 14. 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 sand to a bailiff of the franchise: who shall serve it as a servant to the Sheriff, and the Sheriff return it. And though the Sheriff serve an execution 2. H. 6. ibid. 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. But in a place excepted out of every 2. H. 6. ibid. county (as the palace of Westm is) it shall be directed to the Guardian of the palace, for he is immediate officer to the court, and in the nature of a Sheriff. So certificates of excommengement &, 7. E. 4. 14. 8. H. 6. 3. 12. E. 4. 15. such like must be made by the Ordinary, not by the Commissary, Archdeacon, 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 diverse cases especially, in suits concerning the King, as petitions. Scire facias to repeal his patents, etc. and so it is a court of law and of record, where the judge is the Chancellor having the custody of the great Seal of England, under which pass all Writs out of the Chancery with Teste meipsos; and also the King's; (a) 4. El. Pl. 213. grants, being therefore called letters patents, Though it be of things which he hath in his natural capacity, as by descent from his mother, etc. and are (b) C●. Court● fol. 108. entered of record in this Court. Statutes. 18. H. 6. cap. 1. The King's letters patents 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 avowrie plea, etc. aswel 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 Marie, Philip and Marie, & her Majesty that now is and all claiming under them. Such grants are effectual to pass a freehold from the King without any livery 38. H. 8. Br. Patents 101. of Seisin. And therefore his letters patents being Tenant in Taile make no discontinuance. And being matters of record, which being no livery, they take effect from the time of the date. Therefore the King's Charter of pardon shall be pleaded 37. H. 6. 21. without showing when it was delivered, because being a matter of record, it shall have relation to the date, and not to the livery. Otherwise it is of a deed. In default of a Chancellor, the Lord-Keeper of the great Seal hath his authority. Stat. 5. El ca 18. The Keeper (or Master) of the Rolls, is an assistant to this Court. In the King's Bench and Common place, the judges are one chief justice, and three (or sometimes more) other justices. The teste of their writs is, teste johanne Popham (the chief justice, etc.) The King's Bench is that which dealeth 10. El. ploy. 320. properly with Pleas of the Crown, both hearing and determining them. The Common place which dealeth properly 10. Eli. ibid. with common Pleas, such are those termed which concern possessions. Prerogative. The King hath a proper Court of this kind, for all things touching his revenues, 10. Eliz ibid. called the Exchequer. The judges whereof are called Barons, or housebands for the King's Revenue: being one chief Baron and three other. And this also hath a Court of Chancery before the chancellor & Barons of the Exchequer, called the Exchequer chamber. The Escheator here is a special officer, 4. E. 4. 24. He may take Inquisitions virtute officij. and hath a kind of Court for finding out the King's 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 throughout 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 F. N. E. 82. for offences which are common grievances. As a robbery, (a) 22. B. 4. 22. bloodshed, clipping & washing of silver and gold, night walking, the not repairing or making clean of a bridge or a ditch, (b) 10. H. 6. 7. frays and assaults, etc. But not (c) 22. E. 4. ibid. murder or breaking of one's hedge, etc. for they are no common grievances, but a wrong to one singular person. Whereunto every man of the age of 12. F. N. B. 161. Brit. per Br. leet 39 years & upwards (being within the precinct) oweth suit, & must be sworn to the King's Allegiance. And this is called a suit 12. H. 7. 18. 25. E. 3. 23. ● real, being not due by reason of men's freeholds, but of their body, because they are resiant within the precinct of the Leet. But Brit. per Br. ibid. women are not compellable to come thither nor to be sworn to the king. And therefore when a woman is outlawed, she is said to F. N. B. ibid. be waved and not outlawed, because she is never sworn to the Law. Piers of the Realm are excepted: And Stat. Marle ca 16. so reciteth it. persons of Churches, and other men of Religion, as appeareth before. The offendor here shall be amerced, and distreined for that amercement, throughout 2. H. 4 24. 8. R 2. avowry 194. 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 as she turn of Michaelmas. 31. E. 3. cap 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. cap: 17. Endictments in Sheriffs turns must be by Rolls indented, one part to remain with the enditors, the other with the sheriff. 1. E. 4. cap. 2. upon endictments and presentments taken before Sheriffs, or their ministers, at their turns, or lawday, 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 enditements 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. Ric. 3. cap. 4. None shall be returned upon panel of enquiry of the Sheriffs turn, but men of good name and fame, having within the same freehold land to the yearly value of xx. s. or copy land to the yearly value of xxuj. s. viii. d. and every indictment otherwise taken shall be voided. The Coroners Court, is a Court for Stamf. ●●. matters of the Crown. Battery, maim, rape, murder, etc. Statutes. Westm 1. cap. 10. Coroners shall be chosen in all Counties, of the wisest and sufficientest Knights. 14. E. 3. cap. 7. That no Coroner shall be chosen, unless he have land in fee sufficient in the same County, whereof he may answer to all manner of people. 28. E. 3. cap. 6. All Coroners of the county shall be chosen in the full Counties, by the Commons of the same Counties, of the most connenient and most lawful people that shall be found in the same Counties to do the office. Saved always to the king, and other Lords which own to make such Coroners, their seignories, and franchises. Westm. 1. cap. 10. The sheriffs shall have Conterrols with the Coroners, as well of their appeals, as of inquests of Attachments; and of other things which to that office doth belong. Westm 1. cap 10. Coroners must take nothing for doing their office. Upon just cause of exception to the sheriff, process out of the higher Courts shall 14. H. 7. 31. 4. H. 7. 3. be directed to the Coroners. Prerogative. The Steward and Marshal of the King's house, have a Court, for all personel Diu. of courts f. 102 actions, and pleas of the Crown, arising there. As debt, covenant, trespass, etc. & by the common Law they might hold plea of freehold itself, as it seemeth by the statute of Artic. super Chartas cap. 3. which saith, from henceforth they shall not hold plea of Diu of courts f 102 Stamf. 57 a. freehold. Also they may 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 & covenants but such as one of the king's house maketh with another of the same house. Nor of any trespass, unless the party were attached, and the plea determined before the king's departure from the place where the trespass was committed. Any thing attempted here against, is voided. 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. ca 2 & 10. E. 3. ca 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, & trespasses, when either party is of the king's house. 5. H. 6. cap. 1. The defendants may aver that themselves or the plaintiff (at the time of the suit commenced) were not of the King's house against the Record. 13. Ric. 2. cap. 3. The jurisdiction shall not pass above 12. miles about the K. house. 33. H. 8. ca 12. The Lord Steward of the King's house alone, and (in his absence) the Treasurer and comptroller of the K. house, with the Steward of the Marshalsy, or two of them (whereof the Steward of the Marshalsy to be one) may without commission hear and determine all treasons, misprisions of treasons, murders, manslaughters, & bloodshed, within the K. house, although the king be removed before. The enquiring and verdict must be by the king's household 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 Pipowders. A Leet is a Court of Record, having Fit. N. B. 82. 23. E. 3. 22. the same jurisdiction within an hundred only, or some less preciuct, which the Sheriffs turn hath in the County, the ●1. E. 4. 22. profit of, it being to a common person. Therefore it (a) 22. E. 4. 22. dealeth with offences that are common grievances. And (b) F. N. B. 161. Brit. ꝑ Br. l●et 39 all (but Piers of the Real me) own suit unto it, and must be sworn to the King's Allegeanee. And the (c) 2. H. 4 24. 8. R. 2 avowry 194 offendor for an amercement shall be distreined through out the precinct of the Leete. And that as well out of the Land holden of the Lord of the Leete (where the offence was done) as within it. The Sheriffs turn as an overseer of this Court, is to (d) 31. H. 6. leet 11 inquire whether the tithings be whole, or no: to (e) 12. H. 7. 18. present defaults that are not redressed in the Leete: 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 (f) 29. E. 3 21. avowry 247. otherwise the sheriefe in his turn hath no power to inquire of an offence done within the Leete. A Court of pipowders is a Court of record, (ff) 6 E. 4. 3. 7 E 4 23. A writ of Error lieth there, and not a writ of false judge. incident (g) Stat. 17. E. 4. ca 2 so reciteth it. to Fairs and Markets: but by (h) 13. E 4 8. Ibid. custom, a Court of pipowders may be held, out of Fair or Market: for all actions arising there, by reason of any contract, covenant, trespass, debt, etc. (i) 4. M. Dy. 133▪ And the suit must at the same time be commenced. Statutes. 17. E. 4. cap. 2. made perpetual, 1. R. 3. cap. 6. No plea shall be holden in Court of Pipowders, unless the plaintiff or his Attorney swear, that the matter of declaration was done in time of the same Fair, & within jurisdiction thereof, but that oath shall be no conclusion to the defendant, but that he may plead as he might before. Every Steward, etc. holding plea contrary, forfeiteth C. s. 42. ass. pl. 12. The King (by commission under his letters patents) but not by writ, may erect other Courts at his pleasure. Such were justices of Eyre, and such Courts of record in Corporations, and other places, by special Charter. The King's Council 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. cap. 1. The Chancellor, Treasurer, and privy seal, or two of them (calling unto them a Lord Temporal, and another spiritual of the King's Council, and the two chief judges) may examine riots, maintenances, etc. These are the Courts of record. A court Baron is the Court of a common person. F. N. B. 239. ꝓ Br. iurisd. 99 F. N. B. 239 g. And is for personal accounts under the value of xl. s. For a Trespass lieth not in a Court baron of damages above xl s. And a Supersedeas lieth to the Sheriff, upon diverse plaints in the County Court, every one under xl. s. when all are for one entire debt of xl. s. Or upon an Action of Covenant brought there to the damage of above xl. s. These cannot be kept oftener than ever is three weeks. But so it be not oftener then Br. leet 32. from three weeks to three weeks, it may be holden as often as the Lord wil And therefore 21. E. 4. 5. to hold of one by doing 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 3. weeks to 3. 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, good enough, though it be but by 16. H. 7. 14. word: Inasmuch as the trial in a Court Baron is all by the Country, and not by Record: for all is but matter enfait. The suitors are the judges, both in an hundred Court, County Court, or Court 6. E. 4. 3. Baron, and the bailiff and sheriff are but ministers. A Court Baron is the Lords, or the F. N B. 82. County Court. The Lords is either of a particular manor, or of a whole hundred. For a Court Baron is incident to every (a) 34. H. 6. 49. manor, and to every (b) 13. H. 7. 19 12. H 7. 17. hundred. The hundred Court is that whereunto all the inhabitants within the hundred own suit. By reason of their tenements. And is in effect but a Court Baron. The County Court, which is incident 12. H. 7. 18. 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. But the pleas holden before him in the County Court are not of F. N. B. 1●. Record, though it be by writ of justices. CHAP. 2. Of Writs Original. OF an action, there be two parts, Suit, and judgement. 10. El. Dyer 2●●. 5. El. Dy. 220. Suit, is the parties dealing in the action: and therefore all that while it is said to depend in plea, but not after judgement. 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 council 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 william. Westm. 2. cap. 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. cap. 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 a mounteth in value to that he purchaseth. Any may sue for the King before the justices, before whom the plea hangeth. 32 H. 8. cap. 9 None shall, buy, cell, or get, or take promise, or grant to have, any pretenced rights or titles to lands, etc. except the seller, or those (by whom he claimeth) were in possessions, or took the profits, by space of a year next before, upon pain that the Seller, etc. 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, etc. another's pretenced right. Gloucest▪ cap. 8. Attorney's may be made in all pleas, where appeals lie not. Met. cap. 10. In suits; at a County, tything, hundred, wapentake, or Court of the Lord. Westm. 2. cap. 10. A general Attorney may be made, in all Counties where justices do journey. 3. H. 7. cap. 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. As actions of 14. E▪ 4 4. debt upon an escape, may be brought in the County where the arrest or escape was. But not in any other County: A (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. Otherwise it is of trees, or grass cut down, they must be (b) Br. bill 35. brought in their proper County, if it be by bill, the County is set at the margin. Statutes. 6. Ric. 2. cap. 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 found surety by some that will be pledges to prosecute the suit. And so is the form of every original Simo (the Plaintiff) fecerit it securam de clamore suo prosequendo, The entry is, plegij de prosequendo johannes D●●. Rich. Roose. And these may be either to the 9 E. 4. 27. officer, or to the Court where the suit is. But a poor man in stead of sureties shall Regist fol. 228 et per Br pledge 29. give his faith to prosecute it: whereupon the form for him is, Et nisi fecerit & predict, (the plaintiff) fecerit te securum de clamore suo prosequendo per fidem suam quia panper est. Writs that begin the suit, are original, or Commissionall. Original which appoint the first process, if the plaintiff found pledges returneable in the King's Bench, or Common place. This must be (a) ●. E. 3. 4. true Latin, for upon habeas ibi hos (b) 9 H. 7. 16. breve, or uxori (c) 3. E. 3. 86. where it should be uxor, and such like, the writ shall abate, and beside (d) 3 E. 3 ibid. All this that followeth is the rule of the Register. formal, As (e) the General to be put in demand, and in plaint before the special. As land is general to pray, pasture, wood, ioncarie, marsh, etc. 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 message before land: for land that hath building upon it, is more worthy than land without building. A Castle, before a message, or a manor (and yet it may be parcel of a manor.) 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 for Noblemen▪ 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 surname, 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 (a) 8. E 4. 24. E 4. 24. saith, the reason is because there are in England no more Dukes of that name: and so i● may well enough be known of whom it is meant: and also for the selemnitie of the creation. But otherwise it it of knights for there are 1000 Knights in England. Therefore there the writ must be pracipo I S. militi. Lancast. is good, but not johanni Rectori (b) 27 H. 6. 3. de D. without expressing his surname. But when an officer is to sue by reason of his office, as a (a) 13. E. 3. br. 675 in act real. prebendary (b) 12. H. 4. 20. in Assize. 10. H. 7. 5. in waist 18 Ed 4. 17. in annuity. person, executor (c) 30. H. 6. 5. garden (d) 9 E. 3. 465. 33. H. 8 Dy. 50. 37. H. 6 29. 27. H. 6. 3. by Knight service, &c there he must express the name of his office: or when one bringeth an appeal of murder, ●s brother and heir, etc. Where there be many of one name, diversity of the names must be put by addition of eigne puisne, etc. else the writ shall abate. A Corporation may sue by the name that they are corporate, without name of Baptism or surname, as pr q. r. maiori & comunici L. etc. or Decano et Capitalo D. etc. Statutes. 1. E. 6. cap. 7. The acceptance of a new name of dignity shall not abate the writ. The king's servants in his Court or other by special grace of the Chancellor Regist. fol. 2●8. & per Br. pledge 29. may here be admitted to find pledges in the Chancery. And then the form is, Quia praed. (the plaintiff) fecit nos secures de clamore suo prosequendo pro C. de come. L. et D. de come. S. summoneas, etc. CHAP. 3. Of Common pleas. WRits original are concerning Lit. 116. Common Pleas, or appeals that concern life. Those that concern common Pleas, lie not for or against 18. E. 4. 4. a fem covert without her husband, but (a) 1. H 4. 5. Stamf. 62, a. an appeal of felony against her doth. Many having or giving jointly cause of action, 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 20. E. 3. Audit. Querela 28. after A. and diverse others are bound to the same B. in another statute, and B. by one deed releaseth to them all, and after sueth execution severally: They shall join in an Audita querela, because of this joint release. So one Decies tantum shall be against 36. H 6. 28. all the jurors that take money to give their verdict, for it is the entire act of all. Several actions of one nature, as debt, and detinue (for these are of one nature, inasmuch 3. H. 4. 13. 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. Prerogative. Here in place of action against the King, petition must be made unto him in the Chancery, (a) Stanf. prer. 73. or in (b) Stanf. prer. 73. Parliament, for (c) Stamf. prer. 42. no action did ever lie against the K. at the Common Law, but the party is driven to his petition, and (d) 34. H. 6. 5. if the escheator seize goods without cause, or seize the goods of one outlawed, which outlawry is after reversed, and accounted for them in the Exchequer; the party must sue by petition for them. And that (in the case of hereditaments) 9 H. 6. 15. though the King have granted the same away. For upon an office finding I. 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 K. 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 sueth 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. And in a petition to revoke letters patents made to two 7. H. 4 33▪ etc. 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. But whilst personal things seized for the King, remain in the officers hands, ●. E. 4. 24. 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 outlawed in a personal account, was seized of certain land; and in this case he shall not be driven to a petition: otherwise it is in case of a freehold, or inheritance. Petition is a supplication declaring the ●. E. 4. 52. parties right, where mention must be made of all the King's title; else it shall abate. For upon an issue in the petition found against thc king, he shall be concluded for ever to claim by any of the points contained in the petition. CHAP. 4. Of Real Actions. THese Writs concerning Common pleas are Real or Personal. And Lit. 116. they both again are precipes, 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. etc. Et nisi fecerit, &c, tunc somon', etc. And is a praecipe quod reddat which lieth for things in tender. As of real things, land and such other things in demesne, rent, corody, etc. of personal things, money, goods detained, and the like. A praecipe quod faciat which lieth for things not in tender, whether they lie in Feasaunce as a writ de consuetudinibus et seruities, Secta ad molendium, etc. 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 a do. The form is, Si A. fecerit te securum de clamore suo prosequendo tunc sumon', etc. Real actions where a freehold shall be 10. E. 9 23. recovered are possessory or in the right. Possessory which are to recover a possession, as all Assizes, Writs of Ayell, Besayell, and Cozenage. In the right which are to recover a possession mixed with the right of all which examples do follow after. And both these may either be of a possession F. N. B. 5 ●. or right in himself, or descended from his ancestors: which we call ancestral. Real actions in the right, are either founded upon the right, or for the mere right. Statutes. Merton cap. 8. Seisin of ones ancestor in a writ of right shall be from the time of Henry the second. In a mort dauncestor writ of Niefe and of entry, from the last return of king john out of Ireland. In an Assize of Novel disseisin, from Henry the thirds first passage into Gascoigne. Westm 1. cap. 38. Seisin of ones ancestor in a Writ of right, shall be from the time of Richard the first. In an Assize of Novel disseisin and nuper obijt, from Henry the thirds first passage into Gascoigne. In a mortdancestor cozenage, ayell, entry, and Writ of Niefe, from Henry the thirds Coronation. 32. H. 8. cap. 2. Seisin in a Writ of right shall be within lx. years. In a mortdancestor, or in another possessory action, upon the possession of his Ancestor or Predecessor, shall be within l. years. A Writ of the possession of the plaintiff himself, shall be within xxx. years. An avowry or Cognisance, for rent, suit or services of the seisin of his Ancestor, or of his own, shall be within xl. years. Formedon in remainder, reversion, Scire facias, upon a fine, shall be within l. 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 allege seisin in them within lx. year's next before the time of the prescription, title, or claim. 1. Mar. cap. 5. The Statute of limitation of 33. H. 8. cap. 2. shall not extend to a writ of right of Aduowson. Quare impedit, jure patronatus, Assize de Darrein, presentment, droit de guard of any lands holden by knight service, but the time of the seisin alleged 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. Therefore Lit. 115. a release of all actions reals, is no plea, unless he were Tenant of the Freehold at the time of the release, for else he had no cause of any such action against him. Neither Old tenors fol. 2. is any such action maintenable against lessee for years, for he hath not the Freehold. Nor the disseisee cannot have a praecipe quod reddat against the disseisor, which is parnor of the profits for years only, notwithstanding 6 E. 6. Pl. 87. the Statute, because by the Common Law, no action lieth against 4. E▪ 4. 32. him. And for this cause also, non tenure of the whole, or though it be but of parcel of the thing demanded. joynttenancie with one not named in the Writ. Entiertenancie of the whole, or several tenancy of parcel, 19 H 6. 32. 22. H 6. 12. when the Writ is brought against two or more, are good pleas in abatement of the (a) 45 E. 3. 5. Writ. (b) 37 H 6 8. 27. H. 8. 30. Statutes. 25 E 3 cap 16. Non tenure shall not abate the writ, but only for the quantity. 37 E. 3. cap 17. No writ shall be abated by knowledgement of villainage, if the demandant or plaintiff will aver that he that alleged the exception was free, day of the writ purchased. With the freholder, may be joined in action, any having title to enter: as the morgagor with the morgagee, 41. E. 3. 16. the Lord with his villeine, but not the disseisee with his disseisor. CHAP. 5. Of a Plea of Land. A Real praecipe quod reddat, is that which is for real things in tender. 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 vill. But personal actions, as trespass, and such like, may be in a hamlet. So of Dower and Assize, for there no land in certain is demanded; and also in an assize, he shall recover by view of the jury. So in a Scire facias out of a fine nuper obijt, a Writ of mesne, covenant, waist, quare impedit. These may be in a Hamlet. Otherwise it is of a Writ of right of Aduowson. A plea of land is a Writ of Entry, or a writ showing the demandants title. A writ of Entry is that which is to disprove the Tenant's possession by the means of his entry. Wherein Tenant in fee simple demanding Old N. B. 124. Fit. N B. 201 ● & f. of the possession of his ancestor shall say in the writ, Quod clamat esse ius & hereditatem suam. Tenant in Taile or for life, shall not so. But in his declaration set forth Fit. N●t Br. ibid. his 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 & Cui, when he against whom it is brought cometh in immediately under the first party's heir or allience: 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 Marlebridge. cap. 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 not Per and Cui, than the Writ shall be In quod, &c: nisi post dimissionem, etc. Out of all degrees, as by abatement, disseisin, escheat, recovery, Election, Succession, Dower, judgement, etc. or as the third or more feffees. The form of all which is thus In a writ of Entry, in the nature of an Assize, against the party himself that did the disseisin, Praecipe A. quod reddat B. unum Messuagium, etc. de quo A. iniuste et sine judicia disseisivit B. etc. or in the other form disseisivit C. patrem, or other ancestor of B. cuius heres ipse est, etc. In the Per thus. In quod idem A. non habet ingressum nisi per C. qui illud ei dimisit qui iniuste B. etc. (or in the other form) qui iniuste, etc. E. patrem, &c praedict. B. etc. In the Per and Cui thus. In quod, etc. nisi per C. cui D. illud dimisit qui inde iniuste B. or (in the second form) qui iniuste E. patrem, etc. praed. B. In the post thus. In quod, etc. nisi post disseisinam quam D. iniuste fecit praed. B. or (in the other form) iniuste fecit E. patri, etc. praed. B. etc. In such like manner it is of a Dum fuit infra aetatem, and of all other Writs of Entry upon an alienation. Marleb. cap. 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. Upon a determination of the estate, either by reason of a particular estate ended, or a condition broken. Of a particular estate ended is an ad terminum qui praeterijt, or Entre ad Communem Legem. Ad terminum qui praeterijt, is upon a deforcement by the lessee or a stranger after a Lease for years, or life expired, whether the Lessee did allien, or not. But not after the death of Tenant in Dower, or by Courtesy, for that is not properly called a Term Entry ad communem legem, is when tenant for life, be it his own or another's life, tenant in Dower or by courtesy 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. Causa matrimonij pralocuti, 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 ancestor, being within age. But the clause that he is of full age, viz. qui plenae 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 memory. Those upon a wrong at the first are either upon a discontinuance, or an ouster. Upon a discontinuance, as a Cui in vita, or a Sine assensu capituli. A Cui in vita, for the wife after the husband's death upon his alienation of her fee simple, fee tail, or freehold, whether whether dower or otherwise, or of such a joint estate in them. And in this writ claiming a fee simple, but not an estate Taile or a freehold, for there the Writ shall make special mention of the estate, she shall say, Quod clamat esse ius et hereditatem suam, though it be of her own possession. Statutes. Westm 2. cap. 3. A cui in vita given to the wife after her husband's 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 fine assensu capituli is for the Successor of a Bishop, Abbot, Prior, Deane, 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, Abbey, or Priory, without the consent of their covent, Chapter, or Confrers, etc. Upon 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 freehold, after the death of tenant for life in Dower, or by courtesy. And if land be given to two, and the heirs of one, and he that hath fee dyeth, and after him tenant for life dyeth. 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. Upon 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 Assize. Writs that show the demandants title, are mere possessory, or in the right. Mere possessory are those which are brought by the next heir upon an abatement after the death of any ancestor, other than his father, mother, brother, sister, uncle, Aunt, Nephew, Niece, for upon an abatement after the death of any such ancestor, an Assize of mortdauncestor 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 Ayell after the death of his grandfather or grandmother. A writ of Besayel after his great grandfather or grandmother. I writ of Cozenage after the death of his great great grandfather or grandmother, or any other collateral Cousin, as the great great grandfathers brother. Statutes. Westm 2 cap. 20. In a Writ of Cozenage, Ayell, and Besayell, the point shall be enquired whether the demandant be next heir aswell 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 showeth how the demaundants right is grown. And is a formdon or a writ of Eschete and Dower, unde nihil habet. A Formdon is a Praecipe quod reddat, entitling the party by the form of the gift. And is a formedon in remainder, or a Formedon in reverter: for a formedon in descender lieth not at the Common Law, but is given by the Staute of Westm 2. Old Nat. Br. ꝑ Br. Formed 69. 3. El. Pl 235. cap. 1. A Formedon in remainder is for him in the remainder for (a) Old Nat. Br. 148. 149. life, or in (b) F. N. B. 217. d. fee upon a Lease for (c) 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. A formdon in reverter is for the donor Fit. N Br. 219. c. 30. E. 1. formed. 65. altar 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 dye without issue. Contrary it is if he had issue and then had aliened, and died without issue. A writ of Eschete is for the Lord that hath a signiory in fee, or for life upon an escheat. Dower, unde nihil habet, is a writ for Old Nat. Br. 6. ones dower, which hath received no part at all of it. Statutes. Westm 1. cap. 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. A writ of dower lieth against garden Br. pr●●. qd rod. 35 by knight service, though he be not tenant of the freehold. A praecipe in capite is a praecipe quod reddat, for the mere right: and therefore lieth Fit. Nat. Br. 5. f. only for Tenant in fee simple of lands holden in Chief. Statutes. Washm 2. cap. 4. In place of a writ of right, a Quod ei deforceat is given to Tenants for life or in tail upon losing by default. CHAP. 6. Of a writ of right of ward, and a Writ of right Sur disclaimer. OTher real praecipe quod reddats, are those which are in respect of a signiory, 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, it lieth both for garden in soccage, and by Knight service: Fitz. Na. Br. 139. If of the land, it lieth only for garden by Knight service. Statutes. Marleb. cap. 7 In a writ De communi custodia, if the deforcer come not at the grand distress, the same Writ shall be reitterated, as often as well it may be within half a year following, and every time the Writ read, and Proclamation made in the County Court, if he come not to answer, nor the Sheriff found him within half a year, he shall loose the custody. Saving his action another time, if he have right. Westm. 2. cap. 35. In a Writ of ward of land, or heir, or both, either of the parties dying before the plea determined, a resomons 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, judgement 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 guard. A writ of Right Sur disclaimer is for the Lord to prove the Lands to be holden of him, when in an action where the services should be recovered, As in an avowrie made upon the Tenant for them: for there 13. H. 7. 27. he shall recover the services inclusive, inasmuch as he is to have a return in an Assize ibid. or praecipe quod reddat of rent (for there the services are expressly demanded) but not in a per quae seruitia (for there no services but an Atturnment only is demanded) nor in a 5. E 4. 2. 13. H. 7. 27. 15. E. 4. 29. justification, in a replevin, or an avowrie in an action of Trespass (for there the defendant shall never have a return, nor recover his services expressly nor includedly, the Tenant in Court of record, viz. in Old Nat. Br. 162. the Common place, but not in Court Baron or County Court. For there if the Lord make avowrie 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 itself for ever: because the disclaimer is of record. 16. H. v. 1. 34. E. 3. Dis●. 24. Therefore by such a disclaimer, he is barred of all possessory actions for the services, as an Assize, Cessavit, ravishment of ward, and such like: but not of a Writ of Eschete, Right of ward, right of customs, and services, etc. And though the Lord's distress & 16. H. 7. 1. avowrie were lawful, yet the Tenant so disclaiming, shall recover damages of him, for the disclaimer giveth the Lord a better advantage, viz. the Land itself. Statutes. Westm. 2. cap. 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. cap. 4. ● Explanat. cap. 4. when land is given in feefarme, rendering 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, nor tender, or do that which is contained in the writing, the other shall recover the land by a Cessavit. But the donee coming before judgement, if he tender the arrearages and damages, and found sufficient to do from thenceforth, that which is contained in the writing, shall tetaine 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. cap. 41. So if religious houses that have land given them, etc. withdraw the alms, etc. by two years, the donor shall have the like action. CHAP. 7. Of a Writ, De cousuetudinibus & Seruitijs, and Secta ad moiendinum. A Real praecipe quod faciat is either to recover hereditaments, or some real thing that concern them. Those that are to recover some F. N. B. 151. g. hereditament demanding of 〈◊〉 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 mere right, that is to say, are triable by battle, or grand Assize These are either in respect of a signiory, or to recover some other hereditament. In respect of a signiory, as a writ De Consuetudinibus et Seruitijs, and a secta ad molendinum. A writ De consuetudinibus et seruitijs lieth Fit. N. B. 151. b. for the Lord that hath an estate for life or a greater estate, in the signiory, and is deforced of his services Secta ad molendinum lieth for the Lord, when the Tenants that hold of him by Fit. N. B. 122. ●. grinding their corn at his Mill, withdraw their suit, and grinned elsewhere. Statutes. Marleb. ca 9 The Process either where the Lord distreineth 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 facias, and the grand distress. At which day not appearing, the distresses delivered shall so remain till recovery in the King's 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 damages. This of damages 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. 8. Of a Quare impedit, and a quod permittat., FOr other heraditaments are a quare impedit, and a quod permittat. A quare impedit lieth upon a disturbance, Fit. Nat. Br. 33. h. 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. cap. 3. Stat. 3. Upon the King's collation or presentment to a benefice, his title shall be well examined, and being found before judgement untrue, or unjust, the collation or presentment shall be repealed. And the patron or possessor which showeth the false title, shall have thereupon Writs out of the Chancery, as many as are needful. Marleb. cap. 12. In a Quare impedit, and Assizes of Darrein presentment, day shall be given from xv. days to xv. 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. cap. 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 damagess. An avowson (after the death of one that hath presented) being assigned in dower, or to Tenant by Courtesy, and 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 6. months pass hanging a quare impedit or darrein presentment, so as the Bishop presenteth by laps, the patron shall recover damages to two years' value of the Church. Otherwise damages to half a years value: The disturber not being able to tender damages, 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, being Fit. Nat. Br. 123. ●. disturbed by a stranger, so as he cannot use his Common. CHAP. 9 Of a Curia claudenda, Writ of Covenant real, mesne and warrantia chartae, where of fines. THose that are to recover some real thing concerning hereditaments are a Curia claudenda, or a Covenant real, and other writs sounding in that nature. A Curia claudenda lieth for a (a) F. N. B. 128. a. freeholder, not for a Tenant for years, when one that hath a Close next adjoining to him, (b) F. N. B. 127. b. & 128. a. F. N. B. 146. f. 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, etc. Writs in the nature of a covenant real, are a writ of mesne and a warrantia chartae. A writ of mesne lieth for the Tenant ngainst the mesne, when the Lord paramount Fit. N. Br. 135. m. doth distrain the Tenant whom the mesne aught to acquit. Statutes. Westm. 2. cap. 9 The Tenant distreined 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 Counties 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 distrain the Tenant of the demesne if he offer the service due. And exacting of him more than the mesne aught 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 judgement as before. The mesne coming into the Count and acknowledging, or being adjudged to acquit his Tenant, and not doing it, the Tenant shall 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 damages, and be quit of the mesne, and hold of the chief Lord, and if the mesne come not at the first distress, than another distress shall go out, and proclamation, and so proceed to judgement as before. This statute extendeth only where there is but one mesne between the Lord that distreineth 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 F. N B. 134. d. him, either by feoffement, (a) 12. H. 4. 22. release, or confirmation with clause of warranty, where his hereditaments are liable from Fit. Nat. Br. 134. k ●2. H. 6 22. the time of the action brought. 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 had at the time of the voucher. And upon these writs of (a) 42. E 3. 5. Covent real, (b) T. H Eitz. mesnes (c) john per Dy. 179. warranty of Charters, as also upon a Writ of (d) 21. E. 3. 18. customs and service, s 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 one's right is called, A fine sur conueyance de droit, But if the right be ackowledged 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 done. The form of a fine is, Haec est finalis concordia facta in curia dn'i Regis, etc. unde plac' conventionis pendet in ead' curia sc. qd. prad' I. S. recognovit tenementa praed esse ius ipsius A. etc. A fine may be levied upon a writ of warranty of Charters, for it is in effect but a 42. E. 35. 40. E. 3. 7. covenant between the parties before the justices, and entered of record. 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 fracto, and recover damages 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 22. N. 6. 57 had nothing etc. it is no good replication, that the parties were seized &c. for if one 27. H 8. 4. 37. H. 6. 5. of them were seized it is sufficient. Which form of pleading (viz that one of the parties was seized) proveth that if he have 7. Eliz. Ploy. 360. left an estate for years the fine is void. And a fine of the land itself will pass away a reversion depending upon an estate estate for life. And this is as it were a feoffement of record. So as a freehold passeth (a) Lit. 12. is that in a feoffement made on pai●. etc. 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 feoffements of record. thereby without any livery of seisin. That where of the fine is levied, or any thing contained in it, as a rent Common, etc. out of the land, an estate for years, or other estate in the land, etc. may be granted back again to the Conisor by the same fine. And this is called a fine sur grant & tender. The form whereof is: Et pro hac recognitione, etc. the conisee concessit, to the conisor, praed' tenem' cum pertium & illa ei reddidit (b) 18. E. 422. in ead' curia haben', to the conisor, etc. (c) 36. H. 8. Br. fines 118. 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 rendereth it back to A. and E. his wife, etc. 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 henceforh be admitted in the parties to the fine or their heirs. The fines shall two days in the week be publicly and solemnly read, and all pleas cease in the mean time. 5. H. 4. cap. 14. All Writs of Covenant and other, whereupon sins 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 enroled in a roll to be of record for ever Out of the which execution shall be had, if the notes or fines shall be imbezilled. 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 Queen's silver: Also every writ of Entry in the Post or other writ, whereupon any common recovery is suffered, the Writs of summons ad warrantizandum, and the returns of all these writs, and every Warrant of Attorney may at any man's request be enroled. Which enrolment shall be of as great force to all purposes in Law as the things themselves if they were extant. Not fine, proclamation, or common recovery shall be reversed by writ of Error, by reason of false Latin, rasure, enterlyning, misentring of the Warrant of Attorney, 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 if Lit. 104. claim be not made within a year, therefore it is called a fine, Quia finis finem sitibus imponaebat. And in a fine upon a render, if 7. Ed. 2. 37. Contin. cl●●m 7. the Conisee sue not execution within the year but after the year, by a scire facias, no stranger need to lay to his claim. Statutes. 34. Ed. 3. cap. 18. The plea of non claim, of fines from henceforth to belevied, shall not be any bar. 34. H. 7. cap. 24. Every fine after the engrossing 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 strangers, except women covert, persons within xxj. years of age, in prison, out of the Realm, or if none save memory (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 year's 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 proclamations, by force of any matter before the fine. So they take their right according to the law within 5. year's next after it grow, etc. And those that be covert Baron, etc. at the time when it groweth, etc. that they or their heirs take their actions or lawful entry within five years after those imperfections removed. Saving 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. cap. 36. All fines levied by any person of xxj. years of age of lands entailed before the same fine, to himself or his ancestors in possession, reversion, remainder or use, shall immediately after proclamation made, be a sufficient bar against him and his heirs, claiming only by such entail, and against all other claiming only to his use, or the use of any heir of his body. 1. Marl. cap. 7. All fines whereupon proclamations be not, or shall not be duly made (by reason of the adiournement 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. ●1. Eliz cap. 2. Proclamations of fines shall be only four times, viz. once in the Term wherein the fine is engrossed, and once every of the three Terms next after. A femecovert joining with her husband Lit. 14●. in a fine it bindeth her for ever. Therefore here the justices must examine her to see that she do it willingly. For if she say 15. E. 4. 1. 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 signiory, rend charge, rend seck, remainder, or reversion, is presently good. Save for bringing actions that run in privity between the Tenant and him. As an action of Waste or Cosimili casu, when the reversion 48. E. 3. 15. of Tenant for life is granted by fine, and after Tenant for life a lieneth in fee, a Writ of Eschete or Ward when the Tenants services are granted by fine, and after the Tenant dyeth without heir, or his heir within age. 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. 37. H. 6. 5. CHAP. 10. Of an Assize and juris utrum. THus much of real praecipes. Real si fecerit te securum, are an Assize, ● juris utrum, or other. An assize is such a real Plea Fit. Nat. B. 177. ●. merely in possession. An Assize of ones own only possession is an assize of novel disseisin, or an assize or Nusaunce. An assize of novel disseisin is for a freeholder against his disseisor, whether it be of land or rent, or the Bailiff of the disseisor if himself cannot be found. And being of a rend charge, or rend seck, all the Tenants of the Land, we call them terretenants must be named, and the whole land put in view, though he were 31. ass. Pl 31. 32. ass. Pl. 10. disseised by one Tenant only. If the Lord distrain the Tenant too often for the rent or services: that is to say, such as too great a distress may be taken for, as rend service, etc. but not for fealty suit of Court, etc. for which there cannot be any too great distress. And whether it be the Lord mediate or immediate, the Tenant may have an assize: the reason is, for that the tenant cannot make rescous. Statutes. Magn chart. cap. 12. Assizes of mortdauncester and of novel disseisin shall not be taken but in their proper County by the justice of Assize, 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 18. 13. E. 1. Stat. de Mercator 27. E. 3. cap. 9 Tenant by elegit by Statute merchant, and by statute staple, shall have an assize or redisseisin. Westm 1. cap. 47. The garden or chief Lord enfeoffing one of parcel of land in his hand, the heir may presently have an assize of novel disseisin against the garden and tenant, and the garden shall loose the ward, and all the remnant that he holds of the heirs for life. Westm. 2. cap. 25. A man shall have an assize for estovers of wood, profit to be taken in wood of nuts, accornes, and other fruits of Corodies, 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. Custodidies of woods, parks, forests, Chases, warrens, gates, and other Bailywicks, and offices in fee. And in all these cases the writ shall be de libero tenemento. Likewise an assize is given for common of Turn land, fishing, and such like. Commons which a man hath appendent to a freehold or without a freehold by special deed, at the lest for term of his life. Westm. 1. cap. 24. An Assize given against escheator, Sheriff, or other Bailiff of the King, that seizeth any lands by colour of his office, without special warrant or commandment, or certain authority that belongeth to his office so to do, and double damages to be recovered. Westm. 2. cap. 25. When Tenant for years, or in ward alieneth in fee, the remedy shall be by an assize, as well against the feoffor as the feoffee, during the life of either of them. If by the death of either of them, remedy fail by that Writ, than the remedy shall be by a writ of Entry. 7. Ric. 2. cap. 10. An assize 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 assize, if one named a disseisor do personally allege an exception whereby the taking of the assize may be deferred, as that another time an assize of the same land passed between the same parties, or that there is a Writ of higher nature hanging, etc. 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 assize, tender double damages, and have a years imprisonment. If such exception be alleged by the Bailiff in the absence of his Master, the taking of the assize, and judgement 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 damages, with his double damages sustained since the first judgement and imprisonment of that party that recovered. In like manner if the defendant, against whom an assize passed in his absence, show 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 enrolment of them, like punishment shall be as before. Westm 2. cap 30. The jurors shall not be compelled to found a disseisin or no disseisin, but may give their verdict at large. Merton. cap 3. A man disseised recovering his seisin by assize 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, etc. 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 recovered by default, redition, or otherwise, without recognition of the assizes and juries. Merton. cap. 3. The redisseisor shall be imprisoned. Marleb. cap. 8. And not delivered without special commandment of the King, and beside shall pay a fine. Westm. 2. cap. 26. He shall answer double damages, and not be repleviable by the common writ. Westm 2. cap. 8. In fine, writs of redisseisin must be enroled in the Chancetie, and a transcripsit thereof shall be sent into the Excheker in the end of the year. An assize F. N. B. 184. g. of nuisance is for him whose freehold is spoiled by any nuisance, for if he have but a lease for years in the land, he shall not have an assize of nuisance, but an action upon his Case. Statutes. Westm 2 cap. 24. Gives an assize of nuisance against him to whom the Tenement is alienated after the nuisance is made 6. Ric. 2. cap. 3. The plaintiff, if he will, may have a writ of nuisance in the nature of an assize, determinable before the justices, of one bench or other, or before the justices of assize. An assize of his ancestors possession only called an assize of mortdancestor, is for The form of the writ F. N. B. 195. 14. El. Dy. 310. is that the 3 points to be inquired in a Mortdancester (all expressed in the writ) are 1 whether the ancestor were seized in see day of his death. 2. whether the demandant be his next heir. 3. whether the ancestor died within fifty years next before the writ purchased. the next heir upon an abatement after the death at his father, mother, brother, sister, uncle, aunt, nephew, or niece: for of other ancestors, a writ of Ayell, Besayell, or Cozenage, and not a mortdancestor lieth, who was seized in demesne as of a see (a) F N. B 196. k simple the day (b) F. N. B. 195. d 4 El. Pl. 239. 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 mortdancestor, (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 endescender, which was nothing else but a Writ form upon his case. So if the ancestor were seized in tail, the remainder F. N. B. 195. d. to his right heirs, a mortdauncestor lieth not, for there, of the demesne he is seized in tail, not in fee. Statutes. Magna charta, cap. 12. vide supra. Marleb. cap. 16. A mortdancestor given against the Lord that will not tender the land to his ward at full age. Westm. 2. cap. 4. If a woman having no right recover dower against a garden, 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 niece, and the other in a further degree shall join in a mortdauncester. Gloucest. cap. 3. The heir shall have an assize of mortdauncestor, if Tenant by courtesy alien and leave no assets. An assize which may be either of his own or his ancestors possession, called an assize of darrein presentment is upon a disturbance when (a) F. N. B. 31. g. old N B. 33. himself or his ancestor did last present: and therefore lieth for (b) F. N. B. 31. i 5 H. 7. 16. tenant in years as well as for him that hath an estate of inheritance, or for life. Statutes. Magn. chart. cap. 13. An assize of darrein presentment shall be always taken before the justices of the Common place. Marleb. cap. 12. and Westm 2. cap. 2. A F. N. B. 48. r. juris utrum is such a real plea founded upon the right for a Parson or Vicar upon his predecessors altenation. Statutes. 14. E. 3. cap. 16. A juris utrum, and other Writs according to their case, given to Parsons, Vickars, and Wardens of Chapels, Provosts Wardens and Priests of perpetual Chauntries for lands in frankalmoigne, as well as to Parsons of Churches, or Prebends. CHAP. 11. Of a Writ of Partition, Nuper obijt, and a Quo iure. THis is the nature of an assize, and juris utrum. Those that follow are either a Partitione facienda, & nuper obijt, (which both lie between privies in blood) or a Quo jure. A Particione facienda lieth between copercenors to compel partition to be made, Lit. 53, 65, 72. but not between joint-tenants, or Tenants in Common, yet partition made there by Lit. 98. 5. E. 3. parti●. 11. assent between them is very good, but the husband of one of the coapareeners coming to be Tenant by courtesy, such a Writ lieth for the other Copercener against him because he cometh in of the state of his wife; but not for him, against the other. Therefore here for equality of partition, things that otherwise cannot may be granted 2. H. 7. 5. 11 H. 4. 3. 28 H. 6. 2. 21 E. 3. 7. 28 H. 8. Dy. 29. without deed: As a rent, reversion, signiory, way, avowson, composition to present by turn, etc. Statutes. 31. H. 8. cap. 1. joint-tenants, or Tenans in Common of an estate of inheritance, may be compelled to make partition, and afterwards shall have aid to deraigne the warranty paramount, and to recover for the rate as coperceners (after partition) should. 32. H. 8. cap. 32. joint-tenants, 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 Executours and Assigns. Nuper obijt lieth against one privy in F. N. B. 197. blood, that entereth after the death of the ancestor that died seized in demesne. And therefore being but to try the privity of blood, view, nor voucher, lieth not, neither is non tenure any plea. A Quo iure lieth for the tenant of the F. N. B. 128. land when one challengeth common, there to try whether in right he aught to have any or no. CHAP. 12. Of Debt and detinue, whereof a Writ of Annuity. THus fare of real actions. A personal action is that where damages are to be recovered, for at the Common Law neither shall (a) 22. H. 6. 27. any but the Plaintiff recover damages, (b) Br. Costs 29. nor damages lie but in personal and mixed actions, not in real, as Dower writs of Entry, sur disseisin, Ayell, Cozenage, etc. for in them damages 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 (c) 21. E. 4. 3. Executor to his debtor and once administer, or take to wife one of the Executors of his (d) 11. H 4. 83. debtor, she having administered before, the action of debt is gone for ever. So if two (e) 8. E. 4. 3. be bound in an obligation to a fem sole, and after she taketh one of the obligors to husband, the whole duty is extinct. Erecutors bringing an action, must do 21 E. 4. 23. 16. H. 7. 4. it in all their names, as well of those that refuse administration, as of the rest. But an action may be brought only against 32 H. 6. 25. those that do administer. Statutes. 9 E. 3. cap. 3. Stat. 1. In a writ of debt brought against diverse executors, they shall have but one essoine before appearance, and one after appearance. He ot 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 judgement 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 a possession in Common, Tenants in Common are in all respects as jointenants, for they must join in an action of Trespass, for a trespass 22. H. 6. 12. 38 E. 3. 7. done upon their ground: in an action of account, against their bailiff of a wood, and if one of them dye, the suruivor shall have an action of the whole. So if Tenant for life 45. E. 3. 3. the reversion to two sisters commit waste, one sister dyeth having issue, and the Tenant commit waste again, the issue and her Aunt shall join in an action of waist, and the Aunt sole recover triple damages for the waist done in her sister's time. In personal praecipes, damages only shall be recovered where the thing▪ cannot be had: for (a) 1. E. 5. 6. damages shall not be recovered in a Writ of Detinue, if the thing itself may be delivered, damages (b) Br. Detin. 48. I say to the value of the thing demanded: but damages for the detaining shall. personal praecipe quod reddats are debt and detinue. Debt, when any thing is due upon a contract. Which if it be (a) 50 E. 3. 16. ●1 H. 7. 5. money due from one to another in their own right, is in the Debet and Detinet, otherwise in the detinet only. As in debt, for the rent (b) 50 E. 3. ibid. of Wheat, and Hens reserved upon a lease for years, or of any Chattel, quick or dead, in debt, (c) 19 H. 8 8. by or (d) 10 H. 7. 5. against an executor for rent, upon a lease of land, though it be behind after the Testators death: or (e) ibid. upon a former recovery of debt or damages against executors, or for arrearages found in an action 15 El. Pl. 441. of account brought by them, for all is in the right of their Testator. But against an heir upon an obligation, etc. 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 (g) 47 E. 3. 33. Abbot or Prior upon an obligation of the predecessor, and though he be behind himself only, and against husband (h) ibid. and wife upon a recovery of debt and damages against the wife whilst she was sole. 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. Ric. 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 loose 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 voided. 32. H. 8. cap. 37. The Executors or Administrators of him that hath any rent or fee farm in fee in 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 distrain (and make avowrie 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 ● any rend or fee farm in his wife's 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 another's life, & cesti qui vi, die, the same being unpayed. Prerogative. When any of the King's goods come into a subjects hands, whether by matter of record 10. El. Pl 321. or enfait, so as he is accountant 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. cap 2. The land of the heirs of high Collectors of any Task, subsicy, or lone, and of the receivors of Courts, shall be chargeable therewith, as well that the heir hath by descent in fee tail, as in fee simple. And also that that is given him by the collector or receivor covenously, and thereupon the heir may have an action of debt against the Executors and administrators of his ancestor, wherein no essoine, protection, or wager of law is allowable. And have execution of the goods of the ancestor, ●eing in their hands at the time of the action brought. 13. Eliz. cap 4. The lands, profits, and ●ereditaments of every accountant, or of ●im that receiveth money for the Queen, ●r her Successors, to be employed to the use ●f the Queen, shall be extended (in the ●ature of a Statute Staple) for the payment of the arrearages. Or the Queen if he do not satisfy within six months after the arrearage found, may cell 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 accountant taketh the profits: 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 lemaine. If any such buy land with the Queen's Treasure, since the beginning of her reign, and pay not the arrearages as before, the Queen shall seize & retain the land according to the rate that the party had it. This sale extendeth not to to those officers that have used to disburse the arrearages about their charge, or offices which continued, except the Queen command present payment to be made, and then they shall have six months as before. This Statute extendeth not to the accomtants, whose yearly rent, or whole receipt from the beginning exceedeth not C C C ● nor to Sheriffs, Eschetors, Bailiffs of liberties. Also the surerties shall be ratable according to their habilities charged for the surplusage only which remains not satisfied by such sale of the lands of such officers. 39 Eliz. cap. 7. The former Statute of 13. of Eliz. shall extend to sales to be made after the death of the Accountant or debtor, and to an account made, or debt known within eight years after his death. And none shall be taken a debtor but such officers and accomptants (in this act mentioned) as upon their accounts finished (all reasonable petitions being allowed) shall remain debtor upon the foot of the account. After one year after the account made or known (all reasonable petitions allowed) the Queen may by her Letters Patents cell so much as shall suffice to satisfy 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 enroled, feoffement, or recovery with voucher. And shall bar the party and his heirs, and all claiming under him, after he ●hall be debtor or person accountable, and ●ll whom he might have barred by any recovery, and all whose lands are to be sold ●y the intent of 13. Eliz. And shall be good ●gainst the Queen and her Successors, and ●ll claiming under them for any charge or ●combrance to the Queen or her Successors by the party. Provided, it shall not avoid any lease by ●he Queen in other sort than it should at ●he Common Law, if the Queen were satisfied. This act and 13. Eliz. shall extend to vn●er collectors of tenths and Subsedies of ●he Clergy, shall not impeach any assurance made before this Parliament, bona fide nor any lease of xxj. years, or three lives whereupon so much yearly rent shall be reserved yearly payable, as hath been within xxj. years before, nor customary estates made according to the custom. And of this nature is a writ of annuity, which lieth for him that hath an annuity (a) F. N. B. 152. a in fee for life, or though it be but for years be (b) F. N. B. 152. b. it money or other things, as clotheses, bread, etc. And is in the debet for them (c) F. N. B. 152 c. all: that is to say, for any other thing as well as for money, not in the detinet contrary to an action of debt Detinue Old N. B. 62. when any thing is withholden, which is called De catalis reddendis: if it be for writings, Old N. B. 65. it is called De chartis reddendis. CHAP. 13. Of an Action of account, and an action of Covenant. PErsonall praecipe quod faciats are ●n action of account, and an action of Covenant. An action of account which is for an account to be made: as if one be made a Bailiff of a manor, etc. then it is F. N. B. 116. p. against him as Bailiff; if receivors of his rents, debts, etc. then as receivor: if both Bailiff and Receivor, then as Bailiff and Receivor. Statutes. Marleb. cap. 23. Attachment given in an action of account against Bailiffs that withdraw themselves, and have no lands nor tenements to be distreined by. Westm. 2. cap. 11. He to whom the account is to be made, may assign Auditors to take it, who may immediately commit to the next gaol the accountant (being found in arrearages) till he fully satisfie● whereupon the accountant 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. Lit. 118. And so can no other man. An action of covenant which is for a covenant, that is to say, an agreement by deed to be holden. CHAP. 14. 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 fare as breach of the peace, others do break it. Those that break not the peace, are these that follow. Rationabili parte bonorum, for the wife & children of one deceased to have their part of the goods. Valour maritagij for garden in Knight service, when the heir at full age refuseth to satisfy him for his marriage: and therefore F. N. B. 141. d. f. there in the writ are no words of the heirs intrusion into the land. A writ of forfeiture of marriage is to recover the double value against such an heir marrying himself within age, without the F. N. B. 141: g. Lords assent, and at full age putting out the Lord. Entrusion of word, when the heir of land by Knight service entereth, and putteth out the Lord, whether during his nonage or after his full age, if the heir both intrude and deny the value of the land also, than this writ of Intrusion of ward may be brought for both. Ejection custodiae for any garden by knight service or soccage, against a stranger, F. N B. 140. eiecting him of the land, or body of the heir, or both. Quare eiecit infra terminum for lessee for years, against the fe●●●e in fee, or for life F N. B. 197. of his lessor, for in such a case an Ejection firm lieth not against the feoffee or lessee for life, because he is not the person that doth oust him, but his feoffor. And therefore was this writ devised. And here the term itself shall be recovered, if it be not past, as in an Ejection firm that cometh after. Trespass upon the case of things not against the peace, as Assumpsits for an assumption So is the Law now adjudged. to be performed, and such like: and this lieth not against Executors. Here and in all other actions of Trespass upon the case, the writ must comprehend 38. H. 6 9 all the matter of substance, and which is traversable as clearly as the count, unless it be the day, quantity of the land, or such like. CHAP. 15. 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 22. H. 6. 4●. of deceit is upon any deceit committed, 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 Sommoners, but not when all the Sommoners and veighors be dead. In a writ of deceit the Plaintiff shall recover all that he hath lost. As if it be brought upon a recovery in a quare impedit, 33 H. 6. 10. etc. then damages: if in a formdon then the land only, but no damages, for he lost none in the formedon before. Conspiracy in the nature of a trespass is upon conspiring by many to prejudice F. N. B. 116. a, b, ●. a man wrongfully. As if men conspire to indite one, because he arrested not a fellow that passed by the Town of M. And thereby they 'cause him to be indicted and amerced in the Leete 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 cell other of his lands for defence of this. Or if men procure one to be indicted for hunting in a Park, whereby he is taken and imprisoned, and put to expenses till he have acquitted himself of this trespass. CHAP. 16. Of Trespass whereof Parco fracto, rescuous, and ejection firmae. Such are those without force: coupled with force is an action of Trespass, for a trespass done whether in goods or upon his land. And so if it be of a bodily trespass, as battery, etc. But in maim and rape it is called an appeal. An action of Trespass brought in a Court baron, F. N. B. ●39. d. F. N. B. ●5. f. 86. a. whether by plaint in the Court of a manor, hundred, or County Court, or by writ in the County Court, must not suppose it to be done by force and arms, for then a (●) F. N. B. 239. d. Supersedeas lieth showing 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 either in Process or execution, but in Courts of 3. H 6. 54. Record only. Statutes. Marleb. 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 judgement, or though he commenced no action. And likewise to recover their own seisin against intrudors in time of vacation, wherein damages are also given. Marleb. cap. 4. If the Lord distrain for his services when none are due, yet he shall not be punished by fine and ransom, but only be amerced. Weshm 1. cap. 20. Trespassors in Parks and ponds attainted at the suit of the party, besides making large amendss according to the Trespass and fine, at the King's pleasure, shall have three year's imprisonment, and found good surety not to commit the like trespass. And if he cannot found 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. Ric. 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 Kings william. 15. Ric. 2. cap. 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 found any that hold such place forcibly after such entry made, they shall be taken and put into the next gaol, there to abide, convict by the Record of the same justice, till they have made fine and ransom to the king. 8 H 6 cap 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 entered 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 triple damages against the disseisor, or any feoffee coming in by fraud. 31. Eliz. cap. 1●. 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 14. years of age shall be imprisoned, besides loss of the value of the marriage. Westm. 2. ca 35. One that hath no right, taking away the Ward, shall be imprisoned two years, rhough he restore the child not married, or satisfy for his marriage. Not restoring him unmarried, or not be able to satisfy 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 set down. If the defendant there come not upon the distress, he shall be outlawed. The plea shall proceed though the heir dye. If the Plaintiff die before the plea determined, etc. a resommons shall be against his executours or heirs (if the executours have no assets) to satisfy the value of the marriage. Special actions of Trespass are these F. N B. 100 that follow. De parco fracto for taking a distress of beasts and other things distreined for damage fesant, or for rent & services behind, not of the pound, whether common pound or other place that is a lawful pound, and whether he that so broke the pound 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 pound of the owner of the soil, but of him that did distrain, and the other shall have an action of Trespass, Quare clausum fregit. Rescous for taking such a distress away F. N. B 101. c. F. N. B. 102. f. before it be impounded. And here the party must needs have possession of the beasts, or things so recussed; for if he be disturbed before he do attach or distrain them, a writ of rescous lieth not, but an action upon the case. Ejection firm when (a) F. N. B. 220. h. lessee for years of land is ousted, be (b) F. N. B. 220 f. it by the lessor or a stranger, where the term itself shall be recovered if it be not past, as in a Quare eiecit infra terminum before. CHAP. 17. Of Appeals that touch life. THese are the Common pleas, an appeal that concerneth life is the parties (a) Lit 116. private action, prosecuting also (b) 8. El. Pl. 476. for the crown in respect of a felony, be it a (a) 33 H. 8. Dy. 50 petty Treason, or other felony whatsoever. But for (e) 33. H. 8. ●. Stamf. 50. 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. So the puisne 7 E. 4. 15. 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. Magun chart. cap 33. A woman shall have none but only of the death of her husband. 2. E. 6. cap. 24. indictment 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 indictment of murder, or manslaughter, or as accessary 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. 18. Of writs of right Patent. THus far of original writs, Commissionall 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 vicontiel. are those which are not returnable but determinable before the parties to whom they are directed. And are but in effect commissionarie, or mere commissions: of the first sort are those that give authority to a Court baron to hold plea where the suitors are the judges, not the sheriff or steward. These are a writ of right patent or a justicies. In both which the some course is 6 E. 4 3. ●5 H. 6. 5. holden, as in those that went before, viz. pledges as before, count as in them, and the same both 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 petit cape. Trial by battle or grand assize, etc. in justices or viecontiell, writs of debt, account, etc. Somons', 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 joined in one justicies with several praecipes. So in plaints, bills, etc. A writ of right patent is a writ for the (a) F. N. B. 1. b. mere right of Tenements holden of a common person, as land, (b) F. N. B. 30. avowson, or rend (c) 14 E. 3 dr. 31. service: but not (d) ibid. rend charge, rend seek, or a (e) F. N. B. 1. b. Common, to be brought in the Lord's Court of that manor. But (g) F. N. B. 3 c. & 8. a, b. if he hold no Court, or otherwise (f) Old N. B. 1. (h) F. N. B. 2. f. yield his Court to the King for that time, at the prayer either of the Tenant or demandant, than it may be in the King's Court with this clause, Quia B. capitalis dominus nobis inde remisit curiam. And this must show by what service the F. N. B. 1. i F. N. B. 4. land is holden. The writ remaineth always with the party himself So doth no (b) Old N. B. 10. F. N. B. 9 b. Old N. B. 10. Ibid. 8 El. F. N. B. 9 b. It lieth also where the Ancestor died seized. F. N. B. 9 b. Old N B. 10. other writ original. If one privy in blood not past the third degree, enter after the death of the ancestor that died in demesne not seized As where a man letteth for life, and dyeth in the life of the Lessee, having many coheirs, and after that Lessee for life dyeth, and one of the Coperceners entereth into all, or where the ancestor is disseised and dieth, and one copercener entereth into all, there such a writ of right patent, F. N. B 9 g. for the other coparcenar, or for the elder brother, if the younger enter into all, is called a writ of right De rationabili parte terrae. And therein the grand assize nor battle Old N B. 10. F. N. B. 9 g. F. N. B. 9 n F. N B. 197. ●. d. 7. H. 6 8. shall not be joined for the privity of the blood: nor view nor voucher lieth, neither is non tenure any plea, for it is to try the privity of blood, as a Nuper obijt that went before. F. N. B. 6. 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 in ● writ of dower, unde nihil habet before. CHAP. 19 Of justicies. 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. 1 An assize of petty nusaunce is where a mill, or such like, is levied to one's F. N. B. 184 b. nusaunce. All of them are comprehended in these verses; 〈…〉 rica ca〈…〉 gultum ges lending Fab, fur, porta domus, vir, gur, ●●, murus ovile: 〈…〉 Et pons; traduntur haec vicecomitibus. 2. For admeasurement of things, as, F. N. B. 148. Admeasurement of dower by the heir, when his garden or himself endowed the wife in his nonage of more than she aught. ibid. But by this writ she shall have no new land assigned to her in dower. But only there shall be taken from her so much of the land as amounteth above the third part of the land, whereof she aught to be endowed. Admeasurement of pasture by a commoner F. N B. 125. b & d whom another commoner wrongeth by putting in more beasts into the Common than he should, whether the Common be appendent 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 distrain the surplusage for damage fesant. And as some say, may have an assize, for it is a disturbance of the profit of his soil. Nor for the Tenant against his Lord surcharging, but he shall have an assize of common. Statutes. Westm. 2. cap. 7. A garden may have a writ of admeasurement of dower, and the heir also at full age, if the garden 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 inquire 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. 3 A Nativo habendo for the Lord that F. N. B. 77. a. hath an inheritance in any villeine, but not an estate for life or years, for this writ is in F. N. B. 77. b. his nature a writ of right to recover the inheritance of his villeine When his villeine departeth away from him. And here if the defendant pled that he is frank, the Sheriff F. N B. 77. a. cannot proceed. 4 Rationabilibus divisis for that Lord whose land or waste hath by little and little Old N B. 73. been encroached upon within time of memory until now, by a Lord whose signiory adjoineth in another ville, against the Lord so encroaching. But if the encrochment Ibid. 73, & 74. be at once, whether now or before time, there an assize of novel disseisin lieth, and not this writ. 5 A homine replegiando, for one imprisoned,, F. N. B. 66 ●. or in prison detained where he should not. As being bailable, or claimed as (a) F. N. B 66 f. a villeine, or in (b) F. N. B. 67. ward, where in deed he is frank out of ward. 6 A replevin for goods or chattels distreined, F. N. B. ●8. d 4 H. 6. 30. which according to the nature of the plea ministered 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 rend behind, etc. then it becometh real, etc. and as strong as a praecipe quod reddat, 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. And this may be both by Writ and F. N B. 70. ●, b. plaint in any Court baron, as well as in the County Court. And being by plaint, F. N. B. 70. b. though in the County Court, it shall not proceed if any thing touching the freehold come in question, as if the defendant avowing for damage pheasant, the Plaintiff justifieth by reason of Common of pasture. Upon the pluries not served by the Sherifr, his power is determined, and the 2 H. 7. 6. parties shall pled in Bank. Statutes. Marleb. 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 judgement.) 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 return, the distress shall remain yereplegiable. 1. & 2. Ph. & Ma. cap. 12. Every Sheriff of a Shire (being no City) shall at his first 4. Deputies to make Replevins. County day, or within two months after receipt of his patent, proclaim in the Shire town four deputies at the lest, dwelling not past twelve mile one from another, which in his name shall make replevins as the sheriff might do himself. 7 Many of the actions that went before, both for Real things to be done as, (a) F. N. B. 151. b. Ibid. 123. a. Ibid. 123. f. Ibid 135. ●. Ibid 148. b. Ibid. 152. b. Ibid 119. g. Ibid. 138. b. Ibid. 117. b. Ibid. 145. c. Ibid. 85 f 86 g. In Ibid 86. For they are as a● Commission in effect. And the Sheriff may determine them by Enquest, according to the course of the common Law. Consuetudinibus & seruitijs: secta ad molendinum. Quod permittat: mesne: Dower, unde nibil habet: and also personal actions, a● Annuity, debt, detinue, account, coue●●, trespass, to what sum soever, may as well be brought in the County by justicies, as to be returnable in the Common place. CHAP. 20. Of mere commissions. Mere commissions are these that follow: Being all of them to be F. N. B. 110. b. directed to choice persons, such as it shall please the King. Oyer and terminer to hear ● determine upon some heinous trespass committed, as rebellious assemblies, insurrections, Ibid. 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 justice's errants. In these and such like commissions lie 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 F. N. B. 111. b. to signify their association. That (a) F. N. B. 111. d F. N B. 185. ●. in an assize. to the party is patent. The (b) F. N. B. 111 d Fit. Nat. B. 111. c. 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 (c) F. N B. 186. ab. to the party, close (d) F. N. Br. 221 to the justices. Ad quod damnum to inquire what hurt it may be to the King, or country, 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. Perambulacione facienda to inquire of the Old Nat. Br. 74. bounds of two Signories or Towns, where an encrochment by little and little is supposed to have been made. And this must be by the mutual assent of both the Lords. But if such encrochment were at once, whether now or heretofore an assize of novel disseisin lieth, and not this writ. CHAP. 21. Of Plaints. SO fare of Writs, it followeth to speak of Plaints and Bills. Both being in such Courts as hold plea without original writ. A plaint is in matters that concern common pleas. A plaint of Trespass brought in a court baron, whether manor, hundred, or county 22. Ass pl. 64. Br. jur 98. 14 H. 8. 15. Ibid. Court, shall not proceed if the freehold come in question. But a suit by writ in the County Court may. Therefore in such case upon a plaint in the County Court, the party hath no remedy, but a writ of Trespass vicontiell, and thereby the Sheriff may determine the issue, though the freehold come in debate. But that is no remedy in other Court Barons. CHAP. 22. Of Bills. A Bill is in pleas of the Crown. Stamf. 64. As an appeal of felony, maim, tape, etc. may be by Bill before any (a) Stamf. 55. ● one Coroner of the Shire, as well (b) Stamf. 64. as by writ original, finding first sureties to the Sheriff. One whose attendance is necessary in 6 E. 4. 3. any Court, as the officers and Attorneys there, shall sue and be sued in form of plaint, without writ original, which is called a Bill privilege. But albeit the Cook or Butler of a judge, or other officer of a Court shall have their privilege if they be suedels' where, yet a Bill lieth not against them: But against the officers and Attorneys it doth, for they are members of the Court, and their attendance necessary. And they shall be foreiudged of their office, if being demanded to do them they make default. But an Attorney in the Kings 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. 23. Of a Quo warranto. Prerogative. THe King hath a special me 〈…〉 10 H. 7. 14. suit for trying of the right ●● franchise usurped upon him, called ● Quo warranto: and is to be brought before the justices of Eyer. Therefore here the allowance of a franchise before them, bindeth the King Otherwise 〈…〉 upon a suit in the common place. Statutes. 18. E 1. A Statute of, Quo Warranto. Quo warranto in justice's circuits. 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 public 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, than the K. shall have a summons for them to appear before the King, or his justices of assize: at which day if they come not, nor be assoygned 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 departed from the same Shire, they shall be adjourned unto short days, and have reasonable delays according to the discretion of the justices, a● it is used in personal actions. CHAP. 24. Of Offices for the King. THese are the suits that every one may have. Enquirie for the King is when matter for the King is found by a jury called an inquest of office, whether the enquiry be by officers themselves, as Sheriffs, Eschetors, Coroners, etc. virtute officij, or virtute brevis, or commissions to them directed. And here the just number of twelve is not of necessity, but may be sometimes F. N. B. 1ST. ●. more or less. An enquiry is an office or presentment. An office which findeth matter to entitle 21 E. 3 2. the King to some possession, for an office is a title for the King, but finding but for a common person it is but an evidence. If such an office be found for hereditaments, and the King entitled by matter enfait, 3 H. 7. 3. that is to say, by no other record but that only, as if the office found that I. S. the King's Tenant died seized, the party may either traverse, to say, I S. was not seized, or confess and avoid it by saying, that himself was the King's Tenant, and disseised by I S. and so I. S. died seized being in by disseisin, etc. And this is called a monstrans de droit. But if the office entitle the King by matter of record, as that I. S. was attainted of Treason, and 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 I. S. to be so seized, nor have his monstrans de droit to show that I. S. did disseise him; etc. or that he enfeoffed I. S. upon condition, and that I. S. broke 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, as to say, nul tiel attainder. j that 4 H. 7. 7 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 itself, a man may traverse it though the K. be entitled by double matter of record. As being found by office that I. S. was attainted of Treason by Parliament, & his lands forfeit, and that 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, and adnull the ancestors attainder, his heir shall have this by way of plea without petition. If the office be for personal goods, the 4 E 4. 24. party may always have a traverse or pled any matter unto it, and so have his goods again, unless the escheator have accounted (a) Ibid. 34 H. 6 5. 4 E. 4▪ ibid. for them. And that though the office found the King's title to be by matter of record: as that I. S was attainted of felony or treason, or outlawed in debt or trespass, & was at the time possessed of a horse, or of such and such goods, wherein 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 14 H. 7. 23. 25. office: but an office finding that the king's tenant hath ceased, or his tenant for life committed Stamf. Prer. 54. waste, vesteth no possession in the K. for his entry is not lawful, but he is driven to sue a scire facias. So if an office entitling the K. to things not manuel, that is to say, where of no profit is to be taken, forthwith until they fall as a rent common, etc. this vesteth no possession till the day. Also he shall be answered of all the mean profits from the time of his title. As upon an alienation in mortmain found by office, from the time 41 E. 3. 11. 11 H. 4. 5. of this a lienation appearing of record, upon the king's letters parents anulled for insufficiency from the very time of the grant. An escheator here may found offices ex officio, 4 E. 4. 24. ● H. 4. 5. as well as virtute brevis, or Commissionis. But not of outlawry of felony, or such high matter of record without warranty paramount and certification by writ of record Those virtute brevis o● commissionis are returnable in the Chancery. The other properly in the Exchequer. But may also be returned into the Chancery. Statutes. 36. E. 3. cap. 13. Stat. 1. No Escheter shall take inquests of office but indented between the jurors and him, else they are voided. 33. H. 8. cap. 22. Set virtute officij only to find an office of lands holden of the King of v. l. value or above, pain v. l. 8. H. 6. cap. 16. Take inquests but of people impanelled by the Sheriff, and those inquests must be returned within a month after the taking. Pain xx. l. So of Commissioners. 23. H. 6. cap. 17. Take inquest virtute brevis, but within a month after delivery of the writ, his fees are set down. 1. H. 8. cap 8. Made perpetual. 3. H 8. cap. 2. Sat unless he have lands, etc. to the clear yearly value of xl. Marks. Pain xx. 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. 1. 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 King's Bench to be tried. 36. G. 3. cap 13. Stat. 1. Upon a traverse or Monstraus' de droit, the Chancellor may let him (that tendereth it) the Lands holden to farm finding surety to do no waist. 8. H. 6 cap. 16. They shall not be let to farm till the inquests 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 voided. 18. H. 6. cap. 6. All letters patents made of lands or Tenements before office found or returned shall be voided. 1. H. 8. cap. 16. The party shall have 3. months liberty after the office returned to tender his traverse. 2. E. 6. cap. 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 estate 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 is found holden of the K. immediately, and that it should descend or come to an heir within age, which is or aught 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, and another found heir to the same person in another County, or when one untruly is found lunatic, idiot, 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 praemunire is seized of lands, whereunto another hath just title of an estate of freehold. And although the King be entitled in such ●nds by double matter of record. Upon every such traverse a Scire facias ●hall go out as in traverses or petitions be●ore, and the defendant therein have the ●me advantage that they had in a Scire fa●ias in a petition before. In every traverse pursued by virtue of ●his act, where by the Common Law the ●artie were driven to petition, two writs of ●earch shall be granted. After judgement ●pon a traverse sued by virtue of this act, if ●t appear by matter of record that the king ●ath a former title, the same shall be saved ●nto him. Artic. super chart. cap. 19 When the Es●hetor or Sheriff seize land into the King's ●and without cause: upon ousting of the King's hands the party shall have the mesn ●ssues restored to him. 20. E. stat. De Escheatoribus If the Esche●or by Writ out of the Chancery seize land ●nto the king's hand, and after upon inquisition no title is for the King to have the custody. An ouster lemain shall be awarded ●or the party out of the Chancery. Provided, that if any thing afterwards ●ay be found in the Chancery, Exchequer, ●r King's Bench for the King, a Scire facias ●hall go out against the party. And if the King have right it shall be answered of all ●he issues from the time of the Eschetors' ●irst seizing of the land. 23. H. 6. cap. 17. In a Scire facias upon ● Traverse against any pattentee no protestion allowable Upon an office found virtute 14 E. 4 5. 6 H. 7. 15. officij, whereby the King is entitled ●● ones wardship, the heir shall never have livery, that is to say, the land delivered 〈◊〉 of the King's hands. But upon a perfect office (a) Stamf. prer. 52. virtute brevis, or commissionis, if it b 〈…〉 (b) F. N. B. 235. c. special writ or commission, not a gener 〈…〉 one to inquire 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 〈…〉 ding of an office for the King, then for the having of the land out of the Kings h 〈…〉. Those for the finding of an office are, 1. ● (c) F. N B. 252. Diem clausit extremum, Mandamus, & Devenerunt, to inquire what lands holden of the King, and what of other, the ancestor 〈◊〉 seized of the day of his death, the value, the day of his death, who is the next heir, 〈◊〉 of what age. The Diem clausit extremum is to be ●●ed within the year after his death. 14 E. 4 c. F. N. B. 253. c. Statutes. 14 E. 3. cap. 12. Lands by ward in the King's 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 tender till the Infant's age, as other will without fraud. The Mandamus after the year. And Stamf. 52. F. N B. 253. ●. F. N. B. 253. b. Stamf ibid. Fitz ibid. 4 ●. ● 24. ●ere it must further be enquired who took ●e profits. The Devenerunt is when the ●uncester died in ward to the King. 2. a ●uae plura, melius inquirendum, & Datum est ●obis intelligi, upon defect in offices found by virtue of such writs or commissions, but ●hese shall never go out upon an office ●ound virtute officij. Quae plura upon levying F. N. B. ●●5. out of any land in those offices. Melius inquirendum upon any other de●ect in the office, as if the office were insufficient (a) E. 4. 24. or uncertain, or the (b) F. N. B. 255. land of greater value, then is found in the office: or ●eld by other services, or the Tenant seized of other estate. Datum est nobis intelligi, upon an office finding 2 H. 7. 2. 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 bore surmise. Those for having the land out of the King's hand are an Aetate probanda, and F. N B. 257. a writ of Lyverie. Aetate probanda is to inquire whether he be of full age, or not, before which time he is not to have livery. A writ of Lyverie is after a perfect office, Stamf pr●. 52. (for no livery shall be upon an insufficient office) finding a tenure in chief whether by knight's service or soccage: and whether F. N. B. the heir then be within age, or of full age. But he that holdeth of the King by knight service, but not in Capite, shall not sue livery. 32 H 8. Br. livery et ouster lemain 62 But because none can enter upon the King, the heir (if he were within 〈…〉 when he cometh to his full age shall 〈…〉 an ouster lemain, to have all the la●●●●●liuered to him at once by the King, which (a) 44. E. 3 25. is called a livery, for if this be sued and ●● mention made of an avowson, all shall ●● reseised, and the King answered of all t●● mesne issues. And a livery must be entire, and not by parcels. The manner thereof i● (b) 2 H. 7. 12. this, when the heir in the King's Ward is (c) F. N. B. 156. 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. cap 4. The rends given to them that sue livery when the rend day comes, how soon soever it come after the livery. 32. H. 8. cap. 46. The Court of wards ●●cted to be a court of record, officers appointed: a Master of wards that shall keep the Seal, an Attorney, a Receivor, two Auditors, two Clarks, a messenger and an usher. All wards with their lands, etc. shall be in the ordering of the Court. They may cell and grant the K. wards or ●heir lands during their minority, etc. The same to pass by the King's Bill as●gned, which shall be a sufficient warrant ●o the Lord Chancellor for the great seal. They may (without the King's bill assigned) make good sales of underwoods', ●nd appoint timber for necessary reparati●ns of the ward lands, and make leases duong their minority, etc. Widows and the fines for their marriage are in the survey of this Court. So are Idiots and their lands, and the Court may let and set their lands. The grantee of the custody of Wardship ●f any of the King's wards shall sue forth ●is patent within four months next after ●e assignment of his bill, else the bill and ●ffect thereof to be voided. Process shall be made out of this Court ●gainst wards intruding upon their lands ●efore livery, or ouster lemaine under the ●reat seal. With many other matters concerning ●he authority of this Court, and the offices ●hereof. 33. H 8. ca 22. The office of the M. of the ●uerie united to the Court of wards. A survey or 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 ●f this Court. None that hath land over the clear year● value of v. l. (otherwise it is where the land is under that value) shall have livery before inquisition or office, by the King● Writ or Commission, which shall not pa●● 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 appoint days of payment, etc. and their Bil● for livery shall be a sufficient warrant ●● the Lord Chancellor. A general livery may be sued where the yearly value of the land exceeds not 11. l● but such general livery shall not be without warrant from this Court. The pa●●●● for livery may be sued forth within thr●● months next after the assignment of th● Bill by the King or his Court. Two being found heirs by one and ●● 1 H. 7. 28. same title, whether twinlings that a● males, found heir by oneself same office or divers men by several offices found heirs to the same ancestor, and by the same title (for if one office found that the K● gave land to A. and the heirs of his body, and that B. is his Cousin and heir, and another office findeth that the gift was in general tail, and that four daughters are 〈…〉 heirs. There must be a Traverse and no enterpleading, for they claimed not by o●● ancestor and title) the King shall not 〈…〉 livery till by enterpleder the truth ●ee ●●●cussed 5 E. 4 4. at his full age that was found 〈…〉 first: for if A. of v. years is found heir ●● the king's 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 ●hen they must enterplead. And in every enterpleading, an office must be found for both. And if one be found heir of full age, ●nd after another within age, the enterpleading shall not stay till the full age of the second, because the other was found heir first. Among coparceners the King upon livery shall make partition. And that is for Stamf prer. 58. 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, than the King should loose his prerogative in those lands for ever, because ●hey that have them when they shall dye ●old no lands of the King in Capite. And ●herefore in the writs of livery there is a proviso, that every one shall have in her purpart, parcel of the lands holden in ●hiefe. CHAP. 25. Of Presentments, or enditements. A Presentment is an enquiry finding some offence against the King, which is also called an indictment. Therefore it is as it were the King's action, whereupon the party shall be arraigned, or put to answer by the King: and tried by another jury, which (in case ●● felony or treason) we call the jury of ●● and death. Every strong suspicion of such ●●●●fence, though it be in case of felony, 〈…〉 ring of record hath the force of an 〈…〉 ment: as in an action of trespass of 〈…〉 carried away, if the defendant pled 〈…〉 31 E. 1 Indite. 31. guilty, and be found guilty as a fellow: in 9 E. 4. 10: an appeal of murder, etc. if the Plaintiff after declaration be non suit. But so is not 2 E. 3. 28. the Sheriffs return, as where he returneth upon one an escape of felony, etc. Without which the King can have ●● 7 E. 3. 324. suit upon a wrong done, principally to ●nother: but done to himself he may. For (a) 12 H. 7. 18. Constables and Borsholders are Consernators of the peace at the Common law. preventing of certain of th●● offences, that is to say, trespasses to the ●●die and felonies, and committing them 〈◊〉 offend to prison till they may be indicted, and so duly punished, as (b) 22 E. 4. 35. to arrest him that maketh an affray and sand him to the next gaol, or upon reasonable cause (as if it be night time, or there be that would rescous him, etc.) keeping him in the stocks till he can safely bring him to the gaol: o● to (c) 9 E. 4 26. arrest him till he found surety by obligation: every hundred hath his Constable. And every several tithing within the h●●dred hath his Borsholder. The conse 〈…〉 of peace in an hundred is called a Constable, or high Constable: In a Tything, a petty Constable, Borsholder, Headborough, Thirdborough, Boroughhead, Tything▪ man, or chief pledge. 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 barrettors 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 King's commission, and at what time need shall be, the same with other wise and learned in the Law shall be assigned by the King's 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 distrain evil doers, riotors and barrettors, 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 inquire of all those that have been pillars and robbers in the parties beyond sea, and be now come again, and go wand'ring and will not labour as they were wont in times past. And to take and arrest all those that they may found by indictment, or by suspicion, 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 mainprize for their good abearing 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 King's 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. cap. 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 Saint Michael, in the first week after the Epiphanie, In the first week after the clause of Easter, and in the first week after the translation of S. Thomas the Martyr, (which is the 7. julij) and more often if need be. And that the same justices hold their Sessiions throughout the whole Realm of England in the same weeks, every year from hencefotth. 2. H. 8. ca 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 King's Council, without taking other persons dwelling in foreign 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 King's high Stewards of the lands and seignories of the Duchy 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 xx. l. by year. This extendeth not to Towns corporate, Boroughes, etc. 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 Sherifewicke. Any (a) 9 E. 4. 26. man suspecting another of a felony committed or but (b) 9 E. 4. ibid. intended, ●● where one lieth in wait to rob the people that pass by, and draweth his sword upon one willing him to deliver his purse, etc. may arrest him (c) 20 E. 4. 6. so as thereupon he commit him to the gaol, as (d) 11 E. 44. common voice and fame that he did the fact, or being present where a murder was done, and found with a sword 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 rob me, and I. S. say I shall not, this is good cause to suspect I. S. as accessary: and what is sufficient cause of suspicion, and what not shall be tried by the justices. But (a) 9 E 4 ibid. neither can any man arrest one for a Trespass, unless it be the Constable, nor for a felony, except (b) 11 E. 4. ibid. 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 stolen: for to say, that divers 27 H. 8. 3. beefs were stolen, and because he suspected I. S. to have stolen six beefs, he did arrest him, is not good, without alleging expressly, that those six beefs were stolen. With enditements of Trespass, information upon penal Statutes (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) tried upon the point of the writ shall not prejudice him that will sue bona fide. 31. Eliz cap. 5. All informations and enditements where the forfeiture is limited to the Queen only, must be brought within two years after the offence committed, 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 voided: where a shorter time is limited in any penal Statute the suit must be brought within that time. 27. Eliz. cap. 11. Information for the Queen upon Statutes of Tillage, shall be brought within v. 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 forrestallers, etc. must be brought into the county where the offence was indeed done But officers of record using to pursue informations by virtue 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 King's Bench, Common place, or Exchequer, where he is bailable, 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 denizens. 18. Eliz cap. 5. made perpetual. 27. Eliz. cap. 10. An Informer shall not compound or agreed 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 judgement, than he shall tender 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. Enditements of the death of a man are 35. H. 6. 27. to be taken before the Coroners. So is it not of any other felony, for the Statute 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 join with the Kings Coroner in enquiring of the death of a man with in the King's house. 33. H. 8. cap. 12. The Coroner of the king's house shall inquire alone without the Coroner of the Shire, by a jury of the yeomen officers of the King's 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 〈◊〉 Single, which is by the possessions 〈◊〉, (land or goods) or only by the person. That by the land is of two sorts. First summons and grand cape in a praecipe q●●d reddat. The Summons is a warning of the tenant in his land, but not by his goods, 〈◊〉 by a rend service, rend charge, rend seek, or a Common which he hath, for there the land is another's by certain sommoners, two at the lest. The Summons upon ●● action brought against one as heir, 〈◊〉 13 ●. 2 judg. 170. be in land that did descend, otherwise it is in any land. If it be to recover the freehold of 〈◊〉 ●7 H. 6. 26. 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. A grand cape is a pr 〈…〉 Old N. B. 177. 50 ●. 3. 16. to take the land into the King's hands by the view of lawful men, called thereupon Veyors, as the other are Parnors, with a summons of the Tenant to answer (a) 38 H. 6. 33. as well to his default, as to the demaundants action, and therefore it is called a grand Cape. Therefore here the Tenant is suffered Old N. B. ibid. to 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, etc. And the King shall have the land to his S 〈…〉. P●●r. 84. twne use, the Sheriff being accountable of ●e issues thereof from the default, till judgement for the demandant. Statutes. 31. Eliz. cap. 3. Upon a Summon in a real action fourteen days before the return, a proclamation of the Somons shall be on a ●onday immediately after divine service, at ●he door of the Parish Church where the and lieth, and returned with the names of ●he Sommoners. And till that done, no Grandee cape shall go out, but an alias & pluries as the case requireth. If the Tenant be returned summoned, 22 H 6. 41. where in deed he was not, the writ shall abate. Secondly, it is summons & resommons, or another like summons in a mortdauncestor, juris utrum, and an assize of darrein presentment. By the goods, as in assizes of novel disseisin and nuisance, where the original process is a Pone per vadios & saluos plegios. A Pone per vadios & saluos plegios is a process to attach the defendant by certain of his (a) 35 H. 6. Br. Attachment 20. proper goods not borrowed, or in pledge unto him, being mere personal chattels, neither a (b) 7 H. 6. 10. chattel real, as a ward, etc. nor (c) 27 H. 6 2. parcel of his freehold as a clod of earth, etc. which he shall (d) 9 H. 7. 9 forfeit if he appear not. (e) ibid. And the Sheriff may take those goods with him, or leave them with the party at his pleasure. But whethersoever he do, the property is no● out of the party till he make default. The original process by the person is ● Capias (which is process to imprison him) than an exigent or solemn (a) Br. per Stamf. 15. demand ●● five several County Courts immed 〈…〉 following one another. Therefore (b) 32 E. 3. Exigent 14. no Allocato comitatu lieth if a County be holde● after an exigent returned, and for not app●●ring, judgement, to be out of the protection of the King and his Laws, which we call outlawry. The (c) judgement whereof is to be given by the Coroner in the f 〈…〉 County. For (d) 35. H. 6. 6. Br. Exigent 24. 11. H. 7. 26. at the Common Law there is no outlawry, but where the writ is vi & armis, as in trespass, conspiracy, felony, etc. And the reason why it lieth there, is, because they are acts founded upon the sole tort of the defendant. And this is in m 〈…〉 felony and treason. Statutes. 1. H. 5. cap. 5. In every original writ of actions personals, appeals, & enditements, in which the Exigent shall be awarded: to the names of the defendants in such writs, original appeals and enditements, additions shall be made of their estate and degree or mystery, and the Towns, Hamlets and places, and the Counties whereof they were or be in which they were or be conversant: Otherwise all outlawries thereupon pronounced shall be none. And before these outlawries pronounced, the said Writs and ●nditements shall be abated by the exception of the party omitting the said additions. 6. H. 6. c●. 1. All Exigends and outlawries ●pon enditements in the K. Bench of felony ●nd treason shall be voided, if before the exigend awarded, a Capias be not directed to ●he Sheriff of the County, whereof they be ●amed in the indictment, having six weeks space (or larger, by the discretion of the justices) before the return. 8. H. 6. cap. 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 returnable, before the same justices, etc. containing the space of three months (where the Counties be holden from month to month) of four months: (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. cap. 6. The like is to be observed when any such indictment or appeal 〈…〉 ken before justices of peace, or other ●●uing power, shall be removed before t●● King in his Bench, or elsewhere by C 〈…〉 rari or otherwise. 6. H. 8 cap. 4. Upon every exigent a writ●● make three proclamations (returnable 〈◊〉 of the return of the exigent, and the p●●clamations to be made, two in the full County Court, the third at the genera●● Sessions) shall go out to the Sheriff of every other County (viz. than that where th● action is brought) where the defendant is named to be, or late to have been; if the Kings writ run there: otherwise to the County next adjoining to that where he is so named. Being named late of London ●● Middlesex, the writ of proclamation shall go out to every other County where he is abiding, time of the exigent awarded. Every outlawry to the contrary shall be avoided by plea. 27. E. 3. cap. 2. A writ of Idemtpitate 〈…〉 nis given to those whose lands, goods, or chattels be seized by any officer, surmising them to be outlawed (where they be not) because they bear such names as those that be outlawed, for default of good declaration of the surname. 9 H. 6. cap. 4. Such an Idemtpitate 〈◊〉 given to their Executors. If the Exigent be returned not fully served without any folly in the Plaintiff, as (a) 22 E. 3. 11. where the defendant after demand at ●o Counties rendereth himself in Court, ●d upon mainprize found hath a Superse●eas, and yet appeareth not at the day. But otherwise it is upon a (b) 38 E. 3. 1. Supersedeas by another person bearing the same name, or in ●se where no (c) 14 E. 3. E●. 17 more Counties but four ●n be holden between the delivery of the ●rit to the Sheriff and the return, for it is ●e Plaintiffs own folly in the first case to ●ut no difference between their names, ●d in the second to take so short a time. ●hough it be in the (d) 17 E. 3. 43. hustings of Lon●on which are holden uncertainly: the plaintiff bringing a new exigent which we ●ll an Exigent de novo (e) 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, ●r allocato hustingo, if it be in London, where ●heir hustings are as the County Courts. Outlawry dishableth him from suing a●y Lit. 43. action. Statutes. 5. E. 3. cap. 12. In case where the Plaintiff hath recovered damages, & he against whom the damages be recovered, is outlawed ●t the K. suit, no charter of pardon shall be granted, except the plaintiff be satisfied for ●is damages. When one is outlawed by process appearance no such charter shall 〈…〉ted, except he yield himself before 〈…〉 stices' from whom the exigend issued; ●● shall cause the party to be warned to appear before them at a day. Where 〈…〉 the Plaintiff appear, they shall pled 〈…〉 the first original, as if no outlawry ●● been. If the Plaintiff appear not (and ●● warning be duly witnessed) he that 〈…〉 lawed shall be delivered by virtue of ●● Charter. 31. Eliz. cap. 3. Upon every extent in a ●●sonall action a writ of proclamation 〈…〉 go out of the same Court to the S 〈…〉 the County, where the defendant at t●● time of the Exigent shall be dwelling Whereupon three proclamations shall ●● made; one in open County Court, anotta at the quarter Sessions, the third one m 〈…〉 at the lest before the Quint' exact at ●● door of the Parish Church where the ●●fendant shall be dwelling at the time of t●● exigent, upon a Sunday immediately after equine service. All outlawries otherwise sh●● be voided. But before reversing of any such outlawry in this respect, the defendant shall put in bail, not only to answer the plaintiff in ● new action, but to satisfy the condemnation, if the Plaintiff begin his suit within two Terms. Prerogative. By outlawry all his chattels, whether ●eall as a (a) 9 H. 6. 20. term for years (and there●re there the King may seize the land it ●fe, and blow and sow, and occupy it as ●e term or might) wardship, etc. or per●nal, as ones (c) 30. H. 6. 20. goods (the property wher● is presently in the king, and he may have ● detinue against every man that hath a possession of them) profits (d) 9 H. 6. 20. of land, ●herein he hath a freehold or inheritance, ●iz. rents, corn, mannurance of his pasture ●et in this case he cannot, &c. seize the land ●selfe, nor occupy, plough, or sow it, or grant ● away. And if the party so outlawed make ● feoffement, this feoffement is good, and ●he King after that shall have the profits ●o more.) But not (a) 20. H. 7. 13. a furnace table fixed ●pon the land with posts, boards, doors, windows, and such like annexed to a freehold are forfeit to the King, not only those in possession, but even such as he hath a right unto, as debts, (viz (b) 50. ass pl. 1. 19 H. 6. 47. due by specialty, but not (c) 16. E. 4. 4. 50 ass pl. 1. 9 El. Dy. ●62. 3. E. 3. Cor. 343. contr. Stanf 188. b. by a simple contract, for the reason supra fol.) matters in (d) So ass. pl. 5. 28 E. 3. 92. account, (e) Stamf. 188. b. goods taken away, etc. But not damages which he is to recover, as by reason of (f) 28. E. 3. 92. trespass done to his land, (g) Stamf. 188. b. battery, false imprisonment, or such like. In case of maim there must be three Capias, two in felony, as stealth, robbery, and burglary, one duly in the death of a man, be it murder or manslaughter, and high Treason. Statutes. 25. E. 3. cap 14. The second▪ Capias i 〈…〉 of felony must be returned three w 〈…〉ter. In case of Felony and high 〈…〉 they that tarry the Exigent, though t 〈…〉 22. ass. pl 81. they tender themselves, forfeit th' 〈…〉 tells. Mixed, is that which is so by his 〈◊〉 as for want of goods he may res 〈…〉 person. As first in all Praecipe quod f 〈…〉, 22. H. 6. 38. 34. H. 6. 49. and other personal praecipes, and in personal Sifecerit te securums, not being 〈◊〉 the peace, and likewise in all Insti 〈…〉 F. N. Br. 92. g. 2. H. 4. 25. vicontiell writs, the process is a S●●mons by the defendants goods, an 〈…〉 ment or Pone per vadios and distress 〈…〉 nite. Or if upon the Summons a Ni●il ●● returned, that is to say, that the party 〈◊〉 21. H. 6. 56. nothing whereby to be summoned, th' 〈…〉 continual Capias. Distress infinite is a process to 〈◊〉 him continually after, till he do appears ●● certain of his goods, and profit of his lands, or as we use to say, issues: which 〈◊〉 loseth if he appear not. Statutes. Westm 2. cap. 37. No distress shall be but by Bailiffs sworn and known. Westm. 2. cap. 39 The plaintiff may anerre that the Sheriff might have returned greater issues, and thereupon shall have a ●udiciall writ to the justice of assize to inquire of what & 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 bailiffs of franchises as well as the Sheriff. Upon this distress must be returned in ●●●ues the value of all his lands from the Teste of the writ until the day of the return. As if his land be worth xii. C. by the year, and a month's space between the 24. El. Fairfaxes case in the Common place. 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, etc. the land is charge able into whose hand soever it come after. As if issues be returned D. Stud. per Br. issues 23. upon Tenant in tail, tenant for life, or a man seized in the right of his wife, the land shall be charged after their death: or 22. H. 6. 4. if an Abbot loose 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, the beasts of any stranger coming upon the same land may be distreined for the issues 5. H. 7. 1. Br. 〈◊〉 41. lost. In such process ●● these where 〈…〉 ment or distress should go out, 〈…〉 daunt be a 〈◊〉 clerk he 〈…〉ned by his person, or 〈◊〉 if 〈…〉 lay see else. as if the Sheriff re〈…〉 Clerical been fieat●● non hab●●● 〈…〉 Process shall go out to the 〈…〉 make him appear by the ●●●es of 〈…〉 nefice, which is called a venire f 〈…〉 ricum. A Capanas lieth not here against 〈…〉 Br exigent. 72. It ●● error if he be outlawed. 26. H. 8. 7. of the Realm. But against a Knight 〈…〉eth, for a man may be a Knight 〈…〉 freehold: So cannot an 〈…〉 common e●endement. 〈◊〉 if 〈…〉 thing in the County where he is 〈…〉 party shall have an Elegit sure 〈…〉 such a County where he hath assets. In a replevin in the County 〈…〉 it by writ or plaint, if the go 〈…〉ed F. N. B. 73. & 74. away, so as at the Tenants 〈…〉 cannot be restored, As if he that 〈…〉 drive them to a Fortlet or Castle, or 〈…〉 the County, etc. whereby the Sheri 〈…〉 turn upon the pluries that they are 〈…〉ned, process of with e●●●am lieth, 〈…〉 for the plaintiff to have of the others 〈…〉 till restitution of his own. Statutes. Westm 1. cap. 17. The Sheriff or Bailiff may take the power of his County ●● Bailiwick, and beaten down a Castle or 〈◊〉 ●here such beasts are enclosed, if he that ●oke them will not make deliverance. Secondly in Trespasses upon the case ●gainst the peace, and in all other trespas●es, 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 ●f the peace, as refusing to come at the King, being sent unto him with money to ●ide him in his war, and spoiling and wa●ting men's lands, goods, and chattels, and other unlawful acts doing, and so every contempt it is attachment: And if a Capias ●n these cases go ou● first, and the party be ●aken thereby, he shall be dismissed, because ●t should be by pledges, distress infinite, and upon a Nihil returned, a Capias, as before. Here for contempts a Capias lieth against Piers of the Realm, as for rescousing of one arrested by the course of the Law, etc. 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 outlarie. Statutes. Westm 2. cap. 11. Process of outlawry given in an action of account. 25. E. 3. cap. 17. Such process shall ●● made in a writ of debt and detinue of c 〈…〉 tells, and taking of beasts by writ of 〈…〉 and by process of Exigend by the S 〈…〉 as is now used in a writ of account. 7. H. 5. cap. 1. In writs to be purchased ●gainst those that forge or make 〈…〉 Charters or minuments, and them 〈…〉 claim or cause to be read, like process s 〈…〉 be made by capias and exigend, as in w 〈…〉 of Trespass. 19 H. 7. c●. 9 Like process given in actions upon the case sued in the King's Bench, and Common place, as in actions of Trespass and debt. 23. H. 8 cap. 14. Like process given in every writ of annitie as in an action of debt CHAP. 27. Of Counts. THus fare of the beginning 〈…〉 suit: The proceeding hath 〈…〉 parts, Count and pleading (which two are but one in pleading) 〈…〉 ther mean acts. A condition (annexed to an 〈…〉 11. H. 7. 22. freehold) cannot be alleged in 〈…〉 or pleading unless it be by deed: Be it ●● ●ersonell or real actions. But a condition ●nit to a lease for years, or grant of a wardship, 11. H. 7. ibid. Lit. 85. or other chattel Real may. Yet the Iu●ie upon the general issue (as ●ultor● nul disseisin in an assize) may found it if they william. ●nd thereby the party shall have aduan●ge of it. Count is a larger declaration for the ●me, place, quantity of the land, and other ●ch things of the substance of the original ●rit. And therefore in a formedon of four acres and Count but of one, all the Writ 8 E. 4. ●. 45. E. 3. 25. ●hall abate, for it is not pursued. In an appeal of murder, he cannot declare that the ●efendant traitorously killed him as he was ●oing to secure the King, in his wars ●ith xx. men in his company, etc. for the ●rit supposeth no treason. Statutes. 36. E. 3. cap. 15. Declarations shall be ●ood enough if they have matter of substance, though the terms be not apt. In real actions which are in the right but not in mere possessory ones) the demandant must allege the taking of the profits, we call it esplees, in the declaration. As in pleas of la●d, the taking of the profits ●f the land as errable, meadow, and pasture, etc. if of a pond, then by taking the ●ish there, as Breames, etc. In a writ of right ●f avowson, the esplees shall be laid in his 8. E. 3. 381. 26. H. 8. 3. Clarks taking the great and small tithes. In an assize of an office as of a filizarie, etc. seisin shall be alleged by the taking of ●. Mar. Dy. 114. 13. H. 8. 16. 19 H. 6 32. iiij. d. for making out a capias, or such like. In a quod permittat, by the taking of common by the mouth of his beasts. In a native habendo, esplees shall be alleged in the villeine, viz. in taxing him high and low at his pleasure, in making his profit of him; to drive his cattles, to carry away his dung, and to do all other kind of villeine service, Br. Esplees. 11. 21. H. 6. 22. etc. But in a writ of Eschete, in a writ of right sur disclaimer, and such like, which are founded upon the signory, and not upon any seisin of the land itself, no esplees shall be alleged. And these esplees where they are to be alleged, must be alleged 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 alleged in those other. As in a form on en descender the esplees shall 9 H. 6. 53. 50. E. 3. 1. be alleged only in the donee. 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 alleged both in the donee 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 dye, the issue in tail shall have a formedon en descender, and make no mention of the Tenant for life. And therefore the esplees shall be only alleged in tenant in tail, otherwise it is in the like case of a reversion in tail granted. In stead of Count, a plaint shall be made in assizes 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 Bar, replication, rejoinder, Surrejoinder, etc. must be 7. El. Ploy. 343. assered to be proved true. By saying in the plea, Et hoc patro natus est verificare, which we call an averment. But no averment need to be in avowrie, 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 acknowledging it to be true, although matter pleaded pass against him As if an infant bring an action of waste against his 48. E. 3. 10. garden, and appear by Attorney (which none should do but one of full age) if the garden take his nonage by protestation because he cannot pled it, it shall save him from all mischief. But in detinue brought by the Executor of A. the defendant cannot take by protestation, that A. made not the 4. El. Plo. 276. plaintiff his executor, for that is the very ground of the suit, and may be denied by answer, and issue joined upon it. And a protestation is but a saving to the party that taketh it, from being concluded of some matter alleged against him, whereupon he cannot join issue. Pleas are either of the defendant when he is first brought in to answer, or the mutual pleas of both. In a joint action against two or more: as in (a) 48. E. 3. 1. an action of debt. But otherwise it is in a writ of (b) 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 (c) 41. E. 3. 3. the suit be finished against him. As by death or outlary in a personal action, debt, account, or such like. An action by or against an Infant as heir, as (d) 48. E. 3. 33. a formdon en descender brought by him, or a writ of (e) 9 H 6. 46. error against him where his ancestor recovered; but (f) age 16. not where he cometh in of his own wrong shall not proceed till his full age, unless it be apparent that by proceeding he cannot be prejudiced. As in (g) 48. E. 3. 33. a formedon en descender by an Infant, if the tenant pled a warranty with assets against him, the parroll shall demur, for if he traverse the assets he should acknowledge the deed of warranty. But (h) 48. E. 3. ibid. if the tenant plead a recovery in avoidance of the estate tail, the parroll shall not demur: for there the Court shall pled for him. But (i) 12: E. 4. 17. Age 18. it shall not demur in a writ of entry sur disseisin by an infant, though the tenant plead a matter enfait, as a feoffement 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 jointenants 48. E. 3. 35. in fee, and the infant surviveth: in a praecipe quod reddat against the infant he shall not have his age. Statutes. Westm 2. cap 40. The husband's 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, great grandfather, in an action thereupon shall not have his age. Westm. 1. ca 46. In a writ of entry by the heir of the disseisee the suit shall not stay for his nonage, no more shall it for the nonage of the heir of the disseisor, if the disseisee bring his assize, and before the assize pass the disseisor dye. The like incorporations where the lands go by succession. But in a writ of dower an infant heir shall not 39 H. 6. 39 have his age, (a) 44. E. 3. 4●. 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 fitst writ. CHAP. 29. Of Pleas to the jurisdiction and Person. THe Defendants first pleas are dilatory, or to the action. Dilatory, which are before 〈◊〉 plea in bar. When an action is brought against many, they must join in the plea ●● 12. H. 7. 3. they pled 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 g 〈…〉 dead upon the matter itself of the suit. And are in disability or abatement. Those in disability, are to the jurisdiction or Person. Bracton. Both which must be before the count made. To the jurisdiction, when it is alleged that the Court aught not to hold plea of it. To the Person, when it is alleged that the Plaintiff aught not to be answered, as 3. H. 6. 40. Lit. 44. if he be outlawed, excommunicated, etc. In which latter case the suit shall be put without day, only till he be absolved. CHAP. 30. Of Pleas in Abatement. THose in abatement are for any fault in the first matter of the suit, for which cause the defendant may have oyer of any thing tendered by the plaintiff, and not being parcel of the record, as of the writ, condition, etc. Pleas in abatement are to the Count first, and then to ihe writ, for after pleading to the (a) 30. E. 3. 20. Count or to the (b) 4. E 3. 166. plaint in an assize, a man may plead unto the writ, but (c) 4. E. 3. 134. 135. not to the Count after plea to the writ, but (d) 24. E. 3. 47. 35. to the matter of the Count he may. And among pleas to the writ, exceptions that arise upon the view of the writ 3. E. 3. 70. are to be pleaded before those that are foreign, or dehors the writ as non tenure, several tenancy, etc. Pleas to the Count are for insufficiency, variance from the writ, etc. Pleas to the writ are for default of form, false Latin, etc. By waging of Law of non summons in a praecipe quod reddat the writ shall abate. 22. H. 6. 41. In assizes of novel disseism and nuisance, in appeals of felony and juris utrum Stam. 82. ● of an assize. F. N. B. So k of a juris verum also. 1. E. 4. 4. 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, etc. and if that be not found, then that no Tenant of the freehold is named in the Writ, etc. So in an appeal of felony, whether the same matters be of several natures (that is to say) one triable by record, the other by the Country, 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 Country, as that his name is William, where he is named in the appeal john, and also that there is no such Town, etc. or that the party whom he is supposed ●2. E. 4 39 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 (a) 38. E. 3▪ per 46. E. 3. 14. false Latin, non (b) 46. E. 3. 14. summons of the Sheriff, (c) 32. H 6. 24. joyntenancie, and such like: but not for non (d) 33. H. 6. 3. tenure, or (e) 33. H. 6. ibid. 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 accounts, shall have all advantages of the former, for he shall recover (f) 9 E. 4. 5. costs for the first suit: the (g) 2 H 4. 21. defendant being Executor shall be charged with the assets which he had day of the first writ. (a) 46. E. 3. 14. Being tenant day of the first writ, he shall not plead non tenure, being (b) 41. E. 3. 4. sole tenant than he shall not plead joyntenancie: being (c) 43. E. 3. 16. joynttenaunt, th●n he shall not plead several tenancy. But no writ by journeys accounts lieth by or against any other than the self same parties, and in the same Court that the former was: for (d) 4. E. 6. Br. journeys accom. 23. if the Plaintiff in a several action dye, his executors cannot have an action by journeys accounts. And (e) 7. H. 6. 16. ●3. if two coperceners 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 (f) 14. H. 4. p●● 7. H. 6. 34. the Tenant in the praecipe die upon a writ of dower brought, or such like, no writ lieth by journey's accounts. But (g) 7. H. 6. 23. upon the death of one of the joint-tenants in a praecipe quod reddat, where the other hath all by survivor it doth: lastly, if an assize of fresh force be abated in the franchise, a new assize by journeys accounts cannot be in the Guild hall before the justices of assize. CHAP. 31. Of Oyer of the writ or bond, etc. view and prayer, voucher, garnishment, Enterpleader to the Writ and sanctuary. Foreign advantages are delays without exception to any thing. ●● in all actions, oyer of the writ, etc. In real actions, view, aid, prayer, and voucher. View is in real actions of the thing demanded, or of the land whence it cometh, Stat. West. 2. c. 48. from henceforth view shall no● be granted, but where it ●● necessary, etc. showeth that it did lie in those cases at the common Law. And this view must be demanded before any plea in bar, &. may be after pleadieg to the writ: for though one pled a plea that goeth to the action (as that the plaintiff in a writ of dower is an alien) yet if he conclude to the writ, he may have view after 3. H. 6. 55. when it is so necessary as without view the defendant cannot well answer. Statutes. Westm. 2. cap. 48. From henceforth view shall not be granted but in case where the view is necessary, as if one loose land by default, and he that loseth, moveth a writ to demand the same land. And in case where one by an exception dilatory, abateth a 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 i● the case before mentioned, from henceforth the view shall not be granted if he had view in the first writs. In a writ of dower where the demand is of the land that the husband alienated to the tenant or his Ancestors where the tenant aught not to be ignorant what land the husband did alien unto him, or his ancestors; though the husband died not seized, 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 seruiti● Domini Regis: View shall not be granted in a Writ of Ward, in a Writ of Customs & Services, in a Writ of Aduowson of a Church (but no● 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 obijt. Aid Prayer is for Tenant for life, to 31 E. 3. joined in aid 10. 33 H. 6. 29. request him that hath the Inheritance, to help him pled. And therefore here the tenant himself remaineth always party, & is never out of Court: and this Aid Prayer is for the feebleness of his estate. So must an Incumbent, the Patr 〈…〉 Ordinary. Else no recovery against h●● bindeth the successor or them. And th●● is in respect of their interest to the Church; the Patron to present, and to have an I 〈…〉 cavit of the tithes: the Ordinary to adm●● & to present by Laps. But upon Aid prayer it doth, though they make default, & confess the Action. Statutes. Westm. 2. Cap. 3. He that is in the ●●uersion shall be received in default of the Tenant for life. If judgement be given by reddition, or default, he in the reversion shall have a Writ of Entry after the death of the Termor: so shall the heir where the Tenant was Tenant in Taile. 20. E. 1. De Defensionis juris: he in the reversion desiring to be received before judgement, shall find surety (as the Court shall allow) to answer the value of the issues of the Tenants from the day of the receipt, till judgement, if it pass for the demandant. 13. R. 2. Cap. 17. The like receipt shall be for him in the reversion upon the faint pleading of such a Tenant, and he shall pled in chief without delay. And the judges by discretion shall give days of grace between the demandant and him that is received; without giving the common day in 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 judgement rendered, to say that the action was by covin. Westm. 2. cap. 3. Receipt is given to the wife in her husband, if he loose her land by default, and the tenant that recovered against her husband must maintain his own right. Vourcher is the calling of one that should warrant in to answer the action. Therefore 31. E. 3. joined. ●● aid. 10. F. N. B. 1●4. ●▪ upon the vouchees entering 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 lieth, he must vouch him against whom the recovery was: else he shall have no benefit of that recovery. Statutes. Westm. 1. cap. 39 In mortdauncestor nuper obijt, 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 is a good counterplea to say that the tenant or his ancestor was the first that entered after the death of him of whose seisin he demands, unless the vouchees be ready, who if he vouch over, the demandant shall have his counterplea. 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 counterplea, 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 feoffement make unless the vouchees be present, who if he vouch over, the demandant shall have his Counterplea. But warranty of charters lies in these cases. 20. E. 1. Stat. de vocat'. ad warrant'. This Counterplea of voucher that the vouchee nor his ancestors had nevet any thing, so as he could a feoffement make with warranty shall be received, although the vouchees be ready to enter into warranty. 14 E. 3. cap. 18. If the tenant voucha dead man, the demandant may aver he is dead, or there is none such. Westm. 2 cap. 6. If the vouchees counterplead the warranty, and it be found against him, he shall loose the land. Where the vouchees F. N. B. 134. k. 22. H. 6. 22. 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 lieu of an action where the original process is Somons' ad warrantizandum (or (a) 45. E. 3. 23. 14. H. 6. 2. Br. Seq sub, etc. 3. if one be vouched within age a Somons ad habendum visum first, and being awarded of full age, than a Somons ad warrantizandum, if he be awarded within (b) Old N. B. 1● Old N. B. ibid. age the parroll shall demur) and a Grandee Cape ad valentiam. If the summons ad warrantizandum or habendum visum, alias, and pluries, be not served, than 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. And if upon vouching of an heir the 13. E. 3. judgement 117 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, or the Cape ad valentiam 3. H. 7. 13. Br. rec●●. en value 40. 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 coperceners, from the death of their ancestor. So as the wife's dower whom he taketh before any voucher by reason of such an (a) Park. 61. ●. exchange, or whom a (b) Park. ibid. coparcener in gavel kind marrieth at any time, shall be defeated upon a recovery in value or pro rata, for so is the recovery in value called in the case of coparceners. Prerogative. 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 15. H. 7. 10. his letters patents give lands to one by this word (Dedi) the patentee shall have aid of him, because by the same word he might 9 H. 6. 4. vouch a common person. And when one prayeth in aid of the King in lieu of a voucher, the special cause must be entered, else he shall never have in value by petition. So of Coperceners. And if two parceners make partition, one alienateth part of her purparty, the other is 1. E. 3 4. impleaded and prayeth in aid of her coparcener, and they loose. 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. In an assize of novel disseisin and nuisance, voucher lieth not, unless the vouchees F. N. B. 178. c. 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 Warrantia chartae. Advantages in certain personal actions are Garnishment and Enterpleader. Garnishment is upon a writ of detinue, when being alleged by the defendant to have been upon a bailement by the plaintiff, and another or for another upon condition. 14 E. 4. 2. As that if I S. do such a thing the goods shall be delivered to him (for though the plaintiff sole delivered the goods, 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 redelivered to the plaintiff, that other shall be brought in to show whether by reason of that bailement which the defendant so allegeth both for the (a) 21. H. 6 35. place, (b) 40. E. 3. 11. condition, (c) 20. E. 4. 13. and matter of the bailement, viz. who bailed it, etc. from which the Garnishee cannot (d) 40. E. 3. 11. howsoever it agreed or disagree with the (e) 4. E. 3. ibid. plaintiffs declaration, himself or the plaintiff aught to have them, for garnishment is but to know whether the condition, etc. alleged by the defendant were performed or not. And if they were delivered upon other condition than the defendant allegeth, 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 garnishee. But if the defendant affirm not any certain bailement for place, condition, 21. H. 6. 35. matter, etc. as if the plaintiff declare of a bailement upon certain conditions, etc. and show which, and that he hath performed them, and the defendant pray garnishment generally: there the garnishee may from the bailement alleged by the Plaintiff, for the defendant hath not affirmed the same. Enterpleder is when diverse bringing several writs of (a) 33. H. 6. 25. 8. H. 6. 30. detinue, ward (b) 3. H. 6. 44. or Quare (c) 19 H. 6. 68 impedit against the same person in the same County, and for the same thing, though (d) 8. H. 6. 30. they in time and place of delivery (for the place is not material being all in one County) so as they not (e) 33. H. 6. 25. in the substance of their declaration, as for to declare of a chest sealed, without alleging any deed in certain: and the others to allege a deed in certain. They (f) 8. H. 6. ibid. all shall enterplead together, as much to say, the rest shall answer him that brought the first writ, and therefore shall have the same 33. H. 6. ibid. 8. H. 6. ibid. day given them, if the writs be returnable at several days. And the reason of enterpleding 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 he 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 (a) 1. H. 7. 25. treason, (f) Stamf. 111. The Abbot of battle had so. murder, theft, or other crime, for which he should loose life or member. And therefore this taking effect by the Kings grant only (for touching the King's prerogative so nigh it cannot (d) 1. H. 7. 26. be by prescription) and being an immunity to one that offendeth the King and his Crown, is a (e) 1. H. 7. 25. temporal matter pertaining to the temporal coercion & jurisdiction, and need no consecration. But yet when it is consecrated by the Pope's unholy Ceremonies, it obtaineth the name of Sancturary. Statutes. Taking of sanctuary away. 26. H 8. cap. 17. In high Treason. 2●. H. 8. cap. 7. In Petty Treason. 27. H. 8. cap. 4. and 28. H. 8. cap. 15. In treasons, felonies, robberies, and confederaces, 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, Chapels, 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. cap. 12. In Treason, Misprision of treason, Manslaughter 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 xii. d. value. 32. H. 8 cap. 1. made perpetual. 32. H. 8. cap. 3. 1. E. 6. cap. 12. In murder or poisoning of malice prepenced, 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 Chapel. But in all other cases of felony it shall be granted. 2. E. 6. cap. 33. In felonious stealing of one's Horse, Gelding, or Mare. 1. Mar. cap. 6. In counterfeiting coin that is not the coin of the Realm, or currant in the Realm, the Queen's sign, manuel privy signet, or privy seal: and all procuring and abetting. 1. and 2. Ph. and Mar. cap. 4. From these that call themselves Egyptians. 27. H 8. cap. 19 All in sanctuary for murder or felony out of the house, wear a badge 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 privilege. 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 privilege, upon substantial and indifferent proofs before the Lord Chancellor. And it is felony for any sanctuary person that shall of prepenced malice make reskues, or resist any officer in imprisoning the privileged persons as before. Contracts under xl. s. trespass and covenant between the privileged 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 Churchyards, 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 privileged persons shall every day be called by name, and making default three several days with lawful cause, forfeit the privilege: committing any offence punishable by death is forfeiture also. CHAP. 32. Of Pleas in Bar. THus fare of Dilatory pleas. Pleas to the action are those that go to the body of the matter. And are pleas in bar or c 〈…〉 ssions. Pleas in bar are th●se which are to bar the plaintiff of his ●●●ion, where the Defendant must make defence, as to say, Defendit vim & ini●ri●● quando. But this defence shall not be in 34. H. 6. 33. dower assize of novel disseisin, Per quae seruicia, and attaint. The Tanant may pled a warrantis in Litl. 150. bar of him that should warrant if he bring the action. As if there be grandfather, father and son, the grandfather is disseised, the father releaseth to the disseisor with warranty, and dyeth after the grandfather dyeth. Now if the son bring an action to recover the land, he shall be barred by the warranty made by his father, and this is called a Rebutter. Statutes. Glocest. cap. 3. The heir shall not be barred of his mother's inheritance by the warranty of the father, being Tenant by courtesy, or alienating without fine in the mother's 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 pled that he hath a third persons estate and (a) 42. E. 19 rebut, but not vouch by a warranty made unto the person. But in (b) 21. E. 4. 82. writs of dower the ancestors warranty is no bar. (c) Lit. Chap. of Guaranty. A warranty made by the disseisor at the time of the disseisin: we call it a warranty commencing by disseisin. As the feoffement with warranty of a father, or other ancestor, lessee for years or at will, of the demise of his son, or of garden in Knight service or soccage, or where one which hath not right entereth into the land, and presently maketh a feoffement with warranty, barreth not his heir, (d) 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, for 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 assize 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 pled (a) 22. H. 6 50. it is his freehold, or (b) 2. E. 48. the freehold of I. S. and that he entered by his commandment, or (c) 15. H. 7. 10. when one prayeth in aid of I. S. or of the King, or Rege in c●●suleo, though he entitle himself by a lease at will, etc. colour needs not. Otherwise it is (d) 21. E. 4. ibid. if he entitle another to a lease for years, and justify by his commandment. So (e) 32. H. 6. 1. if a matter that destroyeth the plaintiffs title, as a release in an assize, in a Trespass of goods a sale by a stranger in (f) 21. E. 4. & 5. market overt, and that the plaintiff took them out of his possession, and he retooke them, there colour needs not. Not more it doth where he pleadeth to the writ and not in bar, though the plea indeed go in bar. As in trespass of goods, that I. S. was possessed and made Alice S. and I D. his executors and died. Alice S. took the Plaintiff to husband and was covert day of the trespass and after died. So should the writ be brought by I. D. who is yet in full life, not named in the writ, judgement of the writ, etc. And in giving colour these things must be observed. 1. It must be to the plaintiff, not to a 38. H. 6. 7. stranger, nor to the defendant. Not to a stranger, as in trespass that A. was seized and him enfeoffed, and I. S. claiming by colour of a deed of feoffement from A. where nothing in truth passed, etc. entered and enfeoffed the plaintiff. This is no good colour, for in a stranger matters en fait must always be alleged, as to say, that I. S. enfeoffed A. who enfeoffed the Plaintiff: or that A entered and disseised I S. and enfeoffed the plaintiff, etc. Neither must the plaintiff give colour to the defendant, as where the defendant pleadeth 19 H. 6. 31. his freehold, now if the plaintiff say that before the defendant any thing had, A. was seized and enfeoffed the plaintiff, & the D. claiming by colour of a deed of feoffement from A. where nothing passed, etc. entered, upon whom the reentred is not good. 2. It must be of such a possession whereby he may maintain his action. 32. H. 6. 6. As in an assize the defendant must give the Pl. a colour of the Pl. own possession, and not of the possession of his ancestor, as to say that the plaintiff claiming by colour of a deed of feoffement made unto himself where nothing passed, etc. is good. But not to say that the plaintiff claiming by colour of a deed of feoffement made to his ancestor where nothing passed, etc. for of such a possession in his ancestor he cannot have an assize. 3. The colour must be a matter doubtful in Law, or otherwise difficult to the 19 H. 6. 21. lay people, else it is not sufferable, but he shall be forced to take the general issue, as in an assize to say, Nul tort, etc. or in an action of Trespass, not guilty. As if I bring an assize against you, and you say that you let the same land to one for term of life, and after granted the reversion to me, and the Tenant for term of life died, and that I claiming the reversion by force of the said grant, where the Tenant did never at 〈…〉 entered, etc. This especial matter is suffa 〈…〉ble, because that is dangerous to pled 〈…〉 tort, etc. For the lay people will think th●● the reversion passeth by force of the g 〈…〉 without atturnment. The same Law it i● where the Tenant saith, that he himselve let the land to the Plaintiff, for term of h●● life, and then the Plaintiff did surrend●●▪ For the lay people know not that a surrender may pass by word. The same Law it i● where the Tenant saith, that the father ●● the Plaintiff let unto him for term of another man's life, and after released unto hi●▪ And the Plaintiff supposing that his father died seized of the reversion ousted him after the death of him, for whose life, etc. because the lay people understand not 〈◊〉 this release doth inure, whether by way of enlargement, feoffement, confirmation, ●● extinguishment. The same Law it is if the Tenant say that the father of the Plaintiff enfeoffed him, and afterwards suffered him to occupy at will, and he supposing, &c The same Law it is to say, that the plaintiff claiming as bastard and eldest son entered, because the lay people think th●● the eldest son, though he be a bas●●rd, may inherit. The same Law it is to say th●● such a one was seized and enfeoffed, the ●●nant and the plaintiff claiming by a deed of feoffement made before where nothing passed, etc. because the lay people think it a good feoffement, though it be made 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 seized until he was by the pl. disseised, whereupon he reentered, 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 man's life, and the plaintiff supposing that he had died seized of an estate in fee simple, entered, etc. because in these cases the Lay people do well understand that he is no disseisor: & therefore in these and in all other like, the tenant shall take the general issue. In real Actions for the mere right when it is in respect of a disseisin done to him or his ancestors, and not founded upon a signiory, as a Writ of Eschete, a writ of right sur disclaimer, etc. the Tenant 16. E. 4. 9 3. E. 3. Dr. 26. cannot traverse the seisin, but may tender half a Mark to the King to have it inquired by the jury: and being found that the demandant was not seized in the time whereof he counteth, that shall bar him for ever. Prerogative. The tenant cannot tender half 〈…〉 against the King. The heir or Executours in an Act 〈…〉 brought against them, where they are c 〈…〉 geable pleading a matter in their 〈…〉 knowledge (a) 3 & 4. P. & M. Dy. 149. 21. E. 3. 9 6 & 7. E. 6 Dy. 81 34. H. 6. 22. Br. Exec. 22. which goeth in perp 〈…〉 bar, As for the heir to pled that nothing descended to him from the same Ancester▪ the Executor to pled a release or acquittance made unto himself, or that he was never Executor, nor never administered ●● Executor shall be charged as in their 〈…〉 perdutie, if it pass against them. Otherwise it is if the Executor pltad Mistress 〈…〉, or another Executor alive not named i● the Writ, (for that is no bar but only ●● the Writ) or Oriens inter mains (for that is no perpetual bar, for a Scire facias lieth if they come to have lands after) or a release, or acquittance to their Testator: or Nie●● le fait of their testator, for they cannot have knowledge of it. Otherwise it is also if ●●ther 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, etc. nor no Cap. ad satisf. lieth against him. 21 E. 3 ibid. the heireor Executor be condemned by a Nihil dicit, or confess the certainty of the assets. And in the first case, as whe●● the heir pleadeth nothing by descent, 〈…〉 which is found against him, the plainti 〈…〉 shall have an Elegit of the moiety of all 〈◊〉 lands as well purchased, are by descent: 〈◊〉 in a Formedon en Descender, if the Ten 〈…〉 pled in bar a warranty with assets, and the demandant said Rien per descent, and 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 tendered is false. In Assizes of Novel Disseisin, Nuisance, Mortdancester, juris utrum, & in Enditements and Appeals of Felony, the defendant may pled in abatement, & over in bar, or take the general Issue also. As in a Mortdancester, (a) 40 E. 3. 29. that he hath nothing but in right of his wife; or (b) 2 E. 3. 62. 22 E. 4. 3●. I. 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 assize of jointenancy, 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, than he hath done no wrong. In a juris Vtrum the Tenant may pled 12 E. 2. jur. ver. 12 Misnosmer of the demandant, or that a stranger holdeth parcel not named. And if it be found, etc. that the demandant hath received his fealty, etc. And if it be found, etc. then that it is his Lay fee, and not Frank Almoigne, etc. In an indictment, or Appeal of death, misnomer of himself, or no such town; and to the felony not guilty. But he cannot pled a Release, and to the felony not guilty: for by the Release he hath in a manner confessed the felony: 4. H. 6. 15. 22 E. 4. 39 Ibid. also he may pled a matter in bar, & upon that found against him, then pled not guilty, though he pleaded it not before. In Assizes of Novel Disseisin, and Nusanc, 1. E. 5. 5. he may pled a special matter that amounteth but to the general Issue. As in an Assize of Rent by Deane and Chapter, to say that Rescous was made to the predecessor, and no seisin in him, or in any Successor since that time. Though in the pretence of him that pleadeth it, it amount to no more, but that the plaintiff was never seized, so as he could not be disseised. Upon (a) 9 E. 4. 2. Enditements of Felony 〈◊〉 Treason, otherwise it is in Appeals, the defendant being put to answer, which is called an Arraignment, is not allowed council, if he deny (b) Stamf. 151. b. the fact. For either his conscience perhaps will sting him to utter the truth, or otherwise by his gesture, countenance, 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. But if he pled Sanctuary, or any other matter in Law, than he shall have ● H. 7. 23. 32. H. 8. Dy. 13. 41. E. 3. 27. council. A presentment in the left or sheriffs turn, after the day of the presentment bindeth the party for ever, and is not traversible but in cases that touch one's Freehold: as that one aught to cleanse the Highway 5. H. 7. 3. or such like rationae tenure suae: therefore the course is to remove such presentments into the king's 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 (a) 9 H. 6. Co●● ● be an Approver but in felony or Treason. And that upon an (b) 1. H. 7. 5. indictment only, and though it be (c) 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. Nor without (d) 1. H. 5. Co. 441 confession of felony before the judges, which confession must be (e) Stam. 143. ●. upon an indictment precedent (that the judge may at any time give judgement to attaint him) not upon an arrest for felony of the same offence. But he cannot approve one that (f) Stamf. 143. ●. received him, for it must be of such an offence as he himself did together with the other: nor one that (g) 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. ca 12. Notorious felons which will not put themselves upon an inquest at the King's suit against them, shall be put to a pain sort & dure, as those which refuse to be tried by the Law of the land. One that flieth to a church (a) The Stat. 32. H. 8 cap. 21. so reciteth it. or churchyard, & confesseth before the Coroner 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, as that he hath Stam. 119. b. stolen such or such a thing, killed such or such a man. But at the first taking of the Stam. 116. Church, it is enough to say he taketh it for a felony, which he hath committed generally may abjure, and so save himself But not in case of high Treason, or petty treason, for the Coroner cannot attaint him upon his confession thereof, because he is not his judge of such a crime: neither can be his judge as he is Coroner, although he have a Commission from the King to do it. And if the offendor, being in the Church, will of purpose confess a felony, to the intent to escape of treason, yet if the Coroner have information that he is charged with a treason, he may not suffer him to abjure. And that for the King's advantage, who is to take more benefit if he be attainted of treason then of felony, because of the escheat. The same law it is of petty treason, for the Coroner can no more record his confession of that then of high Treason: neither may the Coroner 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, notwithstanding Br. Coro. 182. the King be to have no more advantage in petty treason then in felony. Neither can a man abjure for petty larceny, because he is not to suffer death for it likewise. Abjuration is his (a) Stam. 119. b. oath before the Coroner himself to departed 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: and till he can so pass going every day into the sea up to his kners to assay if he may pass over, and if he cannot pass within xl. day's then to put himself again into the Church as a fellow, etc. And this abjuration is an (b) Stam. 122. c. attainder in itself (and that the strongest that can be, being by his own confession) and a (c) 4. El. Pl. 262. forfeiture of his lands. And there is a writ of escheat of land for felony, pro qua abiuravit regnum. And therefore he (d) 3. E. 3. Co 33. f that is hanged upon judgement against him, and becometh alive again, cannot abjure (but an abjuration in that case is an escape) for one cannot have two judgements 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 Churchyard. 9 E. 2. Stat. de artic. cleri. ca 15. A Clark shall not be compelled to abjure, but to have his Clergy. 21. H. 8. cap. 2. Immediately after confession, and before abjuration, the fellow shall be marked in the hand with an hot Iron with the sign of an A. The fellow must take his passage at such a day and time as the Coroner shall limit, else he shall loose the benefit of sanctuary, and be taken out and further ordered according to his demerits, without restitution to sanctuary. 22. H. 8. cap. 14. If he be found out of the place, he shall dye for it. 22. H. 8. cap. 12. All abiurations shall be made to certain privileged places within the Realm, mentioned in that Act, there to remain during his life. CHAP. 34. Of Replication, Rejoinder, Surrejoinder, etc. THe mutual pleas of both are the debating before issues, or an issue itself. Debating before issue, is the discussing of the material things, to draw it to some one issue. As in an action of trespass or an assize, 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 assize if the defendant derive his interest from a stranger, and that A. was seized and enfeoffed 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 itself is a fault in pleading, as in an action of Trespass of his house, and walls broken down, the Defendant cannot pled touching the house, not guilty, and as to the breaking down of the walls justify, for this carrieth a repugnancy in it, inasmuch as the house and the wall are all one thing. So is a departure, where he forfeiteth not the matter of his plea that went before, but cometh in with a new matter. As if the rejoinder 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 descent unto him of the land, the Plaintiff saith, that after the descent the Defendant enfeoffed him. Now if the defendant rejoin that the feoffement 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 rejoinder, that is to say, the entry for the condition broken, whereby the feoffement is avoided. So if in an assize, the Defendant pleadeth the feoffement of I. S. and the Plaintiff make title to himself by descent, and that he was disseised by I S. who enfeoffed the defendant: or that he enfeoffed I. S. upon condition who broke the condition, and afterwards enfeoffed the defendant, etc. Now if the defendant say that after the disseisin (or condition broken) and after the feoffement 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 feoffement pleaded in bar. But if he pled such a release or confirmation from the plaintiff to I. S. that is no departure, for it is a matter before the feoffement, or in an action of trespass for goods, if the defendantentitle 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 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 assize the tenant pleadeth in bar a devise unto himself of the land being divisible 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 15. 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 pled in bar a lease for 50. years from a house of Religion, and the plaintiff avoid it by reason it was made within a year before the dissolution, and so voided by the Statute 31. H 8. Now if the defendant will allege that by the same Statute it is provided that all such leases shall be good for xxj. years, and so maintain the lease to be good for so many years, this is a departure: or if one pled 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 assize to pled a feoffement of the ancestor with warranty. In debt upon a simple contract to pled payment and an acquittance. In an assize to pled diverse descents of the land in fee simple, for every of them requireth a several answer. But in an assize to pled divers descents 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 come but to one issue: So in an action of debt to pled fully administered, and so riens enter mains, for one answer, assets enter mains 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 him in another sort: and further, that he delivered it upon a condition which is not performed, so not his deed. So to justify an arrest for twenty causes of suspicion of felony, is not double, for one answer serveth Des●● tort demesne. Not more to assign in a Writ of error as many errors as appear in the record, for in millo est erratum answereth then 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 diverse issues joined, ●f one be found for the party, and another against him, the Court shall be inveigled, and not know how to give judgement, whether for him or against him. But to pled a feoffement with warranty, and rely upon the warranty only is not double, for he cannot pled the warranty without the feoffement. Of the first sort are Replication, rejoinder, surrender, etc. In an assize against many, if each (a) 33. H. 6. 36. take the whole tenancy severally, a pled (b) 33. H. 6. 36. several matters in bar: or (c) ces Br. ass. 383 one Nul tort and the other in bar: otherwise (d) 44. E. 3. 23. it is if one pled in bar, and the other joyntenancie by deed: the Plaintiff at his peril must choose his Tenant. And then after issue for the whole, that, viz. the tenancy, 8. ass. Pl. 1. shall be first enquired of. And being found for the Plaintiff, than the other issue shall be enquired. Being found against ce● ibid. him and no title made against the tenant indeed, the writ shall abate. In an action of Trespass mere transitory, although the defendant justify by any special matter, as in a (a) 19 H. 6. 65. Trespass of goods, by commandment of I. S. whose the property is, in (b) 34. H. 6. 16. assault and battery, or an (c) 41. ass. Pl. 21. appeal of maim, in his own defence upon the plaintiffs first assaulting of him: in false imprisonment by (d) 5. H. 7. 6. being Constable of the Town, and that the plaintiff broke the peace, or (e) 2. E 4 9 by an arrest for suspicion of felony, or by (f) 22 ass. Pl. 85. the commandment of I. S. to seize the body of the Plaintiff in ward, by reason his ancestor, whose heir he is, held of I S. by Knight service, etc. 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 (a) 21 H▪ 6. 5. a warrant of justice of peace to arrest him, or a (b) 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 (c) 44. E. 3. 18. 22. ass. Pl. 185. title or licence (d) 12. E. 4. 10. from the plaintiff, there de son tort demesn is no plea, but the special matter must be answered. So (e) H. 29. El. C. B. always in a trespass local, as of his close broken down, etc. if the defendant entitle a stranger to the land, whether to the freehold, or though it be but to a lease of it, and justify by his commandment. And likewise in a (f) 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 then the Plaintiff meaneth, the Plaintiff may make a new assignment, setting forth the place more specially. As if the defendant 27. H. 8. 7. justify in a place called A. as his freehold, the plaintiff may say the place where, etc. is called B. other than the place called A. & then the defendant may pled all anew. CHAP. 35. Of Issues. AN Issue is when both the parties join 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 allegeth 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 pled he hath performed all, the plaintiff must show some in 15. H. 7. 2. certain which the defendant hath broken, whereupon issue shall be joined: but cannot reply that the defendant hath not performed all. For in Lodgicke there be three kinds of contradictions: General, when both the propositions are general, as, All the covenants are broken, None of the covenants are broken. Particular when one is general, the other particular, as, All the covenants are broken, Some of the covenants are not broken, None of the covenants are broken, Some of the covenants are broken. Proper, when both the propositions are proper, as, This covenant is broken, This covenant is not broken. The two 33 H. 6. 9 former make no issue in our Law, but the latter only: and every issue is of an affirmative and a negative. After which if any insufficiency of pleading appear in the record, whether the issue be joined thereupon, which we call a jeofaile, or not, the parties must replede or begin a new where the first defect was. And in this case a jury 35. H. 8. Br. repled. 54. 7. H. 7. 3. is ready at the bar that to pass upon the issue, shall be discharged. As if the bar be good, and the replication ill, and issue taken upon it, the judgement 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 rejoinder ill, and the issue taken upon the rejoinder, the defendant must make a new rejoinder, and the replication shall remain. But if the bar be i'll, and the replication good and the issue taken upon it, now they must pled all a new because the bar which is first of all is vicious. But no repleader shall be in an assize, ● the Plaintiff have disclosed a sufficient title: for in an assize no land in certain is demanded, but an assize only prayed. And therefore where a sufficient title is disclosed the Plaintiff shall have judgement upon seisin and disseisin found for him. And no repleder shall be notwithstanding that the Tenant have made a (a) 14. H. 7. 12. vicious bar, or (b) 5. H. 7. 29. 35. H. 6 37. misrejoined. Otherwise it is if the Plaintiff take issue upon an insufficient bar. (c) 5 H. 7. 29. If the tender of this issue come on the Plaintiffs part, the form is, Et hoc pe●i● quod inquiratur per recordu, vel patrid, etc. If on the Defendants part, than it is, Et de hoc point se super recordum illud vel super patriam. Issue in a writ of right cannot be joined, 19 H. 6. 57 we call it joining of the mice, upon th● mere right, but by the party himself, not by Attorney. Where the Plaintiff in his replication 15. H. 7. 13. maketh title at large, without traversing o● confessing and avoiding the bar, or any way meddling with it, the Tenant 〈◊〉 join issue upon the title by saying, V 〈…〉 assize sur la title, that is, Let the assize co 〈…〉 15 H. 7. ibid. 5. H. 7. 29. upon the title, which is called a pleading ●● the assize at large. This to be understood where the title is by a matter en fait, but not record, or done (a) 5. H. 7. ibid. in a foreign County, for they are not triable by the assize. (b) 14. H. 7. 6. And in a personal action, whether trespass (c) 46. E. 3. 11. or replevin where justification is made (d) 46. E. 3. 11. 10. H. 6. 26. for damage fesant, for that is merely in the (e) 14. H. 7. 6. 4. H. 6. 10. personaltie, where the title of the land cometh in question, lieth not till issue joined. And yet in that case it never lieth for Tenant for life, but only for tenant for years, bailyfe, etc. Prerogative. Aid in these actions shall be of the King 5. E. 4. aid de Roy 50. 3. H. 6. ꝑ Pl. 216. before issue joined only, though the King be seized but in his natural capacity, as in the right of his Duchy of Lancaster. CHAP. 36. Of Trial by jury. THis being of a matter en fait, that is to say, done in the Country. For 9 H. ●. 38. 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, viz. 14. El. Pl. 410. 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 not given in evidence. And therefore a fine or common recovery may be given in evidence without showing it under the great seal, or seal of the Court, or vouching the Roll of the recovery, for the jury may found them if they william. But peradventure they are not bound to found it upon pain of attaint, unless it be showed under the seal is triable by the oath of twelve free and Old N. B. 171. The form of the writ of venire facias. 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 xii. for the verdict of more or less, as of (a) 41. ass Pl xj. or xiii. (b) is void: free, not (c) 26 ass. Pl. 28. villeins, nor (d) 14. H▪ 4. 19 aliens: lawful, for one outlawed may not be a juror, because he is not Legalis homo, (e) 21. H. 6. 30. and of the same County, for upon (f) 9 H. 6. 63. a trespass local, as grass cut down in the County of D. where the trespass was in the County of S. if the defendant pled not guilty, (as he may) and the jury found him guilty in the County of S. the verdict is voided. But 28. H. 8. Dy. 30. if they found them guilty generally, an attaint lieth. But upon an issue whether the Executors have assets in their hands, the jury may found the assets in any County, for it is but a transitory thing. Lastly, the jury must be indifferently chosen, so as neither the Sheriff that maketh it (for that is good cause of challenge to the panel or array) nor the jurors that are to pass upon it (for that is good cause of challenge to the polls) bear either favour or malice to any party. As for the Sheriff to put in any juror at the party's denomination. And either 7. H. 4. 10. the Sheriff or juror to be of his (a) 8. ass. Pl. 23. fee, or his (b) 21. E. 4. 67. servant, or within (c) 20. H. 6. 39 for the Sheriff. his distress, whether his tenant (immediate or not immediate, as (d) 38 E. 3. 25. holding of I. S. who holdeth of the party) or not his tenant, as where he is (e) 38. E. 3. ibid. to come to the parties hundred, or the party (f) 15. E. 4. 18. Br. chall. 68 38. E. 3 ibid. maketh a quaere of thi● hath a rend charge going out of his land. To be of kin to the party, for Cozenage in the Sheriff is a good principal challenge to (g) 15. Eliz. Pl. 425. for the sheriff. 21. E. 4. 63. for a juror. 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 entendible 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 unto the other of other land. And therefore it is a good challenge in personal suits also: To have been (a) 21. H. 6. 39 for the Sheriff. 3. H. 6. 24. for the juror. arbitrators on his part in that matter. To (b) 11. H. 4, 26. have an action of battery depending against the party, or an action of debt by the party against him, etc. The juror to have (c) 49. E. 3. 2. taken money for his verdict to have (d) 49. E. 3. 1. given it before hand, or to have (e) 7. H. 4. 11. passed formerly in the same matter: & such other things as of themselves carry favour or malice in them, & are called principal challenges. So of those which only do induce it: as to be the party's (f) 21. E. 4. 67. for the sheriff. 14. H. 7. ● for a juror. master, (g) 49. E. 3. 1. councillor, Attorney, (h) 14. H. 7. 2. Steward of his manor, to (i) 11. H. 4. 26. sue him in an action of debt, etc. to be (k) 20. H. 7. 2. of the same society with him, as if both be of Graies-Inne, or the (l) 14. H. 7. 2. party to be within his distress, or (m) 18. E. 4. 13. he to have passed before upon such another matter. Statutes. Westm 2. cap. 38. In an assize no more shall be summoned but xiv. Men above lxx. years of age continually sick, or sick at the time of summons, shall not be returned in juries or assizes: nor any that devil out of the County, unless it be in grand assizes. Artit 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 poison in one County, the party dying in another, an indictment and trial may be in the County where he dieth. And an appeal sued there and tried by xii. 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 lunatic, being at the time of confession of treason before the Council, of perfect memory, and so certified by them, shall be tried by freeholders of any Shire to be appointed by commission. And the trial whether he be culpable or not, shall be there in his absence. 33. H. 8. cap. 23. Confession of Treason, Misprision of Treason, or murder being made before the Council, or three of them, or they vehemently suspecting one of such an offence, it shall be enquired, heard, and determined by Commission out of the Chancery, in the shire or place limited in that Commission, by such lawful persons as shall be returned; wherein no challenge for the shire or hundred shall be allowed. 28. H. 8. cap. 13. & 27. H 8. cap. 4. All treasons, felonies, robberies, murders, and confederacies within the Admiral's jurisdiction shall be enquired 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 challenge 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 shires, and before such commissioners as the King shall appoint. 35. H. 8. cap. 2. All treasons, misprisions, or concealments of Treason done out of England, shall be enquired, heard, and determined in the King's Bench by men of that shire where the Bench sitteth, or else before Commissioners, and in such shire as shall be limited by commission. 1. & 2. Ph & Mar. cap. Trials for treason shall be according to the course of the common Law. 23. E. 3. cap. 3. No enditor be put in inquests upon the deliverance of enditees of felonies or trespass. Westm. 2. cap. 38. None shall be put in assizes or juries triable in their own shire, but such as have xx. s. a year freehold, nor in assizes triable out of their own shire, unless they have xl. s. 21. E. 1. De ponend' in Assisa. None shall be put in assizes triable out of their own shire but such as have lands to the yearly value of C. s. nor in assizes triable in their own shire, unless they have xl. s. 2. H. 5. cap. 3. None shall pass in an inquest upon the trial of the death of a man, nor between party and party in plea real or personal, whereof the debt and damages amount to xl marks, unless he have lands of the yearly value of xl. s. 33. H. 8. cap. 13. In Cities, Boroughes, or corporate Towns, an inhabitant being worth xl. l. in goods, shall be admitted in trial of murders and felonies in every Session and gaol delivery for that Town, though he have no freehold. 35. H. 8. cap. 6. made perpetual. 2. E. 6. cap. 32. The cause of having xl. s. value, must be inserted in the venire facias: and be of lands out of ancient demesne. Where that clause needs not, the jurors must dispend some land of freehold out of ancient demesne within the County where the issue is to be tried. 27. Eliz. cap. 6. Where the jurors returned in the King's Bench, Common place, Exchequer, or before justices of assize, aught to have xl. s. freehold, there they shall from henceforth have xl. l. yearly freehold out of ancient 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. Eliz. cap. 7. No bailiff 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, etc. 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 Bailiff, etc. 8. H. 4. cap. 3. Every juror returned within the County of Middlesex shall be called the fourth day of the return, and appearing at the same day, their appearance shall be recorded, and they shall not be amerced nor loose 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 beside 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 the embraceors to procure it, being thereof attainted, shall pay ten times so much as he hath taken. Westm. 2. cap 30. Assizes 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 assizes if the taking be by any means deferred. Also in assizes of mortdancester being respited, they may adjourn into the Bench if need be. And when it cometh to the taking of the assize, the justices of the Bench shall sand it back again to them. All pleas in either of the Benches that require small examination, shall be determined before them. 27. E. 1. cap. 4. Statutum de finibus levatis. Such inquests being taken, shall be returned into the Bench, and there judgement shall be given. Inquests and Recognizances 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 Eborat. 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 is the country, Knight or other, so that a certain day be given in the Bench, and a certain day and place in the country, i● presence of the parties demanding of the same. Inquests in pleas of land that require no great examination, shall be taken in the Country (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. ca 7. In all manner of pleas where an 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 suit 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 King's 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, etc. otherwise the chief Baron being a man of the Law, if, etc. or else before the justices assigned to take assizes in those parts. So that one of them be a justice of one Bench or other, or the King's Sergeant sworn. 18. Eliz. cap. 12. The chief justice of England upon issue joined in the King's Bench or Chancery, and the chief justice of the Common pleas, and chief Baron of the Exchequer, upon issues joined 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 joined to set in Westm Hall within the Term, or four days after. 4. E. 3. cap. 11. confirmed 7 Ric. 2. cap. 15. justices of nisi prius shall inquire, hear, and determine, as well at the King's suit as the parties, all maintainers, conspirators, makers of confederacy, and committors of Champerty, and all other things contained in the said Article, as well as justices of Eyer should do, if they were in the same County. 14. H. 6. cap. 1. justices of nisi prius have power in cases of felony and treason as well upon acquittaile as attainder, and thereupon to award execution. Stat Eborat. 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, than the first issues returned upon 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 King's Writ runneth not. Four of the jury must also be of the 7. H. 4. 17. 36. H. 8. Dy. 61. same hundred, and so many are enough though it be in an attaint where the jury is xxiv. In an information upon the Statute of plurality of farms, for having 7. Farms in 7. Towns in four several hundreds: If four of the jury have any thing, or devil within any of the four several hundreds it is sufficient. Statutes. 15. H. 8. cap 6. made perpetual. 2. E. 6. cap. 32. Six sufficient Hundreds shall be returned in every jury. 27. Eliz. cap. 6. If two sufficient hundreds appear in any personal action, it is enough. If the thing in issue lie in the notice of two several Counties, and not of one only, for (a) 15 Eliz. only two Counties may join, and no more. And two may though they be not the next, as Kent & Devonshire, the jury shall be made (b) 49. ass. Pl. 1. 1. equally out of both: That is, six out of the one, and six out of the other. And this we call a joynder of Counties, as in (c) 49. E. 3. 19 21. H. 6. 3. an action of trespass, if the defendant justify for common appendent 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. Rit. 2. cap. 10. An assize of novel disseisin of rent out of the Tenements in divers Counties, shall be in the confine of the said Counties. But upon an indictment of an offence against the Crown, the trial shall never 4. H. 7. Coro. 60. 6. H. 7. 10. be by joinder of Counties. Therefore an indictment that one stroke I 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 join in an indictment. And therefore before the Statute 2. and 3. E. 6. (which altereth the law in this case) they were wont to carry the corpse into the County where the stroke was. But otherwise it is in an appeal. But if the Defendant pled in any action, as in a homine replegiando, or though it 19 H. 6. 18. by the common law. 40. E. 3. 36. be but in a writ of trespass or debt, that the Plaintiff is a villain regardant to a manor of his in another County, yet the same shall be tried in the County where the writ is brought. And this is in Favorem libertatis. 28. E. 3. cap. 3. confirmed. 8. H. 6. cap. 28. In every suit between an Alien and a Demesne (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, than so many as be there not parties, nor with the party to the suit. Where a Peer of the Realm is 〈◊〉 to the action, a Knight must be returned to 2. Mar. Pl. 117. the jury. 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 Duchisses, Baronesses, Countesses, sole or married, shall be tried (in such cases) as Peers of the Realm. In a Court of Pipowders the trial is by Preamble of the Stat. 7. E. 4. ca 2. so reciteth it. 39 E. 3. 2. 39 E. 3 2. 1. Mar. Dy. 98. There must be 12. beside the four Knights. Bra●. 42. the Merchants. The jury in a writ of right is called the Grand Assize. Being four Knights, ●● other in default of Knights, choosing a jury of 12. unto them. So note xuj in all, for the grand jury is always above xii. and therefore no attaint lieth for him that loseth in a writ of right, because it passeth by the grand assize which is more than xii. Challenges are here allowed for th● parties (if they will) both to the array 〈◊〉 to the polls. And whether to the panel or the polls, are to be tried by some of the jurors, if it be (a) 27. H. 8. 26. before any jurors swor●, the Court shall choose the Triors, when any jurors are sworn they must try it. Challenge to the array is when the jury is not sufficiently empanelled upon 〈◊〉 cause of challenge to the Sheriff, and afterwards to the Coroners, who by reason (●) 14. H. 7. 31. 4. H. 7. 3. of just exception against the Sheriff made or should make the array, the (d) 8. H. 6. 12. 15. E. 4. 24. Court must choose certain named Esloirs, (e) 15. E. 48. where the parties shall never have challenge to the whole array. Challenge to the poll is when any of the jurors are insufficient to pass upon the trial. This challenge must be taken before the panel be 27. H. 8. 26. perused: For if the plaintiff challenge one, and when the panel is perused, the defendant challenge the same person, yet the plaintiff may release his challenge, & then the juror shall not be drawn, because the defendants challenge is nothing worth, in that it was not made till the panel was perused, and shall be tried by two of the jutors chosen by the Court, against whom 27. H. 8. 26. no challenge shall be admitted, but challenges that sound not in reproach of the juror, as to be (a) 49 E. 3. 1. of counsel with the party, or (b) 3. H. 6. 36. within his distress, to have (c) 19 H. 6. 9 nothing within the hundred, or (d) 21. H. 7. 29. 27. H. 8. 26. not sufficient freehold, shall be examined upon his oath, which we call an examination upon a voyri dire. He that challenged the array if it pass against him, or (which is as strong) if he release it, shall never challenge the polls without showing cause presently, which shall be tried out of hand. Before the Clerk (e) 7. H. 4. 46. 7. E. 4. 17. pass through the panel. So shall not any other challenge. And after challenge to a juror for one cause, as favour, etc. which passeth against the challenger, he shall 〈◊〉 challenge him for another, as for having nothing in the hundred▪ etc. In enditements and appeals of 〈◊〉 the defendant may challenge xxxv. I 〈…〉 Stam. 157. b. Doct St. ꝑ Br. chall. 11. in an appeal. without showing cause which is called a peremptory challenge. Statutes. 22. H. 8. cap. 14. No person arraigned for any petty treason, murder, or felony, shall be admitted to any peremptory challenge, above the number of twenty. When there lacketh some to fill the I●●●, as the greater part being returned dead, ●● 20 E. 4. 11. Stam. 159. ●. not appearing. But if all the polls be challenged and drawn, there no tales shall be, but a new venire facias for tales referred ●● (quales) some like thing, other of the s 〈…〉 sort shall be taken, for there may be ma●● tales one after another, (a) Stam. 155 c. till it be 〈◊〉 which we call a Tales, which must be●●● (b) Bract tales 11 even number (c) 37. H. 6. 12. less than the pr 〈…〉 palls panel, As a decem tales, octo tales, & ● or in an attaint where the jury is xxiv. ● tales, etc. And (d) 14 H. 7. 2. every tales must be 〈…〉 less number than other. As after an O 〈…〉 tales, a Sex tales, but not a decem tales, not ●● Octo tales again. Statutes. 35. H 8. cap. 6. made perpetual. 2. ●. ● cap. 32. A Tales may be made up before justices of Assize or Nisi prius of able persons of the same County, then present at the prayer of the plaintiff or demandant. 4. & 5. Ph. & 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. 14. El. Cap. 9 Such a Tales de circumcibus before the justices of Nisi prius shall be granted at the prayer of the defendant or avowant. But in Enditements and Appeals 14. H. ●. 7. that touch life, a Tales may be of a greater number than the principal panel. As a xl Tales, or as many as the Court will award, and that is in respect of the peremptory challenge of xxxv. The jury being charged, may neither eat nor drink (but by leave of the justices) 20. H. 7. 3. 6. H. 8. Dy. 3. before their verdict given; and doing it before they be agreed, it maketh their verdict voided. After they be agreed, it is but fineable. The jury upon arraignment either at the (a) 14. H. 7. 2. King's suit, (b) 14 H. 7. ibid. or in an Appeal acquitting one that was found guilty of the (c) 13. E. 4. 3. 4. E 6. 12. death of a man upon an enquiry (d) 13 E. 4. ibid. 4. E. 6. ibid. by the Coroners Super visum corporis must found who did the fact. But not upon an indictment (e) 14 H. 7. ib▪ before the Sheriff or justices of peace, for that is not of Record, a● th● finding before the Coroner is, (f) 13. E. 4. ibid. 4 E. 6. ibid. neither doth this take place in an acquitaile upon an indictment for the felonious taking of goods. The jury in an Assize of Novel disseis●● (which are there themselves properly called 7. E. 6. Pl. 91. Ibid. an assize) shall inquire of the plea in abatement, though the issue be joined upon the seisin and disseisin. And therefore no plea in Abatement is there answerable. 34. E. 1. De Coniunctim feoffatis. The defendant in Assize alleging jointenancy 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 at the day both of them justify the feoffment, they shall maintain the exception, and further answer to the Assize as if the original had been purchased against him jointly. If the exception be proved false by the Assize, they shall have a years imprisonment though the assize pass for them. If the defendant absent himself at the day, the Assize shall pass against him by default, though the stranger appear and justify the Deed. Wither both, or one appear, if it be found by the Assize that the Exception was truly alleged, the Assize shall pass no further, but the Writ shall abate. Such an Exception shall not be alleged by the bailiff of any Tenant. The like processes in assizes of Mortdancester and juris utrum. An Infant bringing an Assize, if a matter en fait, that is, done in the same County be pleaded against him, whether in Abatement, (a) 11. Ass. pl. ●. as in an assize of rent, that he had made his plaint of the same land whence he supposeth this rent to be issuing; or in bar, (b) 48. E. 3. 33. as the Deed of his Ancestor, with warranty, the jury shall inquire of all the circumstances. Otherwise it is in a Writ (c) 9 E. 4. 34. of Entry sur disseisin, or other (d) 48. E. 3. ibid. Praecipe qd reddat: for there the point put in issue, and no other, shall be tried by the jurors. Otherwise it is also in an Assize upon pleading a recovery (e) 48. E. 3. ibid. against him, or other matter of Record: in that case he must answer, and the jury shall not inquire of the circumstances, foot the Court shall pled and maintain for him. The like inquiry of the circumstances 28. Ass pl. 21. shall be, if in an assize brought against him he pled to the assize at large. Otherwise it is if he pled in bar, for there if the plaintif make himself title as by a statute merchant etc. and the infant traverse the title which is found against him, the plaintif shall have judgement without enquiring of the circumstances, because the issue is taken out of the point of the assize, and therefore is all one as if the infant were of full age. So that it is better for an infant to pled unto the assize at large, than otherwise. The form of an Assize of novel Disseis●● is Old N. B. 104. this, Rex vic' salutem. Quastus est 〈…〉 B. iniuste, & sine iudicio disseisivit e 〈…〉 tenemento suo in N. infra triginta ann●● i●●ltimos clapsos. Et idéo tibi praec' qd si pradi●●● fecerit te securum de clam' suo pr' os tunc 〈…〉 nement' illud reseisum de catallis quae i● i●s● capt', & ipsum ten' cum catal. esse in p●●●●sque ad proximam assisam, cum Iustic' ●●'i i● p●●tes ill' venerint. Et in earim fac ' 12 liberos & legales homines de visum illo videre tan' illud, & nomino eorum imbrevidri fac'. Et sum' en p●● 14. El. D. 310. for all. bonos sum' qd sint coram praefat' Iustic' ●r ' i●●● pr●fatā assisam parati inde facere recogn' ●● pona per vadium & saluos pleg' praed. B. vel 〈…〉 suum, si ipse inventus non fuerit qd tunc sit ibi ●● illud recogn' anct'. Et habeas ibi summ' 〈◊〉 pleg': & hoc breve. Teste, etc. If the tenant in a Mortdancester (be it tenant of the land, or tenant by his waranty) 40. E. 3. 48. 39 Ass pl. 13. traverse any point of the writ, as the dying seized of his Ancestor, etc. which goeth in abatement of the writ, yet the jury 〈◊〉 inquire of all the points: as whether the demandant be next heir, & whether his ancestor died within fifty years, etc. 〈…〉 one found against the demandant, 〈◊〉 the writ. But a plea in bar of the assize by matter of record, release, collateral war 〈…〉 or such other matter as is out of the 〈…〉 points of the Assize, is peremptory to the Tenant, if it pass against him. And ●● such a plea in Bar be found against the Tenant, and yet the jury inq 〈…〉 further, and found one of the points of the writ against the demandant, as that his ancestor died not seized, etc. he shall recover notwithstanding that, for such an enquiry 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 enquired 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 juries' direction in their verdict greater liberty is permitted in pleading, ● 9 E. 4. 3●. matter doubtful in Law, 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 administering as Executor and one administering as Administrator. The special matter may be pleaded together with the general issue, etc. As that 9 H. 6. 38. the Obligation put in suit, 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 waived, for it were perilous 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 assize of his freehold, and make his plaint of land and rent, he may abridge it 14. ass. Pl. 9 4. E. 4. 33. 14. H. 6. 4. for the rent. In an assize of his freehold in D. and demand two manors in D. he may abridge his plaint for one. But being of his freehold in D. and S. and demand one manor extending into both, he cannot abridge either of them, for then the writ remaineth not true. In a writ of waist and assign it among other things, in racing of a Copper 10. El. Dy. 172. fixed to the soil, he may abridge the waist assigned in that, so as thereby he falsify not his writ. But if the writ be Quare vastum fecit in domibus boscis & gardinis, he cannot abridge the waist supposed in domibus. In a writ of ward De custodia terre et heredis, and 39 E. 3. 10. count of the manor of D. and xv. acres of land, which in truth are parcel of the manor, and pleaded by the defendant in abatement of the writ: he may abridge his demand of the xv acres. In trespass de bonis et catallis captis, and count of money taken away ●9. E. 3. 20. Br. abridgem. 111. (for which this form will not serve, the money must needs be expressed in the writ) he may abridge the count touching that. Statutes. 21. H. 8. cap. 3. The demand of a thing entire may be abridged before verdict, though thereby the writ become false. After acquitaile 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 manslaughter or murder, the justices (by discretion) were wont not to proceed to arraignment 22. E. 4 Coro. 44. till the year and the day were passed, for otherwise if he should be acquit upon his arraignment, the parties appeal were lost. CHAP. 37. Of Trial by Battle. IN (a) Old Nat. Br. 1 writs of right and in appeals (b) See the manor of waging battles and performing it. 9 H. 4. 3. in an appeal of robbery 17. E. 3. 2 ●n an appeal of murder. that touch life, trial may be by battle at the Defendants choice. Therefore (c) Old N. B. ibid. 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 battle in a writ of right must be all by Champions. Therefore in a writ of right an Infant may join the Mice & try it by battle. So can he not in an appeal, for there it must be done in proper person: which Champions must be (a) Br. Chal. 1 96. freem●n, not villeins, & (b) 3. H. 6. 55. so is the issue taken that he is ready to defend it by the body of I. S. a freeman. Therefore (c) Bracton. for the Lord to offer his villain for his Champion in a writ of right, or in an appeal, is a manumission of him. And the Demaundants champion Westm. 1. cap. 40. so reciteth i●. must have seen him or his ancestors i● possession, and thereof take his oath. Statutes. Westm. 1. ca 40. Touching the oaths of the Champions it is thus provided, because it seldom happened, 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 deraigne the right, that from henceforth the Champion of the demandant shall not be compelled so to swear. The battle in an appeal must be in ●. E. 4. 35. proper person. And therefore there the Defendant is restrained from the choice of battle, and must needs try it by jury. If there be any notorious presumption of the fact in him, as that he broke prison, or escaped (a) 1. ass. Pl. 6. by flight being led towards prison for it, or was (b) 22. E. 4. 19 indicted for it. So in an appeal of murder, that he was taken in the act with a (c) 6. H. 3. Coro. 411. bloody knife, in an appeal of robbery, that upon fresh suit and hue and cry he was taken with the manner, having some of the money about him, or 22. E. 4. 29. of imbecility in the Plaintiff, as if he be maymed, or within age, etc. But against a Peer of the Realm Discourse of the Cust. of London. fol. 13. Stam. 108. bringing an appeal, the Defendant shall not wage battle, much less against the king either upon an indictment or appeal. 6. Ric. 2. cap. 6. Ousteth battle in an appeal of rape. CHAP. 38. Of Trial by witness. IN a writ of dower issue taken upon the 8. H. 6. 23. death of her husband shall be tried by witnesses. So shall no other case in the Law. CHAP. 39 Of Trial by wager of Law. IN some cases also the trial shall be by the Defendants oath, which we call 22. H. 6 41. waging of his Law. As 1. where the tenant in a praecipe quod reddat allegeth that he was not lawfully summoned according to the Law of the land. 2. in mere personal contracts, we call them simple contracts, as (a) 1. H. 6. 1. debts for money lent, or rend upon a lease for years of a stock of sheep, or such like: (but (c) 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 entire contract) detinue of a horse, or other personal thing: but not of a deed indented, or obligation, 34. H 8. Br. leygager 97. 18. E. ● 23. 39 H 6 35. ●7. H. 8. 22. or of a lease for years of land, nor in an action upon the case, for it is not by reason of any contract growing without deed, for in debt upon sale of a horse for x. l. if the plaintiff have a speciality of it, he shall estoppe the defendant to wage his Law. But upon detinue and count of a bailement by deed, yet the defendant may wage his Law, for detinue is the cause of the action, which may be discharged by matter en fait, as the defendants redelivery, or the plaintiffs taking 18. H. 8. 3. of it back again, etc. or privity of others, for in detinue upon a bailement by another man's hand, the defendant may wage his Law, because he is not to answer to the bailement, but to the detinue. So in debt upon a Contract by another man's hand. But not in account upon receipt by another man's hand, for there he must answer to the receipt: the defendant may wage his law. Therefore in such kind of actions exexutors 15. E. 4. 25. are not chargeable, as in debt upon sale of goods to the Testator, & (b) 2●. E. 3. 40. though the party have a tail ensealed of it, for that is no speciality: or for (c) 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 (d) 10 H. 6. Execut. 21. debt upon arrearages of an account made by the Testator before Auditors (who are judges of record) or (e) 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 24 E. 3. 39 18. E. 3. 4. King. Therefore in an attachment upon a prohibition the party shall not wage his law that he did sue forward contrary to the King's prohibition, for the King is quod amodo party of the contempt. And for this cause 50. E. 3. 5. also, debt upon a simple contract shall not be forfeit to the King by outlawry, for then the party were in worse case than 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 account feigning 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 judge's discretion upon examination of the Attorneys, or whom else they please to receive, or oust the defendants of their law. 3. In plaints in Court Barons personal things under 40. s. yet (by prescription) 1●. H. 7. 18. it may be by jury: which i● against the common course and order of it. CHAP. 40. Of Demurrers. AN issue of the Law which we call a demurrer, is when admitting the 7. E. 6. Pl. 85. matters alleged either of them resteth in the judgement of the Law. The form of joining a demurrer is, Et praed. quer' dicit quod placitum praed. definimus sufficiens in lege existit ad ipsum, the Plaintiff, ab actione sua praed. etc. praecluden. quodque ipse ad placitum illud modo & forma placitatum necesse non habet, nec per legem terre tenetur respondere, unde pro defectu sufficient. responsionis petit judicium, etc. Et praed. Def. ex quo ipse sufficient. matter in lege ad praed. quer' ab actione sua praed. versus eum habend. praecludend. superius allegavit quam ipse paratus est verificare, quam quidem 〈◊〉 praed. quer' non dedicit, nec ad eam equa●●●●● respondet, sed verificationem illam admitte●● recusat petit judicium: & quoth praed. quer' ab actione suo praed. versus eum habend. praec●●datur. This being joined upon an exception 50. E. 3. 20. to the original itself or count for some fault appearing in it, doth only drive the defendant to make a better answer, which we call a respondes ouster, if it pass against him. CHAP. 41. Of Appearance. THus fare concerning pleading. The other mean acts are Appearance, and Continuance, or judicial process. Appearance is the parties coming into the Court. where upon (a) 12. H. 4. 24. 1. H. 6. 4. Common day given the fourth day after the very (b) F. N B. 25 ●. 1. H. 6▪ ibid. day is allowed, and so are all entries, obtulit se quarto die post. But so is it not upon a certain day given unto him, as Monday, Tuesday, or such like. When the party for not appearing 48. E. 3. 1. should have some great loss or corporate pain, as to have a Charter of pardon allowed where one before was outlawed at his suit, at a Sequatur sub suo periculo, when if he appear not, the land is lost: in a replevin, sicut pluries, when a Capias in Withernam 7. E 4. 15. 8. H. 6. ibid. 3. H. 6. 14. is to go against him, etc. he may appear though the officers return force him not to it, as if in the two first cases he return a nihil, or (that the beasts be esloined) in the latter. If the Plaintiff will not appear when 8. H. 6. 8. 3. H. 6. 13. 3. H 6. 50. 8. H. 6 ibid. 3. H. 6. 14. he is demanded at the day, which is called a non suit, or say in Court that he will not sue forwards, which is called a retraxit, and always of record, this is peremptory, and loseth him his action. But in real actions 10. ass. Pl. 12. in an assize. Old N. Br. 46. brought by many, if one will not prosecute the rest may alone. Except in the writ De nativo habendo, that is, favorem libertati●. For executors also Summons & Severance lieth in personal actions. 48. E 3. 14. Br Some & Seu. 9 7. H 6. 39 41. B●. default. 34. If the defendant will not pled, which is a nihil dicit, this in all actions, real and personal, is peremptory, and loseth the action. So in personal actions if he appear, and the (a) 7. H. 6. ibid. same term or otherwise, after (b) 38 H 6. 33. plea or (c) 18. E. 4. 7. demurrer joined make default. And this default shall never be saved, how good cause soever he have to excuse it, as fall of waters, imprisonment, etc. for to appear and pled, and not to maintain it, is a kind of nihil dicit. But either of the parties may for once, for one's common essoign 9 H 5. 5. 35. H. 6 33. lieth not after another without mesn degrees be excused of appearance, by an essoign which lieth not for him that appeareth in proper person (for it is to excuse his absence, whereunto his presence is contrary) nor that cometh in by exigent, or Cepi corpus (for he abideth in ward, or by mainprize and therefore cannot make default) if they cast an essoine, that is to say, demand it the 18. E. 4. 4. first day, or any of the four days, unless the other cast an exception, that is to say, enter an exception that no essoine be received. And the fourth day the essoine must either be allowed (and then it is said to be adjudged and adjourned) or disallowed. But upon every mean appearance a new essoin lieth, (a) 27. H. 6. 2. 21. E. 4. 16. though one were cast before (for the Pl and Def. if they list, may fourch infinitely by the common Law) As after issue upon a custom bastardy, or ne unque acomple en loyal matrimony, at the day of the certifying 39 H. 6. 29. the defendant may cast an essoign: After essoine of the demandant, if the Tenant at the second day be essoined, and at the third day demand the view and hath it. 27. H. 6. 2. Now at the day after the view, he may be essoined again, and at the day after that the demandant upon a wager of law in debt and day given to do it, if the plaintiff be essoined at the day, and at the day given by the essoine the defendant be essoined, now the plaintiff at the day may be essoined again. And this is called essoin de male venir, or the common essoine. Beside which essoines for special causes, as of being beyond sea, going ad terram sanctam, of the King's service, & d malo lecti are allowed And have (a) 27. H. 6. 1. a year & a day's adiournment, whereupon an (b) 2. E. 4. 16. oath must be taken that the cause is true But no such special essoine lieth in an assiss (c) 21. H. 6. 42. of novel disseisin, (d) 44. E. 3. 15. dower, (e) 27. H. 6. 1. assize of darrein presentment, 〈◊〉 Q●●●e impedit, for then the six months would pass and so the Church come in lap, for such essoines must have a year and a day's adiournment. But a Common essoyn lieth in all those cases. Statutes. Westm. 2. cap. 12. In an appeal of the death of a man no essoign shall lie for the Appellor, for whatsoever cause in whatsoever Court the appeal be. Westm. 1. cap. 41. In assizes and juris utrum after that the tenant hath once appeared, he shall be no more essoyned. Westm. 2. cap. 28. In like manner it shall be touching demandants in an assize. Westm 1. cap. 42. Parceners and joint-tenants in a praecipe against them shall have but one essoign. Glocest. cap. 10. So of a man and his wife impleaded in the King's Courts. 9 E. 3. cap. 3. Stat. 1. In a writ of debt against executours, they nor any of them shall have but one essoign 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 case where the parties consent to come without essoign. Marleb. cap. 13. After a man hath put himself upon an inquest, he shall have but one assoine. Westm. 2. cap. 27. After one hath put himself upon an inquest, an essoign shall be allowed him at the next day, but never after, whether he were essoyned before or not. Mar. cap. 19 None shall need to swear to warrant his essoine. Westm 1. cap. 43. The demandant may aver against an essoign (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 essoign 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 essoine shall not lie in a Writ of right between two claiming by one descent. 5. E. 3. cap. 7. Essoyne of the King's service, nor protection shall not be allowed in writs of attaint. 12. E. 2. Stat. of essoines. See many particular cases where essoynes lie not. CHAP. 42. Of Continuance. COntinuance is from day to day till the end of the suit, else (a) 24. E. 3. 48. 11. H. 7. 5. if the Plaintiff do nothing, it is called a discontinuance: if any error be in the continuing, as by awarding a Capias where ● 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 Die communes in Banco. Day's shall be given in writs nine returns, as coming in Michalmas term, from Octab. Mich. to Octab. Hillarij, etc. 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 v. returns. Marleb. cap. 12. In dower un de nihil habet, four or six days shall be given in the year. In Assizes of Darrein presentment and Quare impedit, from xv. to xv. days, or from ●. weeks to 3. weeks, as the place shall be near or fare. 5 E 3 cap. 6. and 7. In an attaint v. days shall be given at the lest. The suit of an excommunicate person shall be put without day, term paroll 〈◊〉 3. H. 6. 40. Litlet. jour till he be absolved And so is it in all ●ther 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 venunt. of the justices, cessor of the eyer, protection, etc. Statutes. 1. E. 6. cap. 7. By the death of the King no action, suit, 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 defendant may for once leave his former plea, & pled any thing growing since this latter continuance, which we call a plea puis darrein continuance. As if the defendant in an action of account pled receipt of parcel by the 21. E. 3. 49. plaintiff who wageth his Law: now at the day which the plaintiff hath to perform his law, the defendant may pled a release puis dairein continuance. Continuance is by process, or upon the Roll. That upon the Roll is a Dies datus, 21. E. 4. 16. 7. H. 6. 39 41. Br. default 34. or Emparlance. Dies datus when the Court giveth the party's 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, ● 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 Praece partium. So as if the defendant come upon the exigent Br. Contin. 14. by a reddit se, and be by mainprize, yet the plaintefe may have day by prece partium, notwithstanding that thereby the defendant shall be let out of ward, foot it is by assent of the parties. But in assizes the continuance is by a justiciarij nondum avisantur, and not by a Dies 22. H. 6. 12. datus. Emparlance is when the defendant demandeth day to see if he may end the matter 7. H. 6. ibid. without further suit, which he may do once, but not oftener without the plaintiffs consent: and is always after the Court. After which he cannot pled to the jurisdiction, person, or in abatement either of 18. H. 8. 6. the Count or writ. For (a) 22. H. 6. 7. after emparlance a Supersedeas of privilege out of the Chancery shall not be allowed: he cannot pled that the land is within the five (b) ports or (c) ancient demesn, etc. or that the Pl is a villain, or (d) 4. H. 6. 67. 16. E. 44. 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, viz to the person in an action of trespass 13. H. 7. 17. to his house broken down, but to the action he may: Nor misnomer as no such Town of D. where he is named I. S. of D. But where a praecipe quod reddat is brought of the manor of D. in D. there he may, for 32. H. 6. 27. 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 administered as executor he may, for that is to the action, nor demand oyer of the obligation, or such like, 4. H. 7. 10. but he may pled variance after, and so come to have a view of the Obligation and Condition thereof, whereby to pled any matter in bar. But after a special empariance, Saluis 4. H 6. 67. Br, Contin. 6. omnibus advantagijs, he may pled to the Count or writ and have oyer, but yet not in that case pled to the jurisdiction or person. In an appeal of Robbery, or such like, 22. E. 4. 1●. that toucheth life, if the defendant pled a plea whereby his life should come in jeopardy, the Plaintiff shall not empatle unto it, but must answer Sedente curia. Default after emparlance, that is, at the day given by the emparlance is peremptorie, and loseth the action in all actions whatsoever, 38. H. 6. 33. 1. H. 7. 11. Br. default 34. 39 H 6. 16. 38. H. 6. 33. real or personal, for it is a departure in despite of the Court. As in debt, trespass, or such like, the Plaintiff in this case shall recover his damages in a praecipe quod reddat, if the Tenant appear and emparle, and after make default, seisin of the land shall be awarded, and not a petit cape. In a writ of right if the tenant vouch, and the vouchees enter into the warranty and emparle, 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. IVdiciall Process is a Process out of that Court where the original is returned, prosecuting the action. And therefore upon an original returned ●arde, an alias and pluries shall go out of the same 22. Eli. Dy. Court Teste the chief justice, 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. judicial process are mesne process ●● in nature of new originals. Mesne process which is for any necessary act to be done, not only for the plaintiff against the defendant, but for either of them against any other, whose presence in the Court may be necessary for them. As against one that is vouched or prayed in aid 1. H. 6. 4. of. So against juries, witnesses, etc. So to execute judgements given, or any thing else necessary for the trial of any of their allegations. Upon a fine levied before it be engrossed the writs to compel atturnment are per Old N B. 171. quae Seruicia, when the fine is levied of a Old N. B. 170. signiory. Quem redditum reddit, when it is of a Old N. B. 170. rend charge or rend seek. Quid iuris clamat, when it is of a remainder or reversion. Old. N. B. 168. Statutes. 23. Eliz. cap. 3. Ply entry of record of an Atturnment upon a fine shall be utterly voided, except the party (mentioned to atturne) first have appeared in Court in person, or by attorney warranted by the hand of one of the justices of one Bench or other, or of one justice of assize, upon a writ of Quid iuris clamat, qu●m redditum reddit, or per quae seruicia, as the case requireth. In petitions whether in Parliament or Stam. praer. 73. elsewhere, and though the king 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 (b) 27. H. 8. 28. trespass (c) 15. Dy. 320. Ejection firm, or other (d) 27. H. 8. ibid. personal action, for there he is to loose nothing. A writ of search lieth, 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 seized (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 king's title be by an alienation in mortmain. Statutes. 14. E 3. cap. 14. In a petition and search granted after four writs, whether any imminent or remembrance be found for the King, or nor, the party shall be put to answer. So as every of the four writs be delivered to the treasurer and Chamberleins' xl. days before the day of the return. In real praecipes where a freehold is to 38. H. 6. 33. 8. E. 44. for the Demurrer 38. H. 6. ibid. be recovered upon 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 to the default only, not to the demand also, as in a grand Cape And therefore it is called a petty Cape, and the other a grand Cape, because there is less in the one then in the other. So upon a voucher a petit cape advale●● ciam. In those that are for other hereditaments, Old N. B. 179. not in point of signiory, as (a) 2. H. 4. annuity, (b) ●●. H 4. 1. Quare impedit, Quo iure, (d) 30 H. 6. 8. quod perm●itat, etc. upon default as before, a distress (c) Old N B. 71. 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 30. H. 6. ibid. is in the nature of a praecipe quod reddat, in as much as hereby he is to recover the land itself. The Process against jurors is first a Venire facias to the Sheriff to return Old N. Br. 171. them, at which day if they appear not, than 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 estreet 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, v. s. at the lest shall be returned in issues upon every juror, at the second, x. s. at the lest, at the third xiii. s. iiij. d▪ and ever afterwards the double of xiii. s. iiij. d. 2. G. 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 jury shall be taken, which we call taking of the jury by default: In an action of trespass always (a) Br. default 58. whatsoever the issue be, (b) 34. H. 6. 24. 2. H. 4. Br. enq de dam. 11. release, (c) 9 H. 5. 15. justification, etc. So in (d) 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 (e) 1. H. 7. 1. payment, or that an (f) 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 itself, release or other matter in writing, the plaintiff may there pray judgement if he william. But if he do not pray it, the jury shall be taken by default, as in an action of trespass. But in assizes of novel disseisin, nuisance, mortdancestor, darrein presentment, and juris utrum, the original writ commandeth The form of all these writs. (h) Old N. B. 106. in an assize of novel disseisin, and 25. in darrein presentment. a jury, as well as the defendants, to be warned, which Summons to the jury, serveth in stead of a venire facias. So that the process here against the jury is, Somon' habeas corpora & Distringas. And therefore there upon default after that original process ended, viz. the Attachment in an assize of novel disseisin and nuisance, the summons and resommons in a (i) F. N. B. 196. g mortdancestor, darrein presentment, and (k) F. N. B. 50. k. juris utrum, the inquest shall be taken by default, whether the default be presently after the resummons or after essoine, or plea pleaded. As it should be taken if the Tenant did appear. CHAP. 44. Of judicial process in the nature of new Originals. IVdiciall process in the nature of new 17. E. 3. 76. originals (in none of which any freehold shall ever be recovered) but damages only, are these that follow. First such as command to do some thing As, 1. Resommons or Reattachment, according as a Summons or attachment lay in 5. H. 7. 40. the first action, to receive in the former plight a suit put without day. And may either revive the original alone, or the whole proceeding by special words, in that Resommons or attachment, as if it be against the tenant after a voucher; the voucher is not received, unless special mention be of the vouchees also, nor any plea at all is revived but the original only. But in every Resommons after an issue, the issue is revived, for day is given to the jurors expressly; So is all the pleading by a special resommons. But no such resommons nor reattachment shall be upon a discontinuance, 24. E. 3. 48. Br. res●●●. 33. ●hough it be in a writ of ward, where a re●ommons is given by the Statute, for upon ● discontinuance the original is determined. 2. All certificatorie writs, as if in a F. N. B. 14. writ of right close brought in ancient demesne the tenant vouch a foreyner to warranty, and after purchase a Warrantia chartae returnable in the Common place against the vouchee, and thereupon a Supersedeat to the Bailiff in ancient demesne Now if the plea of Warrantia chartae 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 certify the King in his Chancery of it. To the end that if it be so, the Bailiff in ancient demesne may proceed. So upon a Monstraverunt F. N. B. 16. c. sued against the Lord in ancient demesne, and an attachment thereupon, because he shall not be driven to answer to the attachment till the Court be a serteyned whether the lands be ancient demesne, o● no: the Plaintiffs in the Monstraverunt must sue a special Writ to the Treasurer, and Chamberlayns of the Exchequer to certify it. In like sort upon an Indicavit purchased, F. N. B. 52. because the tithes amount to the fourth part of the value of the Church, the other may have the Kings Writ directed to the Bishop to certify the King in the Chancery of the value of the Church, to the end that if it amount not to that value, he may ha●● a Consultation. So upon surmise made i● F. N. B. 59 b. the Chancery, that the King's Comitee of ● ward hath done waist, a writ shall go fort● to the escheator to certify the King thereof ●nd so in all other like cases. 3. Cerciorare to remove a record out of 36. H. 8. Br. Cercior. 20. Court of record into the Chancery, for ● record shall be removed into the Common place, nor no indictment taken in the country into the King's Bench immediately ● any Certiorare, but first it must be certi●d into the Chancery by a surmise, and ●m thence sent into the Common place, ● King's Bench, as the case is, by a Mitti●. 12. E. 4. 11. And every writ of error is a Certiorare ●t self. 4. To remove suits out of Court Ba●s, for a Recordare, Pone, or such like, are ●no other intent but only to remove 3. H. 6. 3. ●ewhat into the King's Court, and are in ● nature of a Certiorare. And upon the re●uethe recordare or pone is determined, for ● plea shall not be holden upon them, but ●n the plaint that is removed, and the ●t pledges shall stand. And these may be without showing any cause in the writ, if ● remove be at the Plaintiffs suit: but ● without showing good cause in the ●it if it be at the Defendants suit. As ●ng to remove a plea in a writ of right to Fitz. N. B. 4▪ b. ●w that the Bailiff is heir to the land, or ●eth upon him to maintain the matter have part of the land, or that the Te●t hath alleged bastardy, or pleaded a ●reine plea, or joined the mice upon the ●nd assize, etc. being to remove a plea in Fit. N. B. 70. b. ●pleuin by plaint, to show that the de●dant avoweth for damage pheasant, and the Plaintiff justifieth by reason of C●●mon of pasture, which is a plea touc●● freehold, and therefore should not be w●● out writ. These are either to remove pleas ● writ, or by plaint without writ, Of the ●● sort are a Tolt and Pone. Tolt or Tollas is for the plaintiff, but ●●uer Old N. B. 2. Fit. N. B. 4. a. for the Tenant, to remove a writ ● right out of the Lords Court into ●● County Court. And because this being ● Old N. B. Ibid. the plaintiffs suit may be without ●● cause, therefore this clause is put in eue●● writ of right patent, Et nisi feceris vice c 〈…〉 faciat. Pone is to remove into the Co 〈…〉 place in all other cases, viz. (b) F. N. B. 4. b c. save on●● in the case of a writ of right to be remo●● out of the Lords Court into the Cou●● Court. As (c) F. N. B ibid. writs of right removed i●● the County Court by a Tolt, (d) F. N B. 125. f. In admeas. of pasture. justicies ●● Vicontiel writs in the County Court, repl●uins by Writ either (e) F. N. B. 69. ●n. there or (f) F. N. B. 70. a. in a●● other Court Baron. And all this indifferently, (g) F. N. B. 69 m. & 70 a in a repleu. & 125. f. in Admeas of pasture. Old N. B. 2. in a writ of right. either at the plaintiffs or at the defendants suit. So upon a (h) F. N B. 77. ●. Native 〈◊〉 sued in the County, if the defendant allege himself frank, the Lord is driven to ●●moue it by a pone. But a pone to remo●● replevin by writ out of any other Co●● Baron then the County Court cannot ●● without showing cause, though it be at t●● plaintiffs suit. Of the second sort are a Recordare, ●● 3. H. 6 30. Accedas ad Curiam. In both which noth●● ●t the plaint shall be removed, (a) F. N. B. ibid. though ●ey be at issue. Recordare (b) F. N. B. 70. b. is to remove plaints in mountie Courts. Every (c) F. N. B. 18. a. b Writ of false ●dgement upon a judgement given in the mountie Court is a Recordare in itself. Accedas ad curia, is to remove plaints in F. N. Br. 70. b. & 18. d. ●y other Court Baron (e) F. N. B. 18. d. Every Writ of ●se judgement upon a judgement giuen ● any other Court Baron then the County ●ourt, is an Accedas ad curiam in itself. This also upon good cause showed in ●e writ, lieth for the tenant to remove the F. Nat. Br. 4 a. ●a in a Writ of right out of the Lords ●ourt immediately into the Common ●ce. 5. Mittimus to sand a Record out of the chancery, whether being certified thither afore by a Certiorare, or howsoever else be●g there, into another Court of Record, to ●e end they may proceed upon it. But the chancellor may sand such a Record by F. N. B. 22. g. ● own hands, without any Mittimus, if please him. 6. Procedendo to proceed in suits. As if F. N. B. 3. c. ●e Lord upon a writ of right sued in his ●ourt will not hold his Court, the demaun●nt may have this writ unto him, if a man F N. B. 17. ●. ●use himself to be essoyned of the King's ●uice in any action where indeed he is not ● his service, the Plaintiff or demandant ●y have this writ directed to the justices ●mmanding them to proceed. So where F. N. B. 24. ●e justices in any Court delay the Pl or the defendant, and will not give iudgeme● for him where they aught to do it, the p●●tie grieved shall have a procedendo ad I●dicium. Of this nature is a writ of consultati●● to proceed in the spiritual Court, wh●● Old N. B. 32. one suing there for matters belonging ●● that Court, as for matters testamentary, ●● concerning matrimony, etc. is by a prohibition restrained to prosecute the suit. Statutes. 24. E. 1. De consultacione. A consultation to be awarded by the Chancellor ● chief justice of the King, upon sight of the libel at the instance of the Plaintiff. 50. E. 3. cap. 4. Upon a consultation 〈◊〉 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 cha●ged. 7. At writ of mainprize to set at liber●● one bailable finding bail, that is to say, sufficient persons to be bound for him ●● F. N B. 249 g. surety to answer the action, which in respect of delivering him into the hands ●● his friends the sureties, is called Bail, i● respect of their taking of him is calle● mainprize. Such persons bailable be they wh●●● 4. E. 6. Pl. 67. are taken upon a Capias original. But not the defendant in (a) 6. H, v. 1. c. Appeal of Maim, if the Maim be heinous: nor (b) West 1. ca 15. Stamf. 71. & 72 In case of the death of a man. the principal in an indictment, or appeal of Felome, (c) Stamf. ibid. nor the accessary after attainder of the principal, (d) Diu. of court's 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 distreyned before for rent or services, but F. N. B. 71. c. Fit. ibid. not for damage pheasant: for there as often as they are so found upon ones land, it is lawful to distrain them. For every time is a new wrong, and a new trespass, are Fit. ib. 72 g. Fi. ib. 72. c & 71. ● distreyned again for the same thing, hanging the plea in the County Court, or before the justices. 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. And here the goods distreyned, must be the same parties goods. Fit. ib. 71. b. Fit. ib. 71. i For if the Lord first distreyned his tenant, and after the beasts of a strager, no Recaption lieth. But upon a distress of two men's beasts first, and after of the beasts of one, it lieth for that one: so upon a distress Fit. ib. 71. e. Fit. ib. 71. f. of beasts which a man hath in common with another, and after of such beasts as are his 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 bailiff distreineth again by his commandment, or without his commandment, if he agreed afterwards to it, as by joining with his servant or Bailif when they pray in aid of him. Otherwise not, though the bailiff make conisance in his right: for it may be he hath no notice of it, and the party hath remedy against the bailie by an action of Trespass. But this writ lieth not Fit. ib▪ 72. d. after Non suits in the replevin; because there the plea is not hanging: but before avowrie in the Replevin it doth, for the plaintif 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. But upon a Fit. ib. 73. e. Replevin sued by plaint or writ in a Franchise, and not before the sheriff or the king's justices, no recaption lieth, though he be distrained 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 suit be removed before the justices by a Pone or Recordare, there a Recaption lieth 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 amereed, 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 avowrie, as he should in a Replevin, but only may justify the taking, as in an action of Trespass. 9 A writ De magna assisa eligenda to the sheriff, to summon four knights to choose Fit. N. B. 4. ●. the grand Assize, when the mice is joined thereupon in a writ of Right. And this is a mere judicial Writ issuing out of the Common place when the plea hangeth there. But when the plea is in the Lord's Court, or in the County Court, than it is an original writ out of the chancery. 10 A Certificate De Assize upon a verdict 7. E. 6. Pl. 85. given in an assize that is no perfect, whether not well examined by the justiees, or not fully inquired of by the jury, to bring in the same jurors to give a more perfect one. And this must be sued in the same county where the assize was sued, and may be F. N. Br. 181. ● as well before other justices, as those that took the assize: if the king's Bench, or common place be in the county where the Assize passed, then this writ may be sued there. And beside the writ itself directed to the Fit. ibid. d. sheriff, the justices must have a patent made unto them as in the assize itself. 11 Proprietate Probanda unto the Sheriff to inquire whether the property be to the plaintiff or defendant, when upon a replevin F. N. B. 77. c. 2. El. Dy. 173. sued, the defendant claimeth property, which determineth the sheriffs power to make Replevin. And this also may be mere judicial issuing out of the King's bench (a) 1. E. 4. 9 or common 2. El ib. place, (b) 2. El. ib. and returnable there. Secondly hither belong those that be prohibitory, or restrain from doing something where the prohibition itself is in lieu of a Summons. And after that, the process is an attachment and distress. So in every writ which is upon a prohibition broken, F. N B. 163. d. Old N. B. 30. Old N. B. 28. as a quare non admisit, quare incumbravit: for every breach of a prohibition is a contempt in itself. Of this sort are 1 Prohibitions to restrain the party from suing in an inferior court, that aught not to hold plea of it: as in the spiritual court, for (a) Old N. B 30. any plea that concerneth not matrimony & wills, as for goods or debts, etc. and (b) 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 speciality, or debt, etc. against executors upon a simple Contract made by their testator. Or Pro laes●●ne fidei against one which hath waged his law in an action of debt upon a simple contract 19 H. 6 Old N. B. 31. F. N B. Ph. and sworn falsely. So if the Bailiff in a Court baron hold plea of matter above xl. s. 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 Defendants patron when the right of avowson of any part of ones tithes is in demand in the spiritual Court, between two Clerks claiming from several patrons. So as the Indicavit is always between 12. E. 4. 13. four persons, whereof two are patrons, 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, the Fit. N. B. 36. 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 lieth though it be 38. H. 6. 20. but the right of the twentieth or thirtieth part of tithes that is in demand, for at the Common Law the Court Christian had no power to hold plea of any part of dimes, but a prohibition lay till the Statute of Westm. 2. cap. 5. which will have an Indicavit to be of tithes to the value of the fourth part of the Church at the lest. But before that, it might have been of the xx. 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 tithes of v. acres or x. acres, or one acre. But now since by the same Statute an Indicavit shall not be granted of less than the fourth part, therefore there is a writ of the avowson of the tithes 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 tithes 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 tithes. And after the plea deraigned in the King's Court, than it shall proceed in the Court Christien. 18. E. 3 cap. 7. pro clero & cap. 47. Writs of Scire facias to answer of dimes in the Chancery, and to show why such dimes aught not to be restored the demaundants shall not from henceforth be granted. Saving the King's right as he and his ance stors were wont to have 2. A Supersedeas to stay any further proceeding in the suit. As if a writ of trespass F. N. B. 239. d. F. N. Br. 13. g. vi & armis be brought in a Court Baron, if upon a writ of right close brought in ancient demesne, the demandant and tenant put themselves upon the grand assize, or the Tenant vouch a forreyner, or plea a foreign plea which cannot be tried there, if a Clerk of the Chancery or any of the servants of F. N. B. 4 〈…〉 the Chancellor, 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 Lord's Court, vouching one to warranty out of the power of that Court, we 13. E. 3 vouch 269 c. E. 1. droit 45. call it a foreign voucher, or joining the mice upon the grand assize to have the matter c. E. 1. ibid. respited till the justices in Eyer come thither. Which if he bring not at the next Court day, after such voucher or mice joined, he loseth his tenancy, the reason is, because the Lord cannot make a grand assize to come. But if battle be joined, that shall c. E. 1. ibid. be determined there, and after such a writ brought the plea may proceed by leave of the justices. As if the vouchees 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 13. E. 3. ibid. vouched him, 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 the justices in Ei●r. And therefore must be brought before any Old N. B. 46. pone delivered by the Lord to the Sheriff to removeit. And this is a Supersedeas to the Lord not to proceed till the day of adiournment, nor to cease the villain till the plea discussed. Statutes. 25 E. 3. cap. 18. The Lord may seize the body of his villain, notwithstanding that a Writ. De libertate probanda be hanging. Idemptitate nominis for one molested by a suit against another of the same name. As if he be taken by a Capias or Exigent awarded F. N. B. 267. e. against the other, or distreined by 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 for him, unless it be in special causes where the plaintiff F. N. B. 28. g. doth become defendant, into his protection for one year to be free from all 39 H. 6. 38. suits. Writs of dower, Quare impedit assizes, Old N. B. 21. 39 H. 6. ibid. of novel disseisin, and pleas before the justices in Eyer are accepted Therefore it shall for that time save all defaults. So as 21. H. 6. 20. 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. And a man may excuse Fitz N. B. 29. b. 39 H. 6. ibid. his default at a Grand cape, or petit cape by casting of a protection. But a protection can endure no longer then 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 resommons 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. No protection shall be allowed in writs of Attaint. This kind of protection is double. Protectio 39 H. 6. 38. quia profecturus, when he is to go beyond sea in the King's business. Protectio quia moratur, when he stayeth F. N. B. 28. ●. there about it. Of which nature is also a protection quia in prisona, when being sent beyond Sea in the King's wars he is there taken and detained in prison. The going or staying about the King's business in F. N. B. 28. g. 39 H. 6. 39 the marches of Scotland, or such like places is counted as beyond Sea. But a protection quia moratur super altum mare, is not good, for it cannot be intended that he doth abide there. Statutes. 13. Ric. 2. cap. 6. A protection in respect of going beyond Sea disallowed (except it be in voyage Royal, or business of the Realm) where it beareth date after the suit commenced. And the Lord Chancellor hath authority to repeal it, if he go not in convenient time, when he returneth. A Statute of protection, 33. E. 1. Averment is given against petition for the king's 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 F. N. B. 28. b. his protection, that no other creditor shall sue or atrest 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 judgement against the king's debtor, notwithstanding such a protection. But not execution, unless he take upon him to pay the king, & then he shall have judgement and execution of both debts, as well of that due to the King as to himself. He may also by a writ called Warrantia diei, rehearsing that one which should appear F. N. B. 17. in proper person, whether it be the plaintiff or defendant, is in his service, will that for one day no default be recorded upon him. So as if the tenant in a praecipe quod reddat make default at the grand Cape, or petit cape: yet before judgement 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 King's 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. 4. Essoyne de malo lecti, is a writ to warrant 19 H. 6. 57 an essoign 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 adiournment is in that essoine. Statutes. Westm 2. cap. 17. In an Essoine 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 essoine shall not lie in a writ of right between two claiming by one descent. 5. A Ne admittas for either party, plaintiff or defendant, in a quare impedit, or assize, F. N. B. 37. f. of darrein presentment to the ordinary, not to admit the others Clerk till the matter be discussed. And this must be sued within 6. months and not after, for after the six months it F. N. B. ibid. is lawful for the ordinary to present by laps, but being sued within the six months the ordinary may neither himself (b) F. N B. 48 l. collate within six months (but afterwards by laps he may) nor (c) Fit. ibid. admit the others Clerk at any time, (d) F. N. B. 48. b. though it be after the six months, 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. A quare incumbravit for him that sueth F N B, 48. c. a Ne admittas, and after recovereth, in a Quare impedit, or assize of darrein presentment, though it be after the six months, but before recovery no quare incumbravit lieth against the ordinary for incombring the Church, contrary to the ne admittas. But of a collation or admittance before a F. N B. 48. b. 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, though F. N. B. 48 q. the Church become voided hanging the writ, and the Bishop do encumber it, for the demandant there shall not recover the presentment but the avowson. And if he have title to present, he may present, and upon disturbance have a quare impedit. CHAP. 45. Of judgements. THus fare of Suit. judgement 10. El. Dy. 26. 8. The writ of false judgement shall be Recordare fac. loquelan quae fuit in eadem curta and not quae est, for by the judgement loquela is determined. 10. E. 3. Stam. praer. 78. is the Courts final determination of that suit. Upon judgement against the King in a petition, he is presently out of possession. And therefore every judgement is in itself a moveas manu, or an ouster lemaine In a writ of right the judgement after issue joined is final on either side, not only when it passeth by verdict, or vanquishing of the others Champion, but where the demandant is (c) F. N. B. 6. 3. Eli Dy. 301. non suit, or the (d) F. N B. 6. Tenant maketh default, or the (e) 26. H. 8. 8. F. N. B. 31. d. vouchee after such an issue joined by him, departeth in despite of the Court, etc. Prerogative. Against the King judgement is not final, but is always with a Saluo iure Regis. Recoveries in a writ of right bind all 5. E. 3. 50. 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, though he be prayed in aid and make 34. H. 6. 2. 4. H. 7. 3. default. for no aid prayer is there 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 24 H. 8. Br. fau. reco. 41. for life, he may falsify it by action of Ad terminum qui preterijt, or writ of right which we call falsifying of recoveries. But he cannot enter, (a) 26. H. 8. 2. neither can lessee for years at the Common Law falsify for having but a Chattel derived out of a freehold, there is no reason he should falsify 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 voided 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 falsify recoveries only for their own Term in such sort as Tenants of the freehold, neither party nor prinie to the recovery might at the Common Law. In a Writ of dower by garden in soccage Lit. 9 against garden by Knight service, she shall at his prayer be adjudged to endow herself wholly of the land in soccage. And this is called Dower de la plus beale. But such dower shall not be where the woman is Park. 88 garden en fait by knight service, nor where all the husband's lands were holden in soccage, and she brings her writ of dower against the heir: nor where she brings it against her husband's feoffee with warranty, for he may vouch the heir. A debt acknowledged in Court of Record either to the King or to a Common, is in the nature of a judgement, and called a Recognisance. And therefore such a matter acknowledged by an infant, cannot be avoided but during his nonage only. As a (a) 18. E. 4. 13. fine by writ of error, a (b) 7. El. Dy. 232. 18. E, 3. 5. Recognisance, Statute, or such like, by an Audita quaerela: for it shall be tried by inspection of the Court, whether he were within age, or no. In appeals of (c) 41. E. 3. tres. 199 maim, enditements or appeals of (d) 40. E. 3. 42. felony, the accessory shall not be compelled to answer till attainder of (e) 1. Mar. Pl. 99 3. H. 7. 12. 4. E. 6. Br Cor. 185 all the principals, by verdict, outlawry, or though it be by taking him to his Clergy, or abjuration So as if the principal die (f) 21. H. 7. 31. or have his (g) 3 H. 7. 12. pardon before, or if two men be indicted, one as principal, the other (h) 12. E. 3. Cor. 378. as accessary, and the principal be afterwards attainted of another felony and hanged: the accessary shall be discharged And (i) 3. Mar. Dy. 120 if one of the principals be not attainted, the Accessary shall not recover damages against the A bettor, 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. He that is or by possibility may be with in orders, for one being within orders (if Stam. 133. he show them, or the ordinary certify 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 lest, may have the benefit of his Clergy, save him either from judgement when the Clergy is prayed before, or from execution if it be prayed after, if he be found culpable by verdict, or his own (k) Stam. 138. d. confession either before the Coroner, or the justices of any bar, felony, where life or member is to be lost, be it upon an indictment or appeal, but (l) Stam. 124. not for killing a man by misfortune, or se defendendo, nor yet for petty Larceny, for in these cases he is not to have judgement of life or member. Not more in case of high Treason, or petty Treason. And such a (m) Stam. 130. ●. Clerk might indeed by the ancient Law have had his Clergy before he were indicted But now he shall not have it upon his arraignment, unless he pled to the felony and be found guilty: for otherwise he should loose his goods by an inquest of office, to which he could have no challenge ●s he may have to this. But yet he may waive this benefit and pray his book after ●he inquest, and before their coming ●acke. In which case notwithstanding, the verdict afterwards shall be taken And that ●s in favorem vitae: because if the jury found ●im not guilty, he shall be charged. And his possibility (there being no other impediment) as if it be a woman, a blind, or a maimed man, shall be tried by the judges. And therefore if the ordinary challenge ●im, where he readeth not as a Clerk, he ●hall be fined and the party hanged. Or if ●ee refuse him when he doth read as a Stam. 123. d. 9 E. 4. 28. Clerk, the ordinary shall be fined, and the ●artie discharged, for the Court are judges ●f his reading. And the ordinary is there only to challenge him for his Clergy, for the entry is, Legit ut Clericus ideo tractator 9 E 4. 28. ordinario, by his ableness to read a verk, though he cannot read without spelling. But if he can read but here a word & there a word, and no three words together, quert whether that be sufficient. Clergy is the delivering of him to the ordinary to be kept in prison. If it be before judgement, in which case we call him a Clerk convict, he shall Stam. 138. 6. be tried there by a jury of Clerks. A●● therefore purging himself shall go ●● large. Therefore is a writ to command the Stam. 138. ordinary to admit him to his purgation. Not purging himself, but being found culpable by those Clerks, he shall be only degraded. But upon an appeal of Robbery, or such like, no purgation shall be admitted. Stam. 139. b. The reason seemeth because than 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. A Clerk convict shall not answer to any Stam. 108. offence committed before. Prerogative. A Clerk convict forfeiteth his chattels: And shall never have restitution, 5. E. 6. Br for'rs. 113 though he make purgation. Notice 〈◊〉 be given to the King of the time before the Stam. 138. party make purgation. If the Clergy be after judgement, in which case we call Stam. 138. ●. him a Clerk attaint, he shall remain in perpetual prison. Statutes. 25. H. 8 cap. 3. Reviued. 5. E. 6 cap. 10. One arraigned upon an indictment of petty Treason, wilful burning of houses, murder, robbery, or other felony, according to the meaning of the same Statute, if he stand mute of malice, or froward of mind, or challenge peremptorily above xx. or will not directly answer, shall loose his Clergy, in such manner as he should if upon the arraignment he had been found guilty. 25. E. 3. pro clero, cap. 4. Convict of petty Treason shall have it. 18. Eliz. cap. 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 in Buggery. 5. E. 6. cap. 9 None for him that robbeth any person in any part of his dwelling house, 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. & 5. Ph. & Ma. cap. 4. None for him that maliciously commandeth or hireth any to commit petty Treason, or wilful murder, or robbery, in any dwelling house, or in 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. & 5. E. 6. cap. 10. He that doth a robbery or burglary in one County, and is taken with the goods so rob or stolen, in another County, shall loose 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 a certificate. 4 H. 7. cap. 13. He that hath 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 Parliament in all cases where Clergy lieth at the common Law, or is restrained by Statute, shall upon his prayer be adjudged as a Clerk convict, though he cannot read. 8. Eliz. ca 4. & 18. Eliz. ca 7. After purgation he shall be put to answer to any such offence (committed before his admission to the 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. Eliz. 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 a 'bove a year. Outlawry is a judgement, which in case of criminal offences we call an Attainder in itself. 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 ut lagatus fuit. So is abiucation an Attainder in itself (and (a) Stam. 122. c. that the strongest that can be being by his own confession) and a (b) 4. Eli. Pl. 262. forfeiture of his lands. And there is a writ of Eschete of land for felony, pro qua abiuranit regnum. And therefore (c) 3. E. 3. Cor. 33● he that is hanged upon judgement against him, and becometh alive again, cannot abjure (but an abjuration in that case is in escape) for one cannot have two judgements for one offence. The offendor upon a presentment in the Leet or sheriffs turn shall be amerced. 2. H. 4. 24. 8. R 2. avowry 194 The defend ant in an appeal of felony, being acquitted shall have judgement also to recover damages against the Plaintiff. Stam. 167. c. Stam. ibid. 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 procurers or abettors were to be recovered at the Common Law only, by writ original, that is to say, by writ of conspiracy, and not otherwise. Statutes. Westm 2. cap. 12. One being acquitted upon an appeal, or indictment of felony, may have the abettors enquired, 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 judgement, 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 suit. CHAP. 46. Of judicial Writs to execute judgements. THese judgements have their judicial writs belonging to them, both mere judicial writs, for the execution of them, and new originals in the nature of judicial writs, to undo some matters concerning judgements. Mere judicial writs in real or personal actions, are either such as lie only within the year and day after the judgement rendered, or a Scire facias. Those of the first sort are between the 14. H. 7. 15. 19 15. H 7. 5. parties to the recovery, for otherwise though it be within the year, he that recovereth is driven to his scire facias, as if it be for debt or damages recovered against a 38. E. 3. Scire fac. 77 14. H. 7. & 15. H. 7. ibid. fem sole, who afterwards taketh a husband, or by or a 'gainst ones predecessor or Testator, and in the same Court where the recovery was, for if the record of a recovery in an assize of novel disseisin be removed within the year into the Chancery by a Certiorare, and from thence to the Common place by a Mittimus, or removed by writ of error out of the Common place into the K. Bench, & the judgement 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 Certiorare and Mittimus, within the year no execution shall be by an habere facias seisinam, but by a Scire facias only. But although the judges of the Common place should all dye within a year after their judgement, and other justices 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 Eyer come into the County, where one hath recovered before the justices of Assize, they may award execution by a Scire sacias within the year. Of this kind are upon recovery in real or mixed actions. Habere facias seisinam to put him in posfession upon a freehold recovered, in an assize, F. N. B. 167. praecipe quod reddat, etc. Habere facias possessionem, upon a Term for years recovered, as in an Ejection firm, etc. A writ to the Bishop to admit one's F. N. B. 38. b. & f. Clerk upon a presentment recovered in a Quare impedit, or assize of darrein presentment: If the suit be against the Bishop himself, than this writ may be to the same Bishop, or to the Metropolitan at the party's choice. Those upon a recovery in personal actions, are ●●●woforts, either to have execution 27. El Coo. 11. Sir Wil Harbertie of the profits of his land & Chattels, or a Capias ad satisfaciendum. But in Court Baron's Execution is only by distress, and impounding till the 4. H. 6. 17. 22. of. Pl. 72. party be satisfied: for they have no power to cell or deliver the distress to the party, neither doth any execution by the body lie there. In those of the first sort execution shall be of any (a) Old N. B. 165. 42. E. 3. 11. 2. H. 4. 14. land which the party had day of the judgement rendered, but for (b) Old N. B. ibid. 2. H. 4. ibid. chettels (though it be (c) 24. Eliz. leases for years) o●●ly those which he had day of the execution sued. (d) 24. Eli. ibid. So as if he cell his goods bona fide, after judgement, 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 al. But an alienation made after the Teste of that second writ had been nothing worth. Of this kind are a Scire facias, and a Levari facias. Fierifacias to lente execution of his goods and Chattels only. Levari facias 15. El. Pl. 441. Old N. B. 165. to levy execution of the profits of his land and Chattels. The form is, Praedicta pecuniam de terris & catallis praedicti (the defendant) levari facias, Ita quod ea habeas in ett ' 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 rends payable by the Tenants in execution of the debt, but not to seize the land, and deliver it to the party. Statutes. West. 2. cap. 13. He that recovereth debt or damages in the King's 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 blow beasts) and the moiety 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 assize: and afterwards a writ of redisseisin if need be. ●1. E. 1. Stat Acton Burnel. A debt acknowledged to a Merchant, before the Mayor of London, York, or Bristol, or before a Mayor or Clarke (appointed by the King thereunto) shall be enroled. And if it be not paid at the day, the debtor's 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 prize too high; if they have not moveables sufficient, than he shall be imprisoned till, etc. 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 warden of a Town, which the King shall appoint, or other sufficient men when they cannot attend, and before a Clerk which the King shall assign, shall be enroled, and if it be not paid at the day, the debtor if he be a lay man shall be imprisoned by the Mayor till, etc. if he be within their power, else by writ out of the Chancery upon Certificate of a Recognisance thither. And if he agreed with the ereditor within a quarter of a year after, than all the lands which were the debtors, day of the Recognisance made, and also his goods, shall be delivered to the creditors upon a reasonable extent. And of these lands so delivered, the conisee being ousted, shall have an assize or redisseisin. 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 to deliver the same upon reasonable extent, and to what sheriff he will to take his body. The like process shall be against the pledges if the money be not paid at the day. If the debtor or pledges dye, the creditor shall have execution upon the lands of the heir at his full age. 27. E. 3. cap. 9 The Mayor of the Staple shall take Recognisance of debt before himself and the Constables of the Staple, whereupon default of payment being made the debtor's 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 seize their lands and goods which shall be returned in the Chancery, and execution thereupon in all respects as in the Statute Merchant. Save that the debtor shall have no advantage of the quarter of a year. 5. H. 4. cap. 12. A Statute being once showed in the Common place, and the process afterwards discontinued, yet execution may afterwards be awarded without showing it again. 11. H 6. cap. 10. He that is in prison upon a Recognisance, 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 Mayor of the Staple of Westm with the Recorder of London may take Recognizances. 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 Recognizances within four months next after the acknowledging, to enter a true copy thereof, shall be against all persons, their heirs, successors, executors, administrators, and assigns only, which for good consideration shall after the acknowledging of the same Statute purchase the land, or any part liable thereunto, or any rent, lease, or profit of it. 32. H 8. cap. 5. Lands lawfully delivered in execution upon a judgement or Recognisance, being evicted without any fraud or default in the tenant before he have levied the whole debt and damages, the recoverer and the Recognisee shall have a Scire facias out of the same Court where execution was awarded, returnable there full forty days after the date And thereupon a new writ of Execution of the nature of the former to levy the rest of his debt and damages, if the defendant make default, or show no good matter in bar. Magn chart cap. 8. The King shall not take the lands or rents of the debtors, if he have sufficient chattels. Magn chart cap. 18. The goods of the debtor may be attached after his death by the view of lawful men. That nothing shall be meddled with till the King's debt be paid. 33. H. 8. cap. 39 All Obligations to the king shall be of the force of a statute staple. Prerogative. The King may have a distringas to levy an amercement, or such like, by distress ● sale, whether it be an Amercement in the Leet, or Sheriffs turn, or otherwise. A Capias ad satisfaciendum is to take his Old N B. 167. body in execution, for satisfying of the party. And this is always upon a recovery 17. El. Coo. 12. Sir Wil Harbertie 2. H. 4. 6. in a personal action where a Capias lay. Therefore it lieth not in any real action as in a writ of dower, or other proecipe quod reddat, nor at the Common Law in debt, detinue, account, etc. but in actions of 40. E. 3. 25. 49. E. 3 2. 49. E. 3 ibid. trespass, and such like. And here an exigent shall be awarded upon the first Capias, for if he were taken by the Capias, he should pay unto the King a fine for a trespass adjudged against hlm. Prerogative. Of this nature are two special writs by the King's prerogative. Capias pro fine Regis, and capias utlagatum. Capias pro fine Regis, when the party is 1. H. 7. 20. adjudged to pay a fine unto the King. Capias utlagatum, to take one outlawed, Old. N B. 168. which is a kind of judgement and determination of the original writ as appeared before. These are the judicial writs within the year and day. A scire facias which lieth after the year and the day, is to warn the defendant upon Old N. B. 163. 27. Eli Coo. 12. in Sir William. Harb. ●. recovery in real actions, for in personal actions debt only lay after the year, which is a new original, till Westm 2. cap. 45. gave a scire facias, to show cause why the Plaintiff should not have execution. Therefore here the defendant may pled matters Lit. 116. growing after judgement rendered to oust the other of his execution, as outlawry, etc. or a release of all actions, for in as much as he may pled upon this scire facias, it may well be called an action, though it be but a writ of execution. But notwithstanding that a man which recovereth debt or damages, release to the defendant all actions, yet he may lawfully sue execution by a fieri 8. E. 4. 15. 1. El. Dy. 16●. 19 H. 8. 6. 22. H. 6. 41. 2. H. 7. 3. 24. H 8. Br. peremptory 63. facias, Capias ad satisfaciendum, etc. for these cannot be called actions. Here upon a Nihil returned, execution shall be presently against the parties to the judgement. But not (b) 1. Eliz. ibid. against Executors, or Administrators, nor in a scire facias upon a (c) 1. El. ibid. Recognisance (a) 1. Eliz ibid. or (d) 1 Eli ibid. 2. El. Dy. 172 8. E. 4▪ ibid. Charter of pardon, upon an outlawry, or such like, or to (e) 26. H. 8. ● Dy. 198. repeal a patent, for in all these cases two Nihils must be first returned. And therefore a scire facias sicut alias shall go forth. And the (f) The Stat. West. 2 cap. 46. doth so recite it. Solemnities of summons, attachment, essoyne, view of land, etc. lie not in this writ. Statutes. Westm 2 cap. 46. For all things recorded before the King's justices, or contained in fines (whether contracts, covenants, Obligations, services or customs acknowledged, or any other things enroled) a Writ of Execution shall be within the year, so as the parties shall not need to pled: After the year a Scire facias. The like is of mesne who by Recognisance or judgement is bound to acquit. In case of life the judge may command execution to be done without any writ. A woman (a) 22 ass. Pl. 71. quick with child, (b) 22. ass. Pl. ibid. the trial whereof is by a jury of women: and the writ for it is called a writ De ventre inspiciendo, shall for (c) 23 ass. Pl. 2. once and no more, be respited (a) 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 judgements. THe new Originals in the nature of judicial writs to undo some matters concerning judgements, whether it be the judgement itself, or the verdict whereupon judgement is given, that so the judgement also may be undone, or to avoid the execution growing upon the judgement, are either writs grounded upon error, or an Attaint, and Audita quaerela. Writs grounded upon Error, are a writ of Error and false judgement; both which lie upon any Error in the proceeding, as well in Redditione executionis, (as upon a Capias ad satisfaciendum, awarded for damages 16. H, 7. 6. recovered in a real action) as in Redditione judicij. But Error in Process, may the same Term be reform in the same Court, Whether it be in the King's Bench (a) 7. H. 6. 28. or Common place, (b) F. N. B. 21. ●. 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 judgement, may have a Supersedeas to stay execution till the error be discussed, Whether it be matter apparent, or matter en fait, that is alleged for Error. But no such Supersedeas shall be upon an Artaint; for that which is found by the oath of twelve men 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 King's Bench, or Parliament. In the King's Bench when the error is in any inferior court, whether the judgement be given in the Common Place, (a) F. N. B. 21. i Chancery, (b) 13. El Pl. 393 City, (c) 14. H. 7. 1. 8. Eli. Dy. 250. 21. El. So holden in the Common place, contrary to Fitz. N. B. 21. i or Gorporat town, as before the Mayor of Excester, or other Court of Record; for no Wait of Error is returnable in the Common place. Statutes. 9 Ric. 2, Cap. 3. If tenant for life, or in tail, after possibility of the issue extinct be impleaded, and judgement pass against him, he that is in the reversion at the time of the judgement, shall have a Writ of Error upon an error in the record of the same judgement, as well in the life of such a tenant, as after his death. And if at any time of reversing of the judgement, the Tenant for life, etc. be alive, he shall not be restored, etc. his possession, with the mesn, issues, and he in the reversion to the arrearages of the same rent, if any be due. But if the tenant for life, etc. be dead at the time of the reversing of the judgement, than he in the reversion shall be restored to possession, with the issues after the death of their Tenant for life, etc. 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 adiournement in a writ of Error in the Exchequer, it shall be no discontinuance. 32. H. 8. Cap 30. made perpetual. 2. E. ●. Cap. 22. After a verdict tried by twelve men, or more, in any suit in Court of Record, no judgement shall be stayed or reverfed for any mispleading, lack of colour, insufficient pleading, miscontinuance, discontinuance, miscontaining of Process, misjoining of the issue, lack of Warrant of Attorney: for the party against whom the issue is tried, or any other default or negligence of the parties, their councillors, or Attorneys. 18. Eliz. Ca 4. After a verdict of twelve men, or more, in any suit in Court of Record, judgement shall not be stayed or reversed for default in form, or lack of form, as false Latin, 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 Attorney, or for any manner of default in process upon, or after the prayer or voucher. 27, Eliz. Cap 5. After demurrer joined or entered in any suit in Court of Record, the judges shall proceed and give judgement 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 & ꝑticularly shall set down and express together with his demurrer. And that no judgement 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 suits of felony or murder, nor to enditement or presentment of them, or of treason, or other matter, nor to process upon any of them, nor to any suit upon a popular or penal statute. In the Parliament, when the error is 1. H. 7. 19 23. El. Dy. 375. in the King's Bench: And is returnable before the king and the lords only. The order whereof is this, viz. The party that sueth it must have a bill from the king endorsed; and thereupon the Chancellor must make him a writ of Error, and then the chief justice of the King's Bench shall bring with him (in the Parliament) unto the Lords in the inner Parliament Chamber, the writ of Error, and the bill endorsed, 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, etc. 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 Cominalty 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 King's Bench in an action of debt, detinue, covenant, account, action upon the case, Ejection firm, or trespass first commenced there (where the King is no party) may at the party's 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 lest, other then for error concerning the jurisdiction of the king's Bench, or want of form in a writ, return, plaint, bill, declaration, pleading, process, verdict, or proceeding whatsoever. And upon the judgement affirmed or reversed, the Record shall be sent back into the King's 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 judgement in the kings Bench. 31. Eliz. cap. 1. 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. False judgement is upon error in a F. N. B. 17. & 18. base Court. Thus much of writs of Error and false judgement, there followeth an Attaint, and Audita querela. Attaint is to inquire whether a jury of 12. men gave a false verdict. That so the judgement following upon it may be reversed, 18. E. 4. 9 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, his action, etc. for an attaint lieth not till judgement be given, 9 ass. Pl. 21. and if the Writ bear date before it shall abate. And this lieth only upon a Br. attaint. 42. verdict by xii. for if he loose in a Writ of right no atraint lieth neither by the Common Law nor Statute, because it passeth by a jury of more than xii. that is to say, the grand assize. Not more doth it in an inquest of office, & upon a writ to inquire of damages 3●. H. 6. 1. 3. H. 6. 29. in trespass, for that may be by a less number than xii. 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 (a) 25. H. 8. Dy. 5 26. ass. Pl. 12. party himself, or (b) 13. E. 4. 5. all the petty jury be dead, or (c) 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. cap. 37. speaketh of attaints Br. attaint. 42. without expressing any penalty. And 34. 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 K. shall loose his fine. Neither did it lie 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 jury here called the Grand jury, Old N. B. 111. are 24. who are to be warned the first day. And the process is against the party summons, Old. N B. 112. resommons, as in a mortdancester, darrein presentment, and juris utrum, against the petty jury, venire facias and distress. The petty jury must be all present 22. H. 6. 8. when the grand jury 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, And may pled in bar of the 35. H. 6. 30. attaint, as a release, arbitrement, etc. for this excuseth them of their false oath, but not in abatement of the writ, as another attaint 19 ass. Pl. 15: hanging, that the demandant had jointly with another not named in the writ: or if a woman bring it to say she is covert, etc. The Plaintiff in the attaint can give no more evidence than was given at the 34. H. 8. Dy. 53. first. But the defendant in affirmance of the first verdict may. Statutes. Westm 1. cap 37. An attaint is given in pleas of land or of freehold, or of things that touch freehold. 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 Tenant that lost be either dead, or were of covin with him that recovered, than restitution shall be to him in the reversion of the possession itself, 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. 23. H. 8. cap. 3. made perpetual 13. Eliz. cap. 9 In a suit 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 fraud jury, shall be summons and resommons, and distress infinite. Open proclamation shall be made in the Court where the distress is awarded more than xv. 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 suit, or discontinued, or had judgement against the petty jury upon his suit of attaint. But the party himself shall pled 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 essoign 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 King's 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 Attorney. The non suit or release of one when there be divers Plaintiffs or demaundants in an attaint shall not prejudice the rest. Every one of the grand jury must have xx. marks a year land of freehold, out of ancient demesne. But if the value of the thing in suit be under the value of forty pounds, than v. marks a year, or a C. marks worth of goods sufficeth for default of such sufficient jurors, within the same County, 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 feigned plea in delay. Audita querela is for one being or to be in execution to relieve him upon good matter of discharge which he hath no means to pled. As if one having a release be taken 22. H. 8. 56. in execution in one Court, as in the Common place, by writ out of another (as out of the 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, than 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 pled 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 judgement they have put themselves into abitrement. The process where the Audita quertla is sued, before execution is a venire facias and 12. H 4 6. 15. Br. Audit. quaerela. 15. 22. H. 6. 56. 12. H. 4. ibid. 47. E. 3. 1. 17▪ E. 3. 3. 28. E. 3. ꝓ Old N. B. 66. distress, and upon default after appearance and plea pleaded, a distringas ad audiendum judicium, for thereby judgement 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 (a) 11. R. 2. superseded. 14. can he not being in execution. Neither (b) 2▪ H. 7. 12. 21. H. 6. 34. can he have a Supersedeas before execution oftener than once, though (c) 43 E. 3 ●8. F. N. B. 104. q. cont. it be upon new matter. But if the (d) 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. After execution the process is a Scire facias, as if he be brought in by a Capias ad 22 H. 6. 56. 15. E. 4. 5. satisfaciendum, for there 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 loose issues, to keep the others body in perpetual prison. CHAP. 48. Of certain special writs wherein no Process lieth. THus fare of an Action, and the several parts of it. And of writs both Original and judicial, 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 Commandatorie or prohibitory to do or leave something undone. And therefore no Process at all lieth in these writs, but only an (a) F. N. B. 6. b. 185 d. 134. a. Old N B. 15. 35. Attachment upon a contempt, for not executing or obeying them. Of which nature are, 1. Commandatorie ones, these that follow. F. N. B. 26 3. c. Dote assignanda, is for the wife of the King's Tenant, when the King is entitled by office of land, whereof she is dowable, always directed to the escheator. And may be either to deliver her such part of F. N B. 263. d. her land as is already assigned to her in the Chancery for her dower, or for the escheator himself to assign her part unto her. If her husband held in chief, than she F. N Br. 263. c. must first take an oath in the Chancery, not to marry without the King's licence, before she can have this writ. But if he held of the King by Knight service, as of a manor, or if he held from one that is in ward F. N. B. 264. a. to the King by reason of his nonage, there she shall not need to take any such oath. Homagio capiendo for tenant by homage ancestral to compel the Lord to receive 45. E. 3. 23. his homage, and is to save his warranty and acquitaile, 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 Knight's 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. And to make his son a Knight, or to F. N. B. 82. a. c. 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 (a) F. N. B. 230. a first to have a corodie for his servant, the (b) F. N. B. 231. g. other to have a pension granted to his Chaplein, (c) F. N. B. 230 a till he be promoted to a benefice. Both (d) F. N. B. 230. a & 231. g. these where the same are due. As (e) F. N B. 230. a. of common right a Corodie is due from every Abbey, Priory, or other house of Religion, whereof the King is founder in the right of his Crown. A (f) Fit ibid. F. N. B. 229. b. pension from every Bishopric in England or Wales. De libertatibus allocandis, for one whether a singular person, Burgis, Citizen, or other, or a body corporate, empleaded before the King's justices of the one Bench or other, justice's errants, justices of the forest, etc. 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. De executione judicij, to have a judgement executed, whether the same were given Old N. B. 15. 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 judgement were given before the Bailiff 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 temporaltie● before seized into the King's F. N. B. 169. hands, are to be restored to a Prior or Bishop elect and consecrated. And this must be directed to the escheator. De securitate pacis, for him that is in fear of corporal hurt, to be killed, beaten, assaulted, F. N. B. 79. etc. 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 jointly 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 ancient 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 then 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 compel the party to found sufficient mainperors in a reasonable sum of money, that he shall neither do nor procure any bodily hurt, or burning of the parties houses; or upon refusal, to commit him to the gaol till he do. De vi Laica removenda, to remove alllay force in any Church, especially where debate Old N. B. 33. is between two persons of a Church of prebends about the title, and one with force and arms holdeth the other out: and (a) F. N. B. 54. this writ may be as well upon the bore 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 than he may have a writ to restore him again, but only remove the force: and this writ is returnable or not returnable at the party's pleasure that doth sue the same, and may be returnable in the Common place, as well as in the Kings Bench. Of cleansing streets to have the ways, streets or lands of a Town Corporate, F. N. B. 185. d. of the Suburbs of it, to be made clean, and so kept, when they be staunched, by dung and filth, hogsties, and such like, whereby the air is corrupted and infected, to the endangering of the health, or other great discommodity to the Inhabitants or Travellers that way. But it seemeth that no such writ lieth for the Village in that Country, though they be not kept clean, but for corporate Towns only. De Leproso amovendo, to remove a Leper F. N. B. 234. 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, than it seemeth he shall not be removed thence, nor that any Lepers or Lazars 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, upon a significavit, Old N. B. 34 & 35 so we call the ordinaries 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 justify him by his body, till he satisfy holy Church for his contumacy and contempt, and this writ also is a justicies. De excommunicato deliberando to deliver Old N. B. 35. a. F. N. B. 63. ●. f. him out of prison when the Church is satisfied, and hath absolved him. De cautione admittenda, when one taken by an Excommunicata capiendo offereth sufficient F. N▪ B. 63. c. pledge or caution to obey holy Church, which is refuled to have that caution admitted and to be delivered: and may be either to the (a) F. N. B. ibid. ordinary himself to command him to be delivered, which the ordinary may do by word, or to (b) F. N. B. 63 d. the Sheriff to make such deliverance, and then it is withal, a de excommunicato deliberando. De heretico conburendo, to 'cause one convicted for an Heretic to be burnt. And F. N. B. 269. 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 Diocese may convict a man of heresy, 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 ca 14. So as now the ordinary cannot commit him to the lay people to be burnt without the Kings writ first purchased. De coronatore exonerando, to discharge a Coroner of his office upon just cause. As if F N. B. 163. n. he cannot extend his office for other businesses of the Kings that he is employed 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 devil according to his state, or have the Palsy, or devil 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 F. N. B. ibid. himself. De exonerando viridario forest●, to discharge a verder of the forest in like sort. De coronatore eligendo, to choose a Coroner, two or three if there be need of so many, F. N. B. 163 k. in full County, by the freeholders of the County. And this is commonly upon the death or discharge of some of the Coroners, when it is upon the discharge, than this writ renteth the cause of their discharge. De electione viridariorum forestae, to choose F. N. B. 164. ●. a verdor of the forest in like sort. Congee deslier, to Deane and Chapter, or such like to choose their Bishop. Statutes. 25. H. 8. cap. 20. For the election, nomination, presentation, investing, and consecrating of Archbishops and Bishops. A writ for the royal assent to signify to the ordinary his assent to the election of an Abbot, etc. & to will him to execute that which belongeth to him, therefore this is always to the ordinary himself. Desecuritate invenienda qd se non divertat ad partes extera sine licentia Regis, to compel one to found sufficient mainpernours in a reasonable sum of money, not to go into foreign parts out of the Realm, without the King's licence, nor any thing there attempt in contempt or prejudice of the king, or hurt of the people, nor sand 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 every one that will may go out of the Realm for merchandise, travail, or other cause at his pleasure without the King's 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. Ric. 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 King's soldiers. Statutes repealed. 4 jac. cap. 1. All dedimus potestatems. The principal of them are these. Dedimus potestatem, to give the King's royal assent to the election of an Abbot, or F. N B. 170. ●b. such like, made or to be made, and to signify so much by his letters to the ordinary, that he may do that which belongeth to him, and to receive fealty, etc. commanding the party to do the premises. And therefore is directed to the party himself that must do these things. Dedimus potestatem de fine levando, to certain F. N. B. 146. g. Old N. B. 103. persons to take the acknowledgement of a fine out of Court, when one that hath agreed in the King's Court to levy a fine, is so feeble that he cannot travail, for every such dedimus potestatem supposeth a writ of covenant, or such like, hanging. F. N. B. ibid. 1. H 7. 9 Old N. Br. ibid. And they to whom this Writ is directed, must go in proper person to the parties to take the conisance, which being certified to the King's justices of the Common place, the fine shall be engrossed. The chief justice of the Common place may take the acknowledgement of a fine without any dedimus 1. H. 7. 9 potestatem, so can no other judge, de rigore juris. But a justice of assize by a general patent with a clause of non obstante may Statutes. Stat. Carlife. 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 saciendo, for the judges to admit an Attorney for F. N. B. 25. ●. one in a suit, whether it be for the plaintiff or desendant, demandant or tenant, and in what action or suit soever the same be. This writ must be directed to the judges themselves, and groweth by the King's prerogative, for at the Common Law the parties must appear in proper person, not by Attorney, although the Statutes gave power afterwards to make Attorneys in divers cases; as appeareth before. But before those Statutes it seemeth that the King might grant to any man to make an Attorney in any suit. And one reason thereof was, because it is no error though the judge admit any plaintiff or defendant to make an Attorney, where by the Law he aught not. Prohibitory ones are these that follow. A protection cum clausula nolumus, to free ones possessions, land, rent, corn, cattles, Old. N B. 29. a. & b. carriage, etc. that nothing be taken against his will for the King's business, by his officers or ministers. This may be as well for a secular as a spiritual person, and groweth by the King's special favour. Persons or other spiritual persons not to be charged to the payment of fifteen, F. N. B. 176. a. 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 termed that is within holy orders, not to be chosen an officer, as Bailife, Beadle, Reeve, etc. for his lands, and this writ reciteth that by the common Law they aught not, and commandeth that if any distress or amerciament be levied, in this respect, it be restored. A prohibition to forbidden tenant in dower, or by courtesy of England, or garden by F. N. B. 55. e. 14 H. 8. 6. Shelly. Knight service, or in soccage, to commit waist to the destruction of the inheritance. the form of the writ. F. N. B. 8. c. 14. H. 8. ibid. But this writ lieth 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 waist out of the Chancery against tenant by courtesy or dower, or otherwise for term of life or years, and being attaint of waist, he shall forfeit the waste and triple damages. Westm 2. cap. 14 The process in a writ of waist shall be summons, attachment, distress: and if he come not, than a writ unto the sheriff, taking with him xii. men to go to the place wasted, and there inquire of the waste, and upon that waste returned, judgement 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. Madge chart. ca 4. The garden may not commit waist upon pain to loose the wardship. Cap. 5. And must repair and sustain the houses, of the profit of the land. Glocest cap. 5. If the garden commit waist, and the wardship lost answer not the value of the damages before the heir's age, them he shall tender the damages to the heir. Artic. super chart. cap. 18. escheator committing waste upon wards lands, 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 escheator have a ward to answer to the King of the issues, and commit waste, the heir shall have an action of waist as well within age as of full age, and whilst he is within age, if he cannot, his next friends shall have the suit for him. 14. E. 3. cap. 12. The heir when he cometh to full age shall have an action of waist against the gardens and fermours to whom the King shall let the land in ward according to that Statute. Westm 2. cap. 22. A writ of waist given for one jointenant 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 agreed from thenceforth to take nothing more than his Companions do. Glocest cap 13. Hanging a plea by writ the Tenant may not commit waist, 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 waist nor estrepment be done. A quo minus for grantee of estovers, as houseboote or heyboote, etc. to restrain Old N. B. 159. the grantors from committing waist, so as he cannot have his estovers. De exoneratione sectae, for Tenants by suit of Court, or other rent or services that F. N. B. 158. they be not distreined to do the same for such time as they aught to hold the land discharged. As one which is in ward to the King, a woman endowed in the Chancery of lands so in ward, and the Tenants paravaile of such a ward, that is to say, where the other Lords of whom the heir holdeth do distrain, for during such time as the heir is in ward, either to the King or to his Committee, he is to do no suit of Court or other services, and if any distress be taken, it is by this writ to be restored. De deonerando pro rata, to discharge the F. N. Br. 2●5. k. 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 C. acres of land by the service of repairing a bridge, alien in fee xx. acres to one man, and xx. to another, and after upon this presented one of the alienees, is only distreined to make reparation, or where the King's Tenant by fealty and rent alieneth parcel of the land, and the king's 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 distrain for all the rent in the part of the alienee, but such a writ lieth not where one that holdeth of a common person by fealty and rent, alieneth part of his land, for there the Statute itself restraineth the Lord that he cannot distrain the alience, but after the rate and value of the land which he hath purchased De effend. quiet. de Theolonio to officers of Towns or other places not to grieve spiritual F. N. B. 226. i persons, or other that aught to be quit of paying of toll, murage, pannage, pontage, etc. whether by the kings grant or by prescription. De non ponendo in juratis, to discharge F. N. B. 165. a. d. Peers of the Realm, or other persons privileged: as Clarks that are in the king's service, etc. from being of jury, unless their presence be for any special cause necessary. And this may be directed either to F. N. B. 165. ●. the Sheriff not to put them into juries, or to the judges to discharge them. But if a Pier of the Realm be returned, he must be sworn or loose issues, if he appear not, unless he bring the writ. Ne eveas regnum, to the party himself to inhibit him to go into foreign parts without F. N. B. 85. ●. the King's licence. FINIS. 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 Account. 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 dyeth with the party. 17 Acquittal, of the donees in frankmarriage by the donor, 141. of the donee in frankalmoigne by the donor. 139 Ad terminum qui praeterijt. 263 Age, of discretion, 28. that shall bind a man or woman in matter of marriage, ibid. that maketh a woman capable of dower, ibid. 126. of a woman to continued ward. 146 Alien, trial between him and a denizen 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, ibid. his goods shall be to their use that seize them. 178 Aide 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 amerced. 229 Amendment done by the justices of the Clarks error. 228 Apportionment, a duty growing upon a contract cannot be apportioned. 180 Appeal. 310 Approver. 387 Assault, what. 202 Assize. 284 Atturnment of Tenant by homage ancestrel 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. 1●1 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, ibid. in what case he may gain a right of inheritance. 118 Battery, what, 203. when not punishable. ibid. Boroughes 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 occording to that which was the cause thereof. 10 Causa matrimonij praelocuti. 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 Commonwealth, things which concern it favoured. 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 Conspiracio, 305. how made and how punished, ibid. Consuetudinibus & seruitijs. 272 Contempts what. 205 Coparceners, who. 118. the eldest shall have the chief house, 132. she only shall do homage, 142. unless the land be held of the king, 144. they may compel partition. 36 Corodie 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. 9●. Churchwardens ● Corporation. 178 Count what. 357 County what. 79 Countermand, where good and where not. 31 Cui in vita. 265 Curia claudenda. 276 Courtesy of England, in what case the husband shall take benefit thereby, 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, ibid. if the end of the term or day of return be on that day, the day following is taken in steed of it, 236. things done in the day favoured more than those done in the night. 38 Debt and 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. voided in the beginning cannot have a good perfection, 12. not available if read falsely to an unlearned man. 109 Deodand what. 214 Departure what. 50, 51 Discontinuance, what 190. how made. ib. Disseisin what. 195 Distress, 135. what may be distreined, and what not, ibid. the King may distrain where a common person may not, 136. where distress may not be taken, ibid. it may not be driven forth of that Hundred where it was taken, 137. A Millstone 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 fuit compos mentis. 264 E Electione 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 Executours, they must prove the William. 171. may not refuse after administering, ibid. what duties they must first discharge 172. of 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 Fee simple of two sorts 121, is by giving lands to Mayor and and Commonalty without naming successors 125. Fine for lands aliened without Licence 143. by the defendant in an action of Trespass 189. Franchise what? 164. of diverse kinds 166. Frankalmoigne what? 138, 139. the Lord must warrant such a tenant 139. Frankmariage what? 123. Land cannot be given in Frankemariage 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 termor by plucking the inheritance out of him that hath it, 113. by alienation without licence, 142, 143. of a franchise by misusing it, 164. G GAuelkind, 78. the 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. Heresy what, 219. the punishment thereof ibid. Homage, what, and how performed, 142. to the King shall be taken by his Chamberlain, ibid. ancestrel, 144. incident to Knight's service, 149. Hodgepodge, what, 124. in what cases it shall be, ibid. I Idiot, the king shall have to his own use all his possession during his ideocie, 95. his grant is voided, 102, 103. Incidents cannot be severed, 15. homage incident to knight's service, 149. Infant, his will nothing worth though he dieth at full age, 12. his grant void, 102: unless for things necessary, 103. joint-tenant who, 97. the survivor shall have the whole, ibid. cannot sue one another, 37. Issue what? 396. juris Vtrum, 292. jurors returned to appear at the Sheriffs turn, 243. trials by jurours 399, 400, 401. justicies, 314. K King, he is the Head of the Commonwealth, 81. he cannot be nonsuit, 82. always present in Court, 81. when bond by act of Parliament, 84. 234 all land is holden of him, 132. being tenant in Common of an entire Chattel real, shall have the whole, 178. how his grant shall be taken, 101. cannot dispense with an Act of Parliament before it be made, 235. Knight's service, homage is incident thereunto, 149. L LAnd what, 130. what is comprehended under that name, 131. Laps what, 90. Law defined, 1. Native or positive, 2. it favoureth right, 45. Leases, what Leases made by a Corporation are voided. 192 Lunatics, the King shall have their possessions, 96. M MAintenance, a son may maintain his father, 25. Maim what, & when 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, ib. Misprision what, 209. Murder what, 215. when one may justify 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. Nuisance what, 187. is to be removed, 188. the King's Licence doth not make it lawful, 234. Nuper obijt, 293. O OAth taken by officers, 230 Office what, 162. a grant thereof to an unskilful man is voided. ibid. offices for the King. 323 Officers what. 229 Ordinary, every Parson must be presented to him. 89. ●ay collate after six months avoidance 90. by consent of patrons may unite two Churches, ibid. 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 personal 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 granted by his predecessor. 23 Peers, where one is a a party to the action, a Knight must be of the jury, 412. shall be tried by his Peers, ib. exempted from doing suit at Courts. 241 Petty treason, what. 218 how punished, ibid. of diverse sorts. 230 Plaints what, & where holden. 320 Pleading, what. 359. the manner thereof. 360 of several sorts. 362. 363. Pleas in bar. 378 Pypowders, that court incident to Fairs and Markets. 246. trials there shall be by the Merchants. 412 Possession what. 104. it prevaileth where the right is equal. 30 Possibility, may preserve an Act from being voided. 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 Sabath day. 7. cannot be had in wild beasts and fowls of the air. 176. when the Lord hath property in an estray. 177. of goods may be in an alien. 178. when altered by sale of another man's 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 QVare impedit. 274 Queen, she may have an action in her own name. 86. making leases, etc. 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. voided without privity. 115 Remainder, what. 113 Remitter, what, 194. when issue in tail shall be remitted. 18 Rent, charge what. 15● seek 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 Robbery, what. 217 S SEisin, the use thereof. 132. from what time it shall be alleged. 258 Services, are common to all certain Estates and proper inheritances 138. Divine Service, what. 139. Knight's service, what. 149 Sheriff, suffering a recovery it is error. 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 several returns. 236 Tenement, what. 130. of two sorts. ibid. Testament, what. 167. all chattels may be devised. ibid. what lands may be devised. 169. 170 Title what. 106. pretenced titles when they may be sold. 250 Town, chargeable with the goods of offenders. 207 Treason what, 220. 221 V VAriance, between the writ and obligation. 49 View. 366 Villeine, what 159. his original, 160. 232. the lord must claim his goods. 159. where the lord may not seize him, 160. his children are villeins, 160. what shall be an enfranchisement, ibid. shall make free land to be villeine land. 23. being an executor may have an action against his Lord. 27 Uncertainty maketh the grant voided. 49 Voided things good to some purpose. 62 Use, feoffement to the use of a villeine the Lord may enter. 159 Usurpation, what. 196 how done. ibid. W WAger of bat tell shall not be by Cousins in a writ of right. 25 Ward shall be his that can first hap him. 30 Warranty, what word maketh it. 115. knit by Law to every exchange. 116▪ occasioned by homage ancestral. 144. which is destroyed by Atturnment. ib. where it maketh a discontinuance. 193 the writ of Warrantia chartae. 278 Wast, the wife shall not be charged for waste done by the husband. 26. judgement shall not be given in waste, where the waste is but 12. pence. 29 Way granted over another's ground shall be to the grantee only, 17. & he cannot assign it over, 31. given by law to a thing excepted, 63 Women may relieve their husbands though it be felony in another, 25. are free from suit of Court, 241. when said to be waived, 242. shall 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, Ib. FINIS.