THE LIBRARY 
 
 OF 
 
 THE UNIVERSITY 
 OF CALIFORNIA 
 
 LOS ANGELES 
 
 IN MEMORY OF 
 
 THOMAS S. DABAGH 
 1903-1959 
 
 FIRST DIRECTOR OF THE 
 LAW LIBRARY
 
 Classic Series 
 
 BRITTON
 
 legal Classic Series. 
 
 GLANVILLE 
 
 Introduction by Joseph Henry Beale. Jr., A.M.. LL.D. 
 
 BRITTON 
 
 Introduction by Hon. Simeon L. Baldwin, LL.D. 
 
 LITTLETON'S TENURES 
 
 Introduction by Eugene Wambaufjh, LL.D. 
 
 MIRROUR OF JUSTICES 
 
 Introduction by Hon. William C. Robinson. 
 
 also 
 FLETA, and others.
 
 J3RITTON 
 
 AN ENGLISH TRANSLATION 
 AND NOTES 
 
 BY 
 
 FRANCIS MORGAN NICHOLS, M.A. /f 
 
 OF LINCOLN'S INN, BARRISTER AT LAW 
 FORMERLY FELLOW OF WADHAM COLLEGE 
 
 WITH AN INTRODUCTION 
 
 BY 
 
 HON. SIMEON E. BALDWIN, LL.D. 
 
 PROFESSOR OF LAW IN YALE UNIVERSITY 
 
 WASHINGTON, D. C. 
 
 JOHN BYRNE & CO. 
 
 LAW PUBLISHERS AND BOOKSELLERS 
 1901
 
 V 
 
 COPYRIGHTED, 1901 
 
 BY 
 JOHN BYRNE & COMPANY.
 
 Of* 
 
 INTRODUCTION. 
 
 BY SIMEON E. BALDWIN, M.A., LL.D., PROFESSOR OF LAW IN 
 YALE UNIVERSITY. 
 
 THE founders of nations or of national institutions 
 have a place by themselves. They are judged, not like 
 other men, by their own talents or character, or im- 
 mediate achievements, but rather by the ultimate 
 consequences of the movements in which they shared. 
 
 Edward I is one of the few English sovereigns who 
 has played a founder's part. Parliamentary history 
 really dates from his convocation of the assemblage of 
 the different estates of the realm at "Westminster in 
 1275. The courts of England also, if we are to meas- 
 ure them by their relation, on the one hand, to the 
 people, and, on the other, to the law, had first come 
 into existence under the legislation of his reign, be- 
 ginning, at its outset, with the Statute of "Westminster, 
 the First. 
 
 A few years before his accession English law had 
 been put in form by Bracton. That great work, how- 
 ever, was written in Latin, and addressed to the scholar. 
 It was too long to be a ready source of information to 
 
 anybody. Bulk and want of indexes made such trea- 
 
 vii
 
 Vlll 
 
 tises, before the invention of the art of printing, of lit- 
 tle use in the practical administration of judicial busi- 
 ness. An abridgment of Bracton, also in Latin, was 
 prepared by the Chief Justice of the King's Bench, 
 under Edward I, Gilbert de Thornton ; but, like most 
 abridgments, it was read by few. The treatise styled 
 " Fleta " was published at about the same time ; but this, 
 again, was in Latin, and, so far as it has any preten- 
 sions to originality, contains little of value except its 
 account of the constitution of the royal household. 
 
 Edward I had brought his courts, and wished to 
 bring his law, into close touch with the English people. 
 This could only be done by making the way in which 
 it affected them known in a language commonly under- 
 stood by those who were the natural leaders in tlw 
 community. Such was then the form of French used 
 in court circles. It is more intelligible to a French- 
 man of our day than the English of the time of Edward 
 I is to the Englishman of the time of Edward VII. 
 
 The treatise, of which a translation is given in this 
 volume, was written in this " Law French," as it is 
 often called, but what may be better styled the French 
 of the thirteenth century. Law books have preserved 
 it for us, but they took it from the common speech of 
 the date. No English king wrote in English before 
 Henry V. If the contents of a Latin document w r ere 
 to be communicated to the courtiers at the royal pal- 
 ace, in the time of Edward I, it was done in French.* 
 
 Who " Britton " was is uncertain. The authorship 
 
 * Nichols Ed. of Britton. I, xlvi, note.
 
 IX 
 
 of the book was attributed by Sir Edward Coke to 
 John Britton (or de Breton), bishop of Hereford. The 
 bishop, however, died in 1275, and if he wrote it, great 
 additions must have been made by a later hand, for 
 statutes are mentioned which were enacted long after 
 that date. It is more probable that the author was 
 one of the justices of the inquisitorial tribunal insti- 
 tuted by Edward I, towards the close of his reign, and 
 popularly called " Trailbaston." In a commission is- 
 sued in 1300 to those who were to hold it in the coun- 
 ties of Norfolk and Suffolk we find the name of John 
 le Breton,* and that of 1304, for the county of York, 
 includes " Johannes de Barton de Eiton." f It is sug- 
 gested by Nichols, in his edition of Britton, that this 
 John le Breton was the same person who is variously 
 described in other annals of this reign as " Sir John le 
 Breton," " Sir John de Breton," and " Johannes le 
 Breton, dominus de Sporle." ^ We find also that in 
 1305 " Sir John de Bretaign" is assigned by the king 
 to serve on a parliamentary commission to receive and 
 answer petitions that concerned the people of Gas- 
 cony. The title of Edward I was " King of Eng- 
 land, Lord of Ireland, and Duke of Aquitaine." Aqui- 
 
 * Ibid., xx i. 
 
 f Spellman's Glossary, Trailbaston. Diet, of Nat. Biography, 
 Barton, John de. Possibly B. RITON may be the fanciful name 
 assumed by the unknown author. 
 
 $ Nichols' Britton, I, xxi. 
 
 Parliamentary History of England, I, * 127.
 
 taine was the Roman name for Gascony and, twa 
 years before, the English had regained possession of it 
 by a treaty with France. In selecting the members 
 of such a commission regard would naturally be paid 
 to their familiarity with the French language as it was 
 written, and Sir John de Bretaign was therefore pre- 
 sumably well acquainted with it, and so qualified, as 
 far as scholarship was concerned, to compose such ti 
 treatise as Britton. Spelling in those days, when men 
 knew their mother tongue mainly from oral conversa- 
 tion, often varied, and " Bretaign," which was cer- 
 tainly the same name as " Bretaigne" or " Britain," * 
 may not improbably have been identical with " Briton," 
 " Britton," " Breton," " Bretoun " or " Barton." The 
 Britanni of the Romans passed both into Britones in 
 monkish Latin and Bretons in French. 
 
 The Baron of Sporle f can hardly have been the 
 author of Britton, for he inherited his lands and title 
 in the reign of Henry III, and the book, if his, would 
 
 * Two years later (1307) we find " John de Britain, Earl of 
 Richmond," as one of those summoned to the Parliament of Car- 
 lisle. Parl. Hist, of Engl., I, * 133. The first Earl, Alain Le 
 Roux, came with William the Conqueror, and being from Brit- 
 tany, was known as Count Alain the Red, of Brittany. His de- 
 scendants made " de Bretagne," and later " de Britain," a part 
 of their names. Planche, The Conqueror and his Companions, 
 I, 8265. 
 
 f He is one of the barons who signed the famous protest to the 
 Pope in 1301, and died a few months before Edward I, his name 
 not occurring in the writ summoning the last parliament of that 
 reign. 1 Parl. Hist., * 123, *133.
 
 XI 
 
 have been likely to go by the name of his barony 
 rather than by that of his family. Probably it was 
 the work of his son, Sir John le Breton, of Blath- 
 erwyk, in Northamptonshire, who died at a mature 
 age in 1306 or 1307 (34, Edward I),* and who may 
 also have been known as " Sir John de Bretaign." 
 
 But from whatever pen Britton may have come, its 
 main authority is due to the stamp which it bears of 
 royal approval. Like the Institutes of Justinian and 
 many of the later barbarian codes, it speaks in the 
 name of the sovereign. The Roman Emperor gives 
 the names of those to whom he entrusted the work of 
 revising his laws. The barbarian codes often refer in 
 general terms to the aid given by the bishops and 
 judges.f Edward I, in his prologue to Britton, simply 
 speaks of it as a compilation of the existing laws 
 which he has had put in writing for the information 
 of his subjects, and which he reserves the right to 
 repeal or alter by the assent of his council. 
 
 Britton was, no doubt, prepared with the special 
 view of familiarizing the people with the idea that the 
 administration of justice belonged only to the crown 
 and to those to whom the crown had committed it. 
 It was the policy of Edward I to curtail or sweep 
 away, so far as possible, the jurisdiction of the local 
 
 * Burke's Commoners, IV, 230; Nichols' Britton, I, xxii. 
 
 f See, for instance, the captions to the Laws of Liutfrand, 
 King of the Lombards, and to those of Peppinus, King of 
 Italy, in the Corpus Juris Germanici, 1027, 1282.
 
 Xll 
 
 courts of a manorial or feudal character.* He had 
 been at pains first to reform his own. Shortly before 
 the publication of Britton, of the sixteen judges of 
 England, fourteen had been convicted of extortion and 
 corruption in office. f The bench was then reconsti- 
 tuted, and a favorable opportunity thus given to make 
 the king's courts more acceptable to the community at 
 large. The two judges who were allowed to remain 
 seem to have fully reflected his views as to the royal 
 prerogative. One of them, John de Metingham, when 
 in 1296 Edward undertook to frighten the clergy into 
 submission by a decree of general confiscation, we find 
 announcing from his seat in the King's Bench that 
 "for the future no manner of justice sball be done 
 them in any of the King's courts on any cause what- 
 soever, but justice shall be had against them to every 
 one that will complain and request it of us. " ^ 
 
 The statutes of Gloucester and Westminster the 
 Second, which were the expression of Edward's policy 
 of concentrating all judicial business of importance in 
 the hands of his own judges, had been passed early in 
 his reign, but the corruption of those to whom the 
 people had then been invited to entrust their concerns 
 must have militated strongly in favor of the old order 
 of things. The new judges, armed with Britton as a 
 
 * See Select Pleas in Manorial and other Seignorial Courts, 
 Vol. I, in Selden Soc. Publ. in the introduction to which this 
 subject is well and extensively discussed. 
 
 t In 1290. Parl. Hist., I, *89 ; Spellrnan, Glossary, Justitiarius. 
 
 t Pad. Hist., I,* 104.
 
 xni 
 
 guide of procedure, entered upon their field of service 
 under the most favorable circumstances. Most of 
 Edward's legal reforms, so far as Acts of Parlia- 
 ment could go, had been accomplished. " The laws," 
 says Sir Matthew Hale, " did never in any one Age re- 
 ceive so great and sudden an Advancement, nay, I 
 think I may safely say, all the Ages since his Time 
 have not done so much in Reference to the orderly 
 settling and establishing of the distributive Justice of 
 this Kingdom as he did within a short Compass of the 
 thirty-five Years of his Reign, especially about the 
 first thirteen Years thereof." * But Acts of Parlia- 
 ment could not execute themselves. It Avas through 
 his new-made bench that Edward expected to incor- 
 porate them into the life of the people. It was by 
 their aid also that he proposed to re-shape the common 
 law in the interest of a strong and centralized govern- 
 ment. So it was that, to quote again from Hale, 
 " gradually the Common Justice of the Kingdom came 
 to be administered by Men knowing in the Laws, and 
 conversant in the great courts of B.R. and C.B. and 
 before Justices Itinerant ; " and " partly by the Learn- 
 ing and Experience of his Judges, and partly by his 
 own wise Interposition, he silently and without ]S"oise 
 abrogated many ill and inconvenient Usages, both in 
 his Courts of Justice and in the Country." f 
 
 Britton, like Glanville, is primarily a book for 
 
 * History of the Common Law, * 158. 
 ] Ibid., 160, 162.
 
 XIV 
 
 judges and lawyers. It looks at rights through rem- 
 edies. 
 
 First (Book I, Chapters 1 to 4) comes a description 
 of the various officers of justice and the general method 
 of holding and conducting the King's courts. Then 
 public rights and wrongs are discussed (Chapters 5 to 
 26). Next follows a statement of the remedies forcer- 
 tain private wrongs (Chapters 27 to 29). One chapter 
 (30) is given to a description of the Sheriff's courts 
 or " Tourns," a matter passed over by Bracton. The 
 next provides for the universal use of standard weights 
 and measures, and for the regulation of prices of bread 
 and beer. Yillenage is the subject with which the first 
 book closes. 
 
 Book II is devoted to remedies for wrongs affecting 
 the possession of real estate, and mainly to disseisin. 
 
 Book III treats of inheritances and actions by heirs 
 and coparceners. 
 
 Book IV takes up actions concerning the Church 
 establishment and matters of religion, including ad- 
 vowsons and false oaths. 
 
 Book V first sets forth the procedure to obtain 
 dower, and then (Chapters 14 to 16) explains pleas or 
 writs of entry. 
 
 Thus far possessory rights to property have been 
 expounded. The last Book (VI) begins by taking up 
 property actions, and (Chapters 1 to 8) the rules of in- 
 testate succession. Then comes an explanation of 
 " Essoins " or excuses for non-attendance at court 
 (Chapters 5 to 9), and the work closes abruptly with a
 
 XV 
 
 statement (Chapter 10) of the nature and office of 
 attorneys. 
 
 Throughout the whole of the treatise there is a 
 steady endeavor to guard and magnify the royal pre- 
 rogatives. The laws as they are set forth are to be 
 obeyed because the king wills and commands it (Pro- 
 logue 1, 1). He may take jurisdiction over all manner 
 of actions (I, 2). Holy Church shall " retain her liber- 
 ties unimpaired " because the king so wills (I, 12). It' 
 a. royal charter is set up, whether it be allowable or 
 false or doubtful can be judged by none but the king, 
 " car a celiest respoundre et de juger qi en fu autour " 
 (I, 99). If a law is to be abrogated or altered, the 
 power to do this is saved to the king by the assent of 
 his earls and barons and others of his " conseyl," who 
 these others might be being left to the royal pleasure 
 from time to time. 
 
 " Council" was of course the name for what we now 
 call Parliament, and the Judges were often invited to 
 it, and took an active part in drafting the statutes 
 which they were afterwards to enforce.* 
 
 Trial by jury, in the time of Britton, was in a state 
 of transition. 
 
 The jurors were tellers of the facts in issue rather 
 than judges of these facts. They were to decide on 
 what they knew before they entered the court room, 
 more than on what they learned at the trial. If at its 
 
 * See Pollock & Maitland, History of English Law, 3d Ed., I, 
 198, 200.
 
 XVI 
 
 conclusion they reported a disagreement, and declared 
 upon their oaths that they knew nothing about the fact 
 in dispute (I, 126), a new jury was to be impanelled. 
 
 The system also lacked one of what we have come 
 to consider its essential features, the requirement of 
 unanimity. 
 
 In trials for felony, if the jury failed to agree, the 
 Judge could examine them one by one, and if he found 
 that the majority knew the truth (I, 12b), judgment 
 was to be rendered according to their opinion. A 
 failure to agree, however, was only to be reported as 
 a last resort. If they (that is, apparently, if a majority) 
 were not certain where the truth lay, the defendant 
 was to be discharged (I, 13). 
 
 In civil cases, after a disagreement had been re- 
 ported, and the Judge, on examination of each, had 
 found how the majority stood, the parties were asked 
 if they would consent to adding enough more to the 
 majority to make twelve. If both consented, a verdict 
 could thus be obtained. If either refused his assent, 
 judgment went against him (I, 136). 
 
 Felons, as now, were not to be brought to the bar 
 in irons, nor in any manner of bonds (1, 14), but appar- 
 ently this provision was not always observed, for in a 
 MSS. copy of Britton in the library of Cambridge Uni- 
 versity, made early in the fourteenth century, there is 
 substituted for it the words " hors de trap grosfers et 
 hors de trop gros liens* 
 
 * Nichols' Ed. of Britton, I, 35, note, lix. Occasionally felons
 
 XV11 
 
 A humane saving in favor of burglars is worth no- 
 tice. Infants under age, and poor persons who from 
 famine made an entry for any victuals of less value 
 than twelve pence, could not be convicted of this crime 
 (I, 17). As three half-pence a day was then considered 
 sufficient to support a man (I, 12), this exception in 
 favor of the poor meant a good deal. 
 
 Britton is not without value to the modern lawyer 
 for his definitions. 
 
 An obligation, for instance, it is said is a bond of 
 law through which any one is bound to give or do 
 any thing, and so is a mother of a plea, and takes its 
 birth from some preceding trespass or contract (I, 61). 
 Here is clearly brought out the notion which was the 
 subject of discussion in Ogden v. Saunders, 12 "Wheaton, 
 213, that a contractual obligation is the consequence 
 of a contract, and not a part of it. 
 
 An oath is "an affirmation or denial of anything 
 whereby a man is charged on peril of his soul to say 
 the truth " (II, 237). 
 
 The foundation of the still surviving doctrine as to 
 the peculiar force which a seal gives to a written docu- 
 ment is nowhere more plainly traceable than in the 
 pages of Britton. 
 
 If suit is brought on a writing, and the defendant 
 denies its execution, he cannot enter the plea of non 
 
 were arraigned in fetters as late as the time of Chief Justice Holt. 
 Campbell, Lives of the Chief Justices of England, III, 24.
 
 XVlll 
 
 estfactum if it bears his seal (I, 6-lb).* That makes it 
 his deed ; but he may plead in avoidance that it was 
 made after he had lost his seal and had had the loss 
 cried and published by the churches and by the markets. 
 A plea that the plaintiff was once his seneschal or 
 chamberlain or in other service with him, and that, for 
 the great confidence he had in him, lie gave him his 
 seal to keep, and while he so had it in his keeping he 
 made the writing without his knowledge, was bad ; for 
 he should have provided himself with a more trusty 
 keeper. In such case his remedy was by an action of 
 treason against the plaintiff by appeal of felony, or, if 
 he preferred, by a civil action in trespass. 
 
 Attorneys-at-law Britton styles "general attorneys." 
 They were to be admitted by royal letters patent, 
 which could be issued by the Chancellor (II, 286). 
 The Justices on the circuit could only admit attorneys 
 for a particular cause, upon the appointment of the 
 parties to it (II, 285b). All general attorneys could 
 levy fines and make the record of them (drographe\ 
 the fee for this record being limited to four shillings 
 (I., 37b). The class of sergeants-at-law was already rec- 
 ognized (1, 37b), and if any appeal of felony were abated 
 by reason of the mispleading or other default of a ser- 
 geant, since he ought to know the way to plead, he was 
 to be fined a hundred shillings (I, 40b), and if the 
 error were malicious, punished criminally and deprived 
 of his office. 
 
 * Cf. Fleta, 132, et seq.
 
 XIX 
 
 As we compare Britton with his predecessors in 
 English law, we find no such prominence given to mere 
 -form as marks the pages of Glanville ; nor is there 
 much of the scientific arrangement and civil law 
 learning of Bracton. When put by the side of Fleta, 
 Britton appears to write with a freer pen and to cover 
 a wider field. He has also a better understanding of 
 the sources of English law.* Torts receive more at- 
 tention, for they are now more fully remediable in the 
 king's courts (I, 23, 141, 157). 
 
 The main causes, however, Avhy Britton supplanted 
 the earlier treatises, so far as real use was concerned, 
 were, first, that he wrote in a language commonly un- 
 derstood by those taking part in court proceedings, 
 and, second, that he spoke in the king's name. 
 
 His general view of the royal prerogative was less 
 favorable to the liberties of the people than that taken 
 by Bracton. The latter, in speaking of the laws and 
 customs of England, says that " Quae quidem cum 
 fuerint approbatae consensu utentium et sacramento re- 
 gum confirmatae, mutari non poterunt nee destrui sine 
 communi consensu et consilio eorum omnium quorum 
 consilio et consensu fuerunt promulgatae." f 
 
 This has a more manly ring than the opening words 
 of Britton's first book, in which the law of the realm 
 is spoken of as " here ordained" (ceo qe cy est ordeyne) 
 
 Britton was widely read while it lay in manuscript* 
 
 * See Holmes, Hist, of the Common Law, 266. 
 t I, 1, 7.
 
 XX 
 
 and more than twenty-five copies made in the four- 
 teenth century are still preserved in English libraries. 
 The translation which follows was made from one of 
 these (collated, however, with others), which was found 
 at Lambeth palace. It may be one of the original 
 publications furnished by the Crown for the use of the 
 Church, and so date back to the last decade of the thir- 
 teenth century. This is the more probable because it 
 bears no name or title. 
 
 Britton was first printed about the year 1530, but 
 that edition is an imperfect one. 
 
 Mr. Nichols was obliged to choose between different 
 manuscripts in respect to the apportionment of some 
 of the chapters between the different books. Ville- 
 nage, for instance, he assigns to the first, Avhen others 
 place it in the second book. 
 
 The plan of throwing the work into sections sepa- 
 rately numbered is his, and was not adopted in any 
 previous publication. 
 
 This translation was published by Mr. Nichols in 
 connection with the original in the French text, to 
 which the upper half of each page AVUS devoted. His 
 book was issued from the Clarendon Press at Oxford in 
 1865, with a scholarly introduction, and the valuable 
 notes to the translation which are reproduced in this 
 volume. It was in two volumes, each paged separate! v, 
 but a marginal paging was also given which follows 
 the paging of the earliest printed edition, above de- 
 scribed. 
 
 In the present volume, the paging used is that which
 
 XXI 
 
 Mr. Nichols placed upon the margin of his volumes ; 
 but in order to facilitate the use of his very excellent 
 index, his paging is reproduced on the margin. Thus, 
 page 30 corresponds to page 75 of his first volume 
 (I, 75 ). The references in this introduction are to the 
 pages as numbered in the Oxford edition. 
 
 SIMEON E. BALDWIN. 
 YALE UNIVERSITY, 
 
 April, 1901.
 
 CONTENTS. 
 
 INTRODUCTION vii 
 
 INDEX 615 
 
 ARRANGEMENTS OF BOOKS AND CHAPTERS. 
 
 BOOK I. 
 
 OF THE AUTHORITY OF JUSTICES AND OTHER OFFI- 
 CERS, AND OF PERSONAL PLEAS, INCLUDING 
 PLEAS OF THE CROWN. 
 
 PROLOGUE 1 
 
 CHAPTER 
 
 I. Of the Authority of Justices 2 
 
 II. Of Coroners 6 
 
 III. Of Eyres of Justices 15 
 
 IV. Of the Chapters of the Eyre 20 
 
 V. Of Counterfeiting the Seal and Coin ; and of the 
 
 Trial of Felons 20 
 
 VI. Of Homicides 29 
 
 VII. Of Murder 32 
 
 VIII. Of Accidents 33 
 
 IX. Of Treasons 34 
 
 X. Of Arsons 35 
 
 XI. Of Burglars ! 36 
 
 XII. Of Prisoners 36 
 
 xxiii
 
 xxiv CONTENTS. 
 
 CHAPTER PAGE 
 
 XIII. Of Outlaws 41 
 
 XIV. Of Inlawry, or being restored to law 44 
 
 XV. Of Rape 46 
 
 XVI. Of Larcenies 47 
 
 XVII. Of Abjurations 53 
 
 XVIII. Of Treasure-trove, Wrecks, Waifs, and Estrays. . . 56 
 
 XIX. Of the King's Rights 58 
 
 XX. Of Franchises 62 
 
 XXI. Of various Wrongs 64 
 
 XXII. Of the King's Officers 71 
 
 XXIII. Of Appeals 81 
 
 XXIV. Of Appeals of Homicide 91 
 
 XXV. Of Appeals of Robberies and Larcenies 96 
 
 XXVI. Of Appeals of Mayhem 101} 
 
 XXVII. Of Attachments 105 
 
 XXVIII. Of Distresses 112 
 
 XXIX. Of Debt 128 
 
 XXX. Of the Sheriff's Tourns 146 
 
 XXXI. Of Measures lift 
 
 XXXII. Of Villenage 150 
 
 BOOK II. 
 
 OF DISSEISINS AND THEIR REMEDIES. 
 
 I. Of Suits concerning Land, pleadable by Attach- 
 ment 174 
 
 II. Of Purchase 175 
 
 III. Of Gifts 181 
 
 IV. Of Joint Purchases 189 
 
 V. Of Conditional Purchases 198 
 
 VI. Of Reversions and Escheats 201 
 
 VII. Of Purchases by Villains 203 
 
 VIII. Of Charters 206 
 
 IX. Of Seisins 212 
 
 X. Of Purchase of Rent 220 
 
 XI. Of Disseisins 222 
 
 XII. Where an Assize does not lie 2315 
 
 XIII. Of Remedies in Disseisin 238 
 
 XIV. Of Views in Disseisin 242 
 
 XV. Of the Proceedings in Assises 246
 
 CONTENTS. xxv 
 
 CHAPTER PAGE 
 
 XVI. Of Title to Freehold 250 
 
 XVII. Of Exceptions to the Writ 253 
 
 XVIII. Of Exceptions to the Person of the Plaintiff 260 
 
 XIX. Of Exceptions to the Action 265 
 
 XX. Of Assises turned into Juries 268 
 
 XXI. Of the Challenge of Jurors, and of the Trial of the 
 
 Assise 277 
 
 XXII. Of Judgments 281 
 
 XXIII. Of Appurtenances 287 
 
 XXIV. Of Common of Pasture 296 
 
 XXV. Of Remedy for Disseisin of Common 299 
 
 XXVI. Of Exceptions to Common 302 
 
 XXVII. 'Of Admeasurement of Pasture 305 
 
 XXVIII. Of Quo jure 309 
 
 XXIX. Of Reasonable Estovers 314 
 
 XXX. Of Nusances . 316 
 
 XXXI. Of Remedy of Nusances 320 
 
 XXXII. Of Exceptions in the Assise of Nusance 323 
 
 XXXIII. Of Farms... .329 
 
 VOL. II. 
 
 BOOK III. 
 
 OF INTRUSIONS AND THEIR REMEDIES. 
 
 I. Of Intrusions 333 
 
 II. Of Wardship ; of the various Tenures of Land ; and 
 
 of the Remedy against Supposititious Children. . 336 
 
 III. Of Marriage 351 
 
 IV. Of Homage 355 
 
 V. Of Reliefs 374 
 
 VI. Of Moitdancester 376 
 
 VII. Of a Mixed Action 385 
 
 VIII. Of a Divisible Inheritance ! 393 
 
 IX. Of the Plea De Rationabili Parte 398 
 
 X. Of Summons, and other proceedings in the Assise 
 
 of Mortdancester 402 
 
 XI. Of Warranties in Assise of Mortdancester 410 
 
 XII. Exception of ' same Descent ' 424
 
 xxvi CONTENTS. 
 
 CHAPTER 
 
 XIII. Exception upon the word ' seized ' 426 
 
 XIV. Exception upon the words ' last seized ' 429 
 
 XV. Exception upon the words ' in his demesne ' 431 
 
 XVI. Exception founded on the words ' as of fee ? 435 
 
 XVII. Exception founded on the words ' the day whereon 
 
 he died' 488 
 
 XVIII. Exception founded on the words ' of so much land 
 
 with the appurtenances ' 442 
 
 XIX. Exception founded on the words ' since the term '. 443 
 
 XX. Exception founded on the words ' next heir ' 444 
 
 XXI. Exception founded on the words ' who holds the 
 
 land' 447 
 
 XXII. Exceptions of Felony and Bastardy, and other ex- 
 ceptions to the Assise 450 
 
 XXIII. Of Assises turned into juries 457 
 
 XXIV. Of the Trial and Judgment in Assise of Mortdan- 
 
 cester 459 
 
 XXV. Of the writ called Quod permittat 460 
 
 XXVI. Of the writs of Cosinage, Ael, and Besael 462 
 
 BOOK IV. 
 
 OF PLEAS RELATING TO ADVOWSOMS AND THE 
 PROPERTY OF CHURCHES ; AND OF ATTAINS. 
 
 I. Of the Assise of Last Presentation 467 
 
 II. Of the day of Plea ; and of the Count of the Plain- 
 tiff 469 
 
 III. Of Exceptions in Assise of Last Presentation 470 
 
 IV. Of Exceptions independent of the Writ 477 
 
 V. Of the Verdict and Judgment in Assise of Last 
 
 Presentation 489 
 
 VI. Of the Action of Quare impedit 492 
 
 VII. Of the Assise of Utimm 496 
 
 VIII. Of Exceptions in the Assise of Utmm 498 
 
 IX. Of the nature of an Oath, and of the process of 
 
 Attaint 501 
 
 X. In what cases Attaint lies 507 
 
 XI. Of the Excuses of Jurors in mitigation of Attaint. 511 
 
 XII. Of the Trial and Judgment in Attaint. . . . 513
 
 CONTENTS. xxvii 
 
 BOOK V. 
 OF PLEAS OF DOWER, AND ENTRY. 
 
 CHAPTER PAGE 
 
 I. Of the Nature of Dower 518 
 
 II. Of the Establishment of Dower 522 
 
 III. Of the Assignment of Dower 527 
 
 IV. Of the Remedies for recovery of Dower 533 
 
 V. Of Vouching to Warrant}' in Pleas of Dower 536 
 
 VI. Of Exceptions respecting the Husband's death. . . . 538 
 VII. Of Exceptions founded on the invalidity of the 
 Marriage, and on the Dower established being 
 
 different from that claimed 540 
 
 VIII. Of the Pleadings when several Women claim Dower 
 
 of one Husband 546 
 
 IX. Of Exceptions relating to the Assent of the Father 548 
 
 X. Of common Exceptions in Actions of Dower 550 
 
 XI. Of the Judgment in an Action of Dower 561 
 
 XII. Of the Plea of Right of Dower 562 
 
 XIII. Of Admeasurement of Dower 563 
 
 XIV. Of the Actions founded on Writs of Entry 565 
 
 XV. Of the Proceedings in an Action of Entry 570 
 
 XVI. Of Exceptions in an Action of Entry 573 
 
 BOOK VI. 
 OF PROPRIETARY ACTIONS. 
 
 INTRODUCTION. Of the Plea of Right 575 
 
 I. Of Proximity of Heirs . . 575 
 
 II. Of Succession, and the Law of Inheritance 577 
 
 III. Of Degrees of Kindred 584 
 
 IV. Of the proceedings in a Plea of Right before the 
 
 Court Baron and County Court, and of its re- 
 moval into the Royal Court 588 
 
 V. Of Summons in a Plea of Right 597 
 
 VI. Of Essoins 602 
 
 VII. Of the Essoin de ultra mare 604 
 
 VIII. Of the Essoin founded on the King's Service 608 
 
 IX. Of the Essoin de malo veniendi 60!) 
 
 X. Of Attorneys 610 
 
 INDEX .. 615
 
 BRITTON, 
 
 BOOK I. 
 
 OF THE AUTHORITY OF JUSTICES AND OTHER OFFICERS, AND 
 OF PERSONAL PLEAS INCLUDING PLEAS OF THE CROWN. 
 
 Prologue. 
 
 EDWARD 1 by the grace of God, king of England, 
 lord of Ireland, and duke of Aquitaine, to all his faithful 
 people and subjects of England and Ireland, peace and 
 grace of salvation. 
 
 Desiring peace among the people who by God's per- 
 mission are under our protection, which peace cannot 
 well be without law, we have caused such laws as have 
 heretofore been used in our realm to be reduced into 
 writing according to that which is here ordained. And 
 we will and command, that throughout England and 
 Ireland they be so used and observed in all points, sav- 
 ing to us the power of repealing extending restricting 
 and amending them, whenever we shall see good, by 
 the assent of our earls and barons and others of our 
 Council ; 2 saving also to all persons such customs as by 
 prescription of time have been differently used, so far 
 as such customs are not contrary to law. 
 
 1 Edward I. 
 
 2 'This Preamble or Prologue is divided into two parts ; first, 
 
 1
 
 BRITTON. [I, *1 
 
 CHAPTER I. 
 
 Of the Authority of Justices. 
 
 1. First, with regard to ourselves and our Court, WT& 
 have ordained, that, inasmuch as we are not sufficient 
 in our proper person to hear and determine all the 
 complaints of our said people, we have distributed our 
 charge in several portions, as is here ordained. 
 
 2. We will that our jurisdiction be superior to all 
 jurisdictions in our realm ; so that in all kinds of 
 felonies trespasses and contracts, and in all manner of 
 other actions personal or real, we have power to give, 
 or cause to be given, such judgment as the case re- 
 
 the regal style, where he says, " Edward &c. ; " and then the 
 salutation, where he says, "and we will and command &c. ; " 
 affirming a prerogative in his person, that what he thinks right 
 ought to be held to be law ; according to the saying, " Quod 
 principi placuit pro lege habetur." Because peace cannot be 
 without law, nor law without a king : who can change the laws 
 and establish others, but not without the assent of the Earls and 
 others of his Council : ' quiaubi voluntasuniusin toto dominatur, 
 ratio plurimum succumbit.' (Note in MS. N.) This note is cited 
 by Selden as from a MS. in his possession ; Diss. ad Flet. p. 468. 
 The passage from the Civil Law, " Quod principi &o." (Inst. lib. 
 i. tit. 2. 6. Dig. lib. i. tit. 4. 1. 1) was imported into English Law 
 by Glanvill, in his Prologue, and was a frequent subject of con- 
 troversy with subsequent writers. See Bracton f. 107 ; Fleta 16,. 
 17. See also Selden. Diss. ad Flet. 466.
 
 I, *2.] OF AUTHORITY OF JUSTICES. % 
 
 quires without any other process, whenever WQ have 
 certain knowledge of the truth, as judge. And the 
 Steward of our household shall take our place within 
 the verge of our household; and his office shall ex- 
 tend to the hearing and determining the presentments of 
 the articles of our Crown, when we shall see good. 
 
 3. Further, we will that Justices Itinerant be assigned 
 to hear and determine the same articles in every county 
 and franchise every seven years ; and that our Chief 
 Justices of Ireland and Chester have the like power. 
 
 4. With respect to the Justices assigned to follow us 
 and hold our place wheresoever we shall be in England, 
 we will that they have cognizance of amending false 
 judgments, and of determining appeals and other 
 pleas of trespass committed against our peace, and that 
 their jurisdiction and record shall extend so far as we 
 shall authorise by our writs. 
 
 5. We will that the Earl of Norfolk, by himself or 
 another knight, be attendant upon us and upon our 
 Steward, to execute our commands and the attachments 
 and executions of our judgments and those of our 
 Steward throughout the verge of our house, so long as 
 he shall hold the office of Marshal. 
 
 6. In our household let there be a Coroner to execute 
 the business of the Crown throughout the verge and 
 wheresoever we shall be or come within our realm ; 
 and let the same person or some other be assigned to 
 assay all weights and measures in every our verge 
 throughout our realm according to our standards ; and 
 these two duties he shall not fail to do by reason of
 
 4 BKITTOK [I, *2 b. 
 
 any franchise, unless such franchise be granted in fee 
 farm or in alms by us or our predecessors. 
 
 7. In every county let there be a sheriff who shall be 
 attendant on our commands and those of our Justices ; 
 and let him have record of pleas pleaded before him 
 by our writs ; l and under the sheriffs let there be hun- 
 dredres Serjeants and beadles attendant on the sheriffs. 
 And in every county let there be coroners chosen 
 for keeping the pleas of our peace, as shall be author- 
 ised in the chapters concerning their office, and let them 
 have record of things relating to their office. 
 
 8. Moreover our will is, that there be Justices con- 
 stantly remaining at "Westminster, or at such other 
 place as we shall be pleased to ordain, to determine 
 common pleas according as we shall authorise them by 
 our writs ; and these Justices shall have record of the 
 proceedings held before them by virtue of our writs. 
 
 9. Also our will is, that at our Exchequers at West- 
 minster and elsewhere our Treasurers and our Barons 
 there have jurisdiction and record of things which 
 concern their office, and to hear and determine all causes 
 relating to our debts and seignories and things inci- 
 dent thereto, without which such matters could not be 
 tried ; and that they have cognizance of debts owing 
 to our debtors, by means whereof we may the more 
 speedily recover our own. 
 
 10. And we will, that Justices be assigned in every 
 county to have cognizance in such causes of petty 
 
 1 The text may admit of another interpretation. But see c. 28, 
 B. 1, and note there.
 
 I,*3.] OF AUTHORITY OF JUSTICES. 5 
 
 assises and other matters, as we shall assign them by 
 our letters patent, of which causes we will that they 
 have record. Let Justices also be appointed to deliver 
 the gaols in every county, once in every pleadable 
 week, l while they find anything to do ; and let them 
 likewise have record of the pleas brought before them 
 and of their judgments. 
 
 11. And although we have granted to our Justices 
 to bear record of pleas pleaded before them, yet we 
 will not that their record be any warrant to them in 
 their own wrong, nor that they be permitted to erase 
 their rolls or amend them or record contrary to the en- 
 rollment. And we will that the power of our Justices 
 be limited in this manner, that they go not beyond the 
 articles of our writs, or of presentments of jurors, or of 
 plaints before them made, save that they shall have the 
 cognizance of vouchers to warranty, and of other in- 
 cidental matters without which the original causes could 
 not be determined. And we forbid, that any have 
 power of amending any false judgment of our Justices, 
 except the Justices who follow us in our Court. w r ho 
 are authorised by us for that purpose, or ourselves, 
 with our Council ; for this we specially reserve to our 
 own jurisdiction. 
 
 12. We forbid all our Coroners and Justices, and all 
 
 1 The same rule is laid down in c. 12. s. 5, where the expression 
 is chescune simeyne en tens pledable. Mr. Kelhani interprets this 
 as excluding times prohibited by the church (see book ii. c. 21 s. 
 1) ; but the whole passage appears to require further explanation. 
 See Kelham's Britton, p. 8. n. (24.)
 
 f, BRITTOK -, .[I, *3&. 
 
 others to whom we have given authority of record, 
 that any, except our Steward and our Justices of 
 Ireland and of Chester, without our leave substitute 
 another in his place, to do any act of which he him- 
 self ought to make record ; and if anything be done 
 before such substitutes, \ve will that it be of no force, 
 though it should be of abjuration or outlawry. 
 
 13. We will also, that in counties and hundreds, and 
 in every freeholder's Court, the Courts be held by the 
 suitors ; the like in cities boroughs and franchises, and 
 in sheriffs' Tourns and in view of frankpledge. 
 
 CHAPTER II. 
 Of Coroners. 
 
 1. And because our will is, that coroners shall in 
 every county be the principal guardians of our peace, 
 to bear record of the pleas of our Crown, and of their 
 views, and of abjurations and outlawries, we will that 
 they be chosen according as is contained in our statute 
 concerning their election ; and when the} 7 shall be 
 chosen, we will that in full County they take the oath 
 before the sheriff, that they will lawfully and without 
 demanding any reward make their inquests and enroll- 
 ments, and do whatsoever belongs to the office of 
 coroner. 
 
 2. Also, we will, when any felony or misadventure 
 has happened, or if treasure be found under ground 
 and wickedly concealed, and in case of rape of women,
 
 I, *4.]. OF CORONERS. 7 
 
 or of the breaking of our prison, or of a man wounded 
 near to death, or of any other accident happening, that 
 the coroner do speedily, as soon as he is informed of it, 
 give notice to the sheriff and the bailiff of the place, 
 that at a certain day he cause to appear before him, at 
 the place where the accident happened, the four ad- 
 jacent townships and others if need be, whereby he 
 may inquire of the truth of the casualty. And when 
 he is come, let him swear the townships upon the Holy 
 Evangelists, that they will speak the truth of such ar- 
 ticles as he shall demand of them on our behalf. And 
 in this case, and at the sheriffs' tourns, and at view of 
 frankpledge, and in the office of escheators, and in our 
 presence before our Steward, and in the eyre of our 
 Justices, we will that people be sworn though our writ 
 come not. 
 
 3. Afterwards, let the coroner with the jurors go 
 and view the body, and the wounds and blows, or if any 
 one hath been strangled or scalded J or by other violence 
 come to his end ; and immediately after the view, let 
 the body be buried. And if the coroner find the body 
 buried before such view made, let him make an enroll- 
 ment thereof ; but let him nevertheless not fail to have 
 the body disinterred, and view it openly, and have it 
 viewed by the townships. 
 
 4. Those who are summoned, and come not to the 
 coroner's inquest, shall be in our mercy at the coming 
 of our Justices at the next assises in that county, if 
 
 1 Perhaps, suffocated, a sense suggested by Carpentier. Du- 
 cange, Gloss, s. v. excaldare.
 
 8 BRITTON. [I, *4b. 
 
 such defaults be entered in the roll of the coroners ; so 
 that neither our coroners, nor our escheators, nor any 
 mere inquirers, have authority to amerce any one for 
 any default. 
 
 5. When the coroner shall have a sufficient number 
 by whom he may make his inquests, let him in the first 
 place inquire, whether such person was killed by felony 
 or misadventure ; and if by felony, whether the felony 
 was committed in or out of a house, or whether in a 
 tavern, or at a wrestling-match or other meeting. 
 Then let it be inquired, who were present at the fact, 
 great and small, male and female ; and who are guilty 
 of the fact, and who of aid, or of force, or of command- 
 ment or consent, or of knowingly receiving such felons. 
 And if the coroner on the first inquiry suspect conceal- 
 ment of the truth, or that there is need of further in- 
 quiry, and that by others, let inquiry be made again 
 and again ; but let him not for any contrariety in the 
 verdicts alter or curtail his enrollment in any point. 
 And further, he must inquire of the manner of the kill- 
 ing, and with what Aveapon, and of all the circum- 
 stances. 
 
 6. And let the sheriff forthwith cause all those who 
 shall be indicted to be taken, if they be found. If they 
 be not found, let the coroner inquire, who they are 
 who have withdrawn themselves on that account ; and 
 let the sheriff forthwith seize their lands into our hand 
 simply, without removing bailiffs or putting in any 
 one on our behalf, until the parties are convicted b\ r 
 judgment or cleared of the felony. Next, let him seize
 
 I, *5.] OF CORONERS. 9 
 
 all their chattels into our hand, and appraise them by 
 good inquest, and that, whether they be the chattels 
 of villains, who have fled and are suspected, or of free- 
 men, and cause the value to be enrolled in the coroner's 
 roll, and the goods to be delivered to the townships to 
 be answered for to us, in case the person indicted shall 
 either refuse to submit himself to justice in our Court, 
 or be afterwards attainted as a felon. Afterwards let 
 it be inquired, whether any of the persons indicted 
 ever by virtue of our writ of menace found surety of 
 our peace to the person killed ; and let the names of 
 the mainpernors be enrolled according as shall be found 
 by the verdict. 
 
 7. If there be any one who would seek vengeance of 
 the death by appeal of felony, let the male, of what 
 age soever he be, be received before the female ; and 
 the next of blood before one more remote. And if the 
 plaintiff is willing to prosecute his appeal within the 
 year and day, let him find in full county two sufficient 
 pledges, distrainable to the sheriff of the county in 
 whose bailiwick the felony was committed, that he will 
 prosecute his appeal according to the law of the land, 
 and thereupon let him be admitted thereto. Then let 
 the coroner enter his appeal and the names of his 
 pledges. Afterwards, let the bailiff of the place where 
 the felony was committed be commanded to have tho 
 bodies of the appellees at the next county court to an- 
 swer to the plaintiff. 
 
 8. And if he appeal several, some of the fact and 
 some of the force or accessory facts, to every appeal let
 
 10 BRITTOK [I, *5 1. 
 
 two pledges to prosecute be entered ; and let the appeal 
 be entered separately against each person. If the 
 bailiff at the second county court testify that he could 
 not find them, then let it be awarded that the princi- 
 pals appealed of the fact be solemnly demanded that 
 they do come to our peace, to take their trial for the 
 felony whereof they are appealed ; and let them be so 
 demanded from county court to county court until 
 they appear or be outlawed. And if the plaintiff 
 makes default at any county court, then let the exigent l 
 stand over till our coming into the county or the Eyre 
 of the Justices ; and if the plaintiff will resume his ap- 
 peal, let him on finding other pledges to prosecute be 
 received thereto, so as he pray it within the year and 
 day. 
 
 9. But whether those who were appealed of consent- 
 ing and of accessory facts withdraw themselves or ap- 
 pear, no exigent shall run against them, nor shall they be 
 compelled to answer to the plaintiff before judgment 
 be pronounced in the case of the principal. But if the 
 principal be outlawed, then let exigents be immediately 
 awarded against the accessories. And when any of 
 them, is outlawed, or hath withdrawn himself and is 
 suspected, let the coroner inquire of whose tithing or 
 whose mainpast such fugitive was, and make his en roll - 
 
 1 The exigend or exigent is the writ or precept in pursuance of 
 which an absent defendant is exacted or required at the county 
 court, with a view to his outlawry. The name and the practice 
 still continue. See Termes de la ley, s. v. Exigent ; 3 Blackst. 
 omm. 283. App. xix. ; 4 ib. 319.
 
 J, *6.] OF COKONERS. 11 
 
 inent according to the verdict ; and let him inquire 
 of the lands and chattels of every fugitive, and in 
 what place he has had property elsewhere than in his 
 bailiwick. And if they appear before the outlawry of 
 the principal, let them be replevisable, and immedi- 
 ately after outlawry of the principal, let them come and 
 answer to the plaintiff. 
 
 10. If the felony was committed out of a dwelling- 
 house, then let the coroner inquire, who first found the 
 body, and let him or them, if there be several, women 
 as well as men, young as well as old, be taken and re- 
 leased by pledges, until our coming into the county or 
 the Eyre of the Justices ; and let the coroner cause 
 their names and the names of the pledges to be imbre- 
 viated. 
 
 11. We forbid every coroner, upon pain of imprison- 
 ment and heavy ransom, to make his inquests of felo- 
 nies accidents or other things belonging to his office, 
 by procurement of friends, 1 or to remove a juror on 
 the challenge of any party, or to take anything by him- 
 self or other, or suffer anything to be taken by his 
 clerk or any person belonging to him, for the exe- 
 cuting of his office ; or to erase, or alter, or practise 
 any kind of fraud in his rolls, or suffer it to be done. 
 
 12. If he finds that any one has come to his death 
 by accident, then let him inquire by what accident, 
 whether he was drowned, or fell, or whether he was 
 
 killed without felony prepensed of any, other, or was a 
 
 1 The meaning appears to be : by procuring friends of the 
 parties implicated to make up the jury.
 
 12 BRITTON. [I, *6 b. 
 
 felon of himself ; and if he was drowned, whether in 
 the sea, or in an arm of the sea, in fresh water, or in a 
 well, or ditch, and by what occasion he was drowned ; 
 also from what vessel he fell, and what things were in 
 such vessel, and to whose hands they came, and of what 
 value they were, and who first found the body. If in 
 a well, then let it be inquired, whose the Avell was. If 
 by a fall, whether it was from a mill, or from a horse, 
 or a house, or a tree. If from a mill, what things were 
 then moving in the mill, who owned the mill, and the 
 value of the things therein then moving ; and likewise 
 of houses, horses, trees, and carts. 
 
 13. If the person was killed, then let it be inquired, 
 whether it was done by man or beast or any other 
 thing ; if by man, Avhether by the person himself, or 
 by another ; and if by another, whether the misad- 
 venture happened by chance, or from necessity to avoid 
 death ; if by a beast, whether by a dog or other beast? 
 and Avh ether the beast was set on to do it, and en- 
 couraged to such mischief, or not, and by whom, and so 
 of all the circumstances. 
 
 14. Of such as are drowned within our realm by fall- 
 ing from a vessel not at sea, our will is, that the ves- 
 sel and whatsoever shall be found therein be appraised 
 as a deodand and enrolled by the coroner, -that is to 
 say, whatsoever was moving ; for if a man happens to 
 fall from a ship under sail, mothing can be deemed the 
 cause of his death, except the ship itself and the things 
 moving in it ; but the merchandise lying at the bottom 
 of the ship, is not presumed to be the occasion of bis
 
 I, *7.] OF CORONERS. 13 
 
 death, and so in like cases. And of those drowned in 
 fountains and wells, we will, as in the other cases, that 
 the coroners admit to mainprise the first finders, and 
 enroll their names and the names of their pledges; and 
 of those who have come to their death by carts or mills, 
 and in the like cases, let the coroner make his inquests 
 and enrollments as above directed where persons are 
 drowned. 
 
 15. Whenever the coroner takes his inquest on the 
 body of a person feloniously killed, let him cause one 
 or more of kin to the deceased on the side of the father 
 or mother to appear before him in proof of Englishery 
 according to the custom of the country, and enroll their 
 names. 
 
 16. We will also that the coroners receive the con- 
 fessions of felonies made by approvers in the presence 
 of the sheriff, whom we intend to be his controller 
 in every part of his office ; and let them cause such 
 confessions to be enrolled. And when any man has 
 fled to church, we will that the coroner as soon as he 
 has notice of it, command the bailiff of the place, that 
 he cause the neighbours and the four nearest town- 
 ships to appear before him at a certain day at the 
 church where the fugitive shall be ; and in their 
 presence he shall receive the confession of the felony ; 
 and if the fugitive pray to abjure our realm, let the 
 coroner immediately do what is incumbent on him. 
 But if he does not pray abjuration, let him be de- 
 livered to the township to keep at their peril. 
 
 17. Tf the coroner be to take an inquest of rape, let
 
 14: BRITTOK [I, *7 l>. 
 
 him carefully inquire into all the circumstances of the 
 force and of the felony, and make enrollment of the 
 presumptive signs, such as stains of blood, and tearing 
 of clothes. If of a wounding, let him inquire with 
 what weapon, and of the length and depth of the 
 wound. Let him likewise enter in his roll all judg- 
 ments of death given in his bailiwick by any other than 
 our Justices ; and in such cases, we will that their rolls 
 be a record. And whereas it is declared above, that 
 coroners ought to make enrollments of appeals of fel- 
 onies of the death of a man, let them do the like in 
 appeals of rape, robbery, larceny, and in appeals of 
 every other kind of felony. 
 
 18. It also belongs to their office to inquire of ancient 
 treasure found in the earth, of wreck of the sea, of 
 sturgeons and whales, as soon as they shall have notice 
 thereof ; and to attach and let to mainprise those who 
 have found or made away with them, and to enroll 
 their names, and to secure such findings for our use. 
 And we will that our sheriffs and bailiffs be attendant 
 on our coroners, and execute their precepts.
 
 I, *8.] OF EYRES OF JUSTICES. 15 
 
 CHAPTER III. 
 
 Of Eyres of Justices, 
 
 1. With respect to our coming, and the Eyre of our 
 Justices, we will that general proclamation be solemnly 
 made in the markets cities and boroughs throughout 
 the county, as well within franchises as without, that 
 all the freemen of the county, and four men and the 
 provost of every vill, and all the mainpernors and 
 those who have been let to mainprise throughout the 
 county, appear at a certain day, which shall be forty 
 days distant at least, before us, or such Justices as shall 
 be named in our precept to keep the eyre in the same 
 county : and that all those who claim any franchise 
 in the same county be the same day before us or the 
 same Justices, and that every one show distinctly in 
 writing what franchises he claims ; and that all those, 
 who have any complaints to make against our minis- 
 ters or bailiffs or those of others or any persons what- 
 soever, be there at the same day, to exhibit such com- 
 plaints and find pledges to prosecute ; and that the 
 sheriff of the county have there all such writs as have 
 been adjourned until the eyre, and all the assizes of 
 novel disseisin, mortdancester, darrein presentment, 
 utrum, and of dower, and all the prisoners and attach- 
 ments. And meantime we will command our Justices 
 of the bench, that they adjourn all the pleas of the
 
 16 BRITTON. [I, *8 b. 
 
 county and send them before us or such Justices 
 itinerant in that county, so that they be there at the 
 day named. 
 
 2. And as to the coming of our Justices, our will is, 
 that as soon as the} 7 be come to the place appointed 
 for holding the eyre, they produce the authority they 
 have of us by our letters patent, and cause them to be 
 read in the hearing of the people ; and afterwards let 
 him who is first named in the letters, show and declare 
 to the people the occasions and advantages of their 
 coming into that county ; this done, let them receive 
 the essoins of the common summons, which shall be 
 immediately determined and adjourned. Then let the 
 essoins of pleas of land be received ; and let these be 
 adjudged and the fourth day after adjourned. 
 
 3. Next let the letters whereby any persons whatever 
 claim to hold franchises in that county be received, 
 and let their claims be enrolled, and a transcript of 
 the same enrollment be delivered to the sheriff ; and 
 as to all such franchises as are not claimed, let the 
 sheriff be commanded to seize them into our hands by 
 way of distress, and be answerable to us for the issues, 
 until those who shall claim them have saved their de- 
 faults for not attending the summons ; and let them 
 Mien answer by what warrant they have held them. 
 
 4. Afterwards let the Justices take the wands of the 
 ,heriff, and of the lords of the franchises, and of all the 
 other inferior bailiffs, and then let the sheriff swear, 
 that he will duly execute the lawful commands of our 
 Justices, and will well conceal the secrets and counsels
 
 T, *9.] OF EYRES OF JUSTICES. 17 
 
 of their eyre, so help him God and the Saints. And 
 after this oath is taken, let the wand be delivered back 
 to him. Then let the sheriff present all his officers and 
 bailiffs, clerks and others, by whom the precepts of the 
 Justices and executions of their judgments are to be 
 performed ; and let them all take the same oath that 
 the sheriff took, and their wands be delivered back to 
 them. 
 
 5. And if there be any archbishop, bishop, abbot or 
 prior, earl or baron, or other, that claims the franchise 
 of return of our writs, let him take the same oath that 
 the sheriff took ; or let them take their wands in their 
 hands, and present such bailiffs in their stead as will 
 take the oath for them, and for whose acts they Avill 
 be answerable as to that which to their office shall 
 belong : and then let the wands be delivered by those 
 lords to their bailiffs. Afterwards let proclamation 
 be made, that all persons belonging to franchises, 
 except the bailiffs, depart unto their own homes until 
 further summons or until a certain day. 
 
 6. Next let the bailiffs of the sheriff swear, that they 
 will truly present two or four 1 of their bailiwick, or 
 more or less, who are not appealed of any crime, nor 
 are appellors, and such as shall best know and will 
 
 1 According to the so-called Statute of uncertain date, but 
 probably of the early part of the reign of Edward I, entitled ' de 
 sacramento ministrorumregis,' tivo knights orprodes homes were 
 to be chosen by the bailiffs, and twelve knights or prodes homes 
 to be chosen of themselves and others of their hundred by the 
 first two. According to Bracton and Fleta/or/r knights were to 
 be first chosen. Cf. Blackst. Comm. vol. iv. p. 302.
 
 18 BKITTOX. [I, *9 b. 
 
 inquire and discover secret acts concerning the breach 
 of our peace. And when the names are given in, let 
 those come and swear, that they will lawfully associate 
 to themselves such others, by whom the truth may 
 best appear. Afterwards, let them, together with 
 those whom they have chosen for the most sufficient, 
 swear, that they will lawful presentment make of such 
 chapters as shall be delivered to them in writing, and 
 that in this they will not fail for an}' love, hatred, fear, 
 reward, or promise, and that they will conceal the 
 secrets, 1 so help them God, and the Saints. And then 
 let the chapters be read to them, and delivered to every 
 dozen separately. 2 
 
 7. Afterwards, let proclamation be made, that none 
 presume to amerce any man for making default in a 
 court baron or hundred, who shall at that time be 
 before us or our Justices ; and that no market be kept 
 within ten miles, except in the town where our Justices 
 shall be, if the town is not able to find sufficient pro- 
 vision for such as shall abide there ; and that, if any 
 
 1 This clause of the oath is not in Bracton or Fleta, nor in the 
 statute ' for oaths of the king's officers.' In MS. N. a form of 
 oath is given in French nearly resembling that in the text, and 
 concluding, ' mes vostre conseil e de ceste eyre bien e loialmente 
 celeray.' 
 
 2 ' He [qu. the Justice] shall then read the articles distinctly 
 in English. And that which they shall present, he shall put first 
 in a roll, which shall be their note and shall remain with them. 
 And afterwards of that and the other things, by command and 
 direction of the more prudent of the twelve, he shall make his 
 chief roll.' (Note in MS. K )
 
 I, *1U.J OF EYRES OF JUSTICES. 19 
 
 person be come who has no business on hand, he shall 
 make his attorney, if he please, and depart home. 
 
 8. Afterwards, let the coroners, or their heirs, be 
 Commanded to deliver to the Justices their rolls since 
 the last eyre ; and we will that the Justices seal them 
 under their seals, and forthwith without any examina- 
 tion deliver the rolls back to them, so that they be 
 every day with their clerks before the Justices, while 
 they have occasion for them. 
 
 9. Afterwards, let the presentments upon the chapters 
 delivered to the dozens be received in writing ; and let 
 the same be indented, so that the Justices may have 
 one part thereof and the other may remain with the 
 presenters. The chapters which are to be delivered 
 to them are not however of any certain number ; for 
 as crimes increase, so much the chapters and other rem- 
 edies increase. Some of these chapters are concern- 
 ing counterfeiters, murders, accidents, and other mat- 
 ters, as will appear from the following heads.
 
 20 BRITTON. [I, *10 b. 
 
 CHAPTER IY. 
 
 Of the Chapters of the Eyre. 
 
 In the first place, let the old articles presented in 
 the last eyre in that county touching breaches of our 
 peace, which then remained undetermined, be inquired 
 of, heard, and determined. Of our mortal enemies 
 abiding in our land presentment cannot properly be 
 made, 1 but accusation and appeal, as will appear in the 
 chapter of appeals. 
 
 CHAPTER Y. 
 
 Of counterfeiting the seal and coin and of the trial 
 of felons. 
 
 1. Let inquiry be made of forgers, and not only of 
 such as counterfeit our seal, but of all those who shall 
 have in any way falsified our seal, as those who have 
 fraudulently hung it to any charter without our leave, 
 or when it has been stolen or robbed or otherwise 
 obtained, have sealed writs therewith without other 
 
 1 This appears to be a correction of Fleta 24 (li. 1. cap. 20. sect. 
 1), who puts treason as the first article of the eyre. It does not 
 appear among the matters enumerated by Bracton, or in the 
 Capitula Itineris (Stat. incert. temp.) But compare post. c. 30. 
 s. 3.
 
 I, *11.] OF FORGERS. 21 
 
 authority. And also of forgers who have counterfeited 
 our coin, or put more alloy in it than according to the 
 form and usage of our mint ought to be put, or that 
 have coined money, whether good or bad, in our realm 
 without our leave. Likewise of those who have clipped 
 our coin or otherwise impaired it. Of those also who 
 have brought into our realm counterfeit money in any 
 way resembling ours in despite and damage of us and 
 our people. 
 
 2. Upon presentment of this felony, we will that the 
 sheriff do cause all those who are indicted of it to be 
 instantly taken, and their bodies kept safely in prison ; 
 and that they be brought before us or our Justices ; 
 and, to the intent that no one may be unprepared with 
 his answer, let those who are so taken have fifteen 
 days at least, if they pray it, to provide their defence, 
 and in the meantime let them be safely kept. And 
 when they shall appear in judgment before us or before 
 our Justices, let them be there arraigned by the sheriff 
 or other officer on our behalf, and indicted of the 
 felony according to the nature of the presentment. 
 And if they will not put themselves upon their ac- 
 quittal, 1 let them be put to their penance, until they 
 
 1 That is, if they reiuse to be tried by an inquest or jury. This 
 sort of trial appears, in theory at least, not to have been con- 
 sidered valid either in criminal or civil causes, without the con- 
 sent of the parties. Compare liv. ii. c. 20. 2. So in liv. iii. c. 
 23. 4, the consent of the party is extorted by the alternative of 
 a judgment against him. It has been a question, whether the 
 penance here described, which is referred to in Stat. West. I. c. 
 12, as prisone forte et dure, \vas introduced by that Statute.
 
 22 BRITTOK [T, *11. 
 
 prav to do it ; and let their penance be this, that they 
 be barefooted, ungirt and bareheaded, in the worst 
 place in the prison, upon the bare ground continually 
 night and day, that they eat only bread made of barley 
 or bran, and that they drink not the day they eat,- nor 
 eat the day they drink, nor drink anything but water, 
 and that they be put in irons. 
 
 3. If one indicted of felony alleges clergy, and be 
 found to be a clerk and claimed by the ordinary, let 
 it be inquired how he is suspected ; and if the present- 
 ers upon inquiry find that there are no certain grounds 
 
 Coke contends (2 Inst. 178) that it was previously used in cases 
 of appeals, (see post. c. 24. s. 7. ; Fie. 51, 33), but was extended 
 by that Statute to indictments at the king's suit. Others have 
 observed that no trace of it is to be found in any authorities 
 anterior to the reign of Edward I ; and examples have been cited 
 from earlier records, showing that by the practice of the previous 
 reign, the inquest might be taken by jury without the consent 
 of the prisoner, either, voluntary or enforced. (See Hale, Pleas 
 of the Crown, vol. ii. p. 321; Kelham's Britton, p. 35.) This 
 might appear to be in some degree confirmed by the general 
 statement of Glanville, that in cases of treason where there was 
 no appellor, but the prisoner was accused by common fame, the 
 truth was to be inquired by inquests and interrogations before 
 the Justices. (Glan. li. 14. c. 1.) On the other hand, it does not 
 appear to have been observed, that Bracton, although he does 
 not mention the particular means employed, expressly refers to 
 a prisoner on trial for felony being forced to put himself upon 
 the inquest per patriam. " Istam vero formam inquisitionis per 
 patriam servabnnt justiciarii generaliter in omnibus inquisition- 
 ibus quae faciendae sunt pro morte hominis, ubi quis se posuerit 
 super inquisitionem sive sponte sive per cautelam inductus sive 
 per r^cessitatem." Brae. 143 b.
 
 T, *11 I.} OF FORGERS. 23 
 
 for suspicion, let the judgment be that ne be entirely 
 acquitted ; and if he is believed to be guilty, let his 
 chattels be appraised, and his lands taken into our 
 hands, and his body delivered to the ordinary ; J and 
 if the ordinary deliver him out of prison before due 
 acquittance according to the purgation of clerks, or 
 if he keep him so negligently as to let him escape, or 
 out of malice keep him in such manner as to prevent 
 his coming to his purgation, and be convicted thereof, 
 in each of these cases let the ordinary be in our 
 mercy. 2 And according as the ordinary shall certify 
 us of the acquittance 3 of those clerks, we will cause 
 restitution to be made them of their goods, if they 
 have not fled from our peace. 4 
 
 1 If the principal accused refused to put himself on the coun- 
 try, and claimed clergy, the accessories could not be attainted of 
 felony. A case to this effect is cited in the note in MS. N. as 
 having occurred at Lincoln. ' The accessory put himself on the 
 country and by Sir John del Ille was commanded to the gallows. 
 But Sir Elias de Preston said "Repeal that judgment, for the 
 principal never put himself, and is not yet attainted." And he 
 was ordered back to prison and afterwards made his fine for ten 
 pounds.' John del Isle was a baron of the exchequer from 23 
 Ed. I. to 12 Ed. II. (Foss, Judges, vol. iii. p. 270). Elias de Pres- 
 ton is not mentioned in Mr. Foss's work. 
 
 - The amercement shall be 100s. at least ; and 100Z. for ad. 
 escape from prison.' (Note in MS. N.) 
 
 8 ' Et sic habet ordinarius recordum in eodem.' (Note in MS. 
 
 N.) 
 
 4 ' Hence the inquest may be had, whether the clerk put him- 
 self thereupon or not, for two things ; namely, to know for what
 
 21 BRITTON. [I, *11 b. 
 
 4. For we will that Holy Church retain her liberties 
 unimpaired, so that she have cognizance of judging of 
 mere spirituality, of testaments, of matrimony, of 
 bastardy, of bigamy, and in the felonies of clerks, and 
 in the correction of sins, provided the ordinaries take 
 of the laity no money nor the value thereof, nor give 
 judgment of any property except concerning testament 
 and matrimony and mere spirituality, and of the repairs 
 of churchyards and defects in churches, and of mor- 
 tuaries, and of tithes, without prejudice to us. 
 
 5. And if any ordinary, either in person or by his 
 proctor, demands one who is a mere layman, or a biga- 
 mist, 1 or of such other condition that he ought not to 
 enjoy the privilege of Holy Church, we will that he 
 be committed to prison and punished by fine ; and so 
 of a proctor who presents himself for the ordinary with- 
 out warrant in writing. 
 
 6. If any felons will confess their crimes and accuse 
 others and become approvers, let them be put out of 
 penance, and let their confessions be presently received 
 
 cause he ought to be delivered to the bishop, and also for his 
 chattels, whether he has forfeited them by his flight.' (Note in 
 MS. N.) 
 
 1 Bigamus in the canon law is he that has married two or more 
 virgins successively, or that has married a widow. See Coke, 
 Inst. Pt. ii. p. 273 ; Blackstone, Comm. vol. iv. p. 163. By the 
 council of Lyons, A. D.. 1274, Bigamiwere declared to be ' omni 
 privilegio clerical! nudati, et coertioni fori saecularis addicti,'and 
 forbidden under anathema to assume the tonsure. (Sext. Deer, 
 tit. 12.) This was confirmed in England as to benefit of clergy 
 by the Statute 4 Ed. I, thence called Statutum de bigamis.
 
 I, *12.] OF FORGERS. 23 
 
 and enrolled by the coroner, and from that day forward 
 let them have of the sheriffs three halfpence a day for 
 their support. 
 
 7. When persons appealed at the eyre shall appear 
 for trial, and demand judgment, whether they ought 
 to answer concerning an act done before the last eyre 
 and not then presented in that county, in all such cases 
 they shall be put to their answer, 1 because we will not 
 that felonies remain unpunished ; and if the article 
 was not presented in the last eyre, the presenters for 
 that hundred in the former eyre shall be in our mercy 
 for the concealment, and any of them found to be liv- 
 ing shall be punished by imprisonment and fine. 
 
 8. When the defendants have put themselves upon 
 the country, and the jurors are come into court, they 
 may be challenged in the following form. Sir, this 
 man ought not to be upon the jury, because he indicted 
 me, and I presume of him and all those who indicted 
 me, that they stiil bear the same ill will against me 
 as when they indicted me. And we will that, where 
 a man's life is at stake, this exception shall be allowed. 
 The} r may also be challenged in many other ways 
 besides this, as shall be shown in treating of exceptions. 
 And when the accused either cannot or will not chal- 
 lenge the jurors, or there are jurors enough unchal- 
 lenged, to the number of twelve, let them go to the 
 book. If there are not sufficient, let the challenges be 
 
 1 This is mentioned as a valid exception by Bracton, who cites 
 a case of the 9 Hen., III. in affirmance of it. Brae. 116 b. 140 b. 
 141 ; soFleta49 (6).
 
 26 BBITTOK. [1, *12 1. 
 
 tried ; and if the challenges be found true, so that 
 there are not full twelve remaining, let another day 
 be appointed, and let the sheriff summon more. 
 
 9. When they are to swear, let them swear one after 
 another, that they will speak the truth of what shall 
 be demanded of them on our part, so help them God 
 and the Saints. And let no falsehood be ever know- 
 ingly practised ; for they cannot swear in a matter t 
 of greater moment, than in that of life and member.! 
 Afterwards let the jurors be charged of what fact they 
 are to speak the truth. And then let them go and 
 confer together, and be kept by a bailiff, so that no 
 one speak to them ; and if any one does so, or if there 
 be any one among them who is not sworn, let him be 
 committed to prison, and all the rest amerced for their 
 folly in suffering it. 
 
 10. If they cannot all agree in one mind, let them 
 be separated and examined why they cannot agree ; 
 and if the greater part of them know the truth and the 
 other part do not, judgment shall be according to the 
 opinion of the greater part. And if they declare upon 
 their oaths, that they know nothing of the fact, let 
 others be called who do know it ; 1 and if he who put 
 
 1 The statements of the text as to receiving the verdict of a 
 majority, and as to impanelling a fresh inquest in criminal cases 
 require to be examined and compared with other authorities. 
 Section 1'3 appears to be inconsistent. See a learned note by Mr. 
 Kelham upon this passage in his translation of the first book of 
 Britton, and the authors there cited. The question as to the 
 right of the judge in criminal cases to discharge a jury without
 
 I, *13.] OF FORGERS. 27 
 
 himself on the first inquest Avill not put himself on a 
 new jury, let him be remanded back to penance till he 
 consents thereto. 
 
 11. We will also, that if any man, who is indicted of 
 a crime touching life and limb, and perceives that the 
 verdict of the inquest, on which he has put himself, is 
 likely to pass against him, desires to say that any ono 
 of the jurors is suborned to condemn him by the lord, 
 of whom the accused holds his land, through greediness 
 of the escheat, or for other cause by any one else, the 
 Justices thereupon shall carefully examine the jurors, 
 whether they have any reason to think that such_slan- 
 der is true. And often a strict examination is neces- 
 sary ; for in such case inquiry may be made, how the 
 jurors are informed of the truth of their verdict ; when 
 they will say, by one of their fellows, and he perad- 
 venture will say, that he heard it told for truth at the 
 tavern or elsewhere by some ribald or other person un- 
 worthy of credit ; or it may happen that he, or they, 
 by whom the jurors have been informed, were intreated 
 or suborned by the lords, or by the enemies of the per- 
 son indicted, to get him condemned ; and if the Justices 
 find this to be the fact, let such suborners be appre- 
 hended and punished by imprisonment and fine. 
 
 12. And if the jurors are in doubt of the matter and 
 not certain, the judgment ought always in such case to 
 be for the defendant. If they say that he is not guilty 
 of the felony, the award shall be, that he go quit, and 
 
 a verdict, has been discussed in modern times in the case of 
 Regina v. Charlesicorth, 1 Best and Smith, 460.
 
 28 BRITTON. [I, *13 ft. 
 
 that he have restitution of his lands and of all his 
 goods. And if they find that he is guilty, as he hath 
 offended by treason against us, let him be drawn and 
 condemned to death. 
 
 13. In felony of counterfeiting there lies no appeal, 
 except between the accuser on our behalf and the ac- 
 cused, and between the approved, who has confessed 
 the felony, and him whom he has appealed as his ac- 
 complice, and between a person found in possession, 
 and another whom he shall vouch to warrant ; for in 
 these cases no suit lies, except ours. 
 
 14. With regard to false writs or writs disavowed or 
 writs of false judgment, found in any person's possession, 
 we will, that such persons be arrested and detained in 
 prison, until they are warranted, or until those whom 
 they have vouched have either put themselves on their 
 defence or are outlawed ; and if the vouchees are out- 
 lawed, or if they have vouched such as are not known in 
 the county, then we will, that they either acquit them- 
 selves by the county or be put to penance. If they 
 are warranted by those who cannot justify those writs 
 according to the laws and usages of our realm, let 
 judgment be given against the warrantors; and if the 
 vouchee refuses to warrant, then the course of law 
 is such as shall be afterwards mentioned. And with 
 respect to false and clipped money and money coun- 
 terfeited like our coin, let proceedings be taken accord- 
 ing to the statutes concerning our coin, or according to 
 what is laid down concerning false writs found in any 
 one's possession.
 
 I, *14.] OF HOMICIDES. 29 
 
 CHAPTER VI. 
 
 Of Homicides. 
 
 1. Let inquiry also be made of homicides and mur- 
 ders ; and our will is, that those, who command aid or 
 counsel others to kill, be indicted of this felony as well 
 as the principal actors. And inasmuch as this felony 
 may be committed under colour of judgment through 
 malice of the judge, or under some other pretence, as 
 by false physicians and bad surgeons, and by poison 
 and sundry other ways, our pleasure is, that all those 
 who have committed such secret felonies be indicted ; 
 and also those who falsely for hire, or in any other 
 manner, have condemned, or caused to be condemned, 
 any man to death by means of a false oath. 
 
 2. According to the presentment of this article let it 
 be commanded, that all those who are indicted be ap- 
 prehended ; and if any one suspected of this crime be 
 dwelling out of the county, let his lands be immediate- 
 ly seized, and his chattels appraised and delivered to 
 the townships ; and let him afterwards be put in exigent 
 until he appear or be outlawed. And when any felons 
 appear in judgment to answer of their felony, our will 
 is, that they come barefooted, ungirt, uncoifed, and 
 bareheaded, in their coat only, without irons or any 
 kind of bonds, 1 so that they may not be deprived of 
 
 1 In MS. A T . the above words, which probably originally stood
 
 30 BRITTON. [I, *U *. 
 
 reason by pain, nor be constrained to answer by force, 
 but of their own free will ; and then, agreeably to the 
 presentment against them, let them be indicted. 
 
 3^ If the prisoners are found guilty, let their judg- 
 ment be death for death, and let their movable goods be 
 ours, and their heirs disinherited ; we will also have 
 the year and day of their inheritances, of whomsoever 
 the} T are holden, that they may remain one year and 
 one day in our hands, so that we neither cause the tene- 
 ments nor the woods to be destroyed or Avasted, 1 nor 
 the meadows to be ploughed, as was wont to be done 
 in memory of felonies attainted, such tenements being 
 excepted whereof the felons were not invested or seised 
 in their demesne as of fee ; for of such lands as they 
 held for term of life or years, or by fresh disseisin, or 
 in fee farm rendering annually the true value, or in 
 mortgage or on like condition, we will take nothing. 
 
 as in the text, are erased and altered, in the same hand as the 
 notes frequently cited, as follows: "en lour peiore cote hors de 
 trop gros fers e hors de trop gros liens." This may serve to show 
 that the practice was not so indulgent as the rule laid down In- 
 cur author. 
 
 1 It was the opinion of Bracton that the year and day were 
 given to the king in lieu of the right of laying waste the lands of 
 felons. The Great Charter (c. 22) appears implicitly to give ny 
 the claim to waste, and to have been so understood by Bracton 
 and the authors of Fleta and Britton (Brae. 129 ; Fie. liv. i. c. 28, 
 6). But both rights were afterwards insisted on (Brae. 129, 
 1296; Stat. Praerog. Reg. 17 Ed. II.) ; and such appears to be 
 the present law in cases of murder. See Hawkins's Pleas of the 
 Crown (8th ed.), vol. ii. p. 638.
 
 I, *15.] OF HOMICIDES. 31 
 
 We will also, that their lands aliened after commission 
 of their felonies, be escheated to the lords of the fees, 
 so that immediately after judgment given it shall be 
 lawful for those lords to demand by our writ of escheat 
 the tenements so aliened. 
 
 4. If any man be found killed, and another be found 
 near him with the knife or other weapon in his hand 
 all bloody, wherewith he killed him, the coroner shall 
 be presently fetched, and in his presence the felon shall, 
 upon the testimony of those who saw the felony done, 
 be judged to death. The like when a person is found 
 in a house, or other place where one shall be found 
 killed, 1 and the person found alive is neither hurt nor 
 wounded, and has not raised the hue and cry, and has 
 not charged any with the felony, and shall not be able 
 to do so. 
 
 5. We will also, that the heirs of felons, begotten 
 before the felony committed, be disinherited of every 
 inheritance which may fall to them on the part of the 
 blood of the felon attainted by judgment ; and heirs 
 
 1 Bractcm (137, 137 b) mentions the two instances here given, 
 as cases of presumptive guilt, in which there is no need of proof, 
 sen per corpus seu per patriam, either by duel or jury ; and this, 
 he says, is an old established law, antique constitutio. I find no 
 mention either in Bracton or Fleta of judgment of death for 
 homicide before the coroner. Cf. Mag. Char. c. 17. The coro- 
 ner's presence was required at capital trials in courts of lords. 
 Ante, c. 2. s. 17. In the Year Book 30, 31 Ed. I, app. ii. p. 545, a 
 thief taken with the mainour is adjudged to death, by the cus- 
 tom of Yorkshire, coram quatuor villatis. Compare post c. 16. 
 
 8.1.
 
 32 BRITTON. [I, *15 1. 
 
 begotten after the felony committed, shall be excluded 
 from all manner of succession to the inheritance, as 
 well on the part of the mother as on the part of the 
 father ; the wives also of felons shall not hold in dower 
 any tenement assigned them by such husbands. 
 
 CHAPTER VII. 
 Of Murder. 
 
 Murder is the felonious killing of a person unknown, 
 whereof it cannot be known by whom it was done. 
 And our will is, that for every murder the hundred in 
 which it shall be committed be amerced, 1 and if the act 
 is found to have been done in two hundreds, let both 
 the hundreds be amerced in proportion to the extent 
 of each hundred. And it shall not be adjudged mur- 
 der, where any of kin to the deceased can be found, 
 who can prove that he was an Englishman and thus 
 make presentment of Englishery ; nor, although the 
 person killed was a foreigner, if he lived long enough 
 to accuse the felons himself ; nor where any felon shall 
 be apprehended for the fact ; nor in case of accident or 
 mischance ; nor where any man shall have taken sanc- 
 tuary for the felony ; nor in any case where the felon 
 shall be known, so that the felony may be punished 
 by outlawry or otherwise attainted ; nor where two 
 or more persons have feloniously killed each other, 
 although they be unknown or aliens. 
 
 i ' At 100s.' (Note in MS. N.).
 
 1,10.] OF ACCIDENTS. 33 
 
 CHAPTEK VIII. 
 
 Of Accidents. 
 
 An accident is that which occasions the death of a 
 man without felony, as where people die suddenly by 
 any sickness, or fall into the fire or into the water, and 
 there lie until they are quite dead. A mischance is 
 where a man is killed by a fall from a tree, ship, boat, 
 cart, horse, or mill, or in the like cases, where no felony 
 is committed, and in which there is no need of raising 
 the hue and cry, or making any presentment by the 
 kindred of the deceased or by the tow r nship at the next 
 county court, but the coroner's inquest is sufficient. 
 In such mischances, the things which caused the 
 death shall be adjudged to us as deodands, as is men- 
 tioned before in the chapter concerning the office of 
 coroner. And where a man is felon of himself, his 
 chattels shall be adjudged ours, as the chattels of 
 a felon, but his inheritance shall descend entire to 
 his heirs. 
 3
 
 34 BKITTOK [I, *16 I. 
 
 CHAPTEE IX. 
 
 Of Treasons. 
 
 1. Treason consists of any mischief, which a man 
 knowingly does, or procures to be done, to one to whom 
 he pretends to be a friend. And treasons may be 
 either great or little, of which some require judgment 
 of death, some loss of limb, pillory, or imprisonment, 
 and others lighter punishment, according to the nature 
 of the case. 
 
 2. Great or high treason is to compass our death or 
 to disinherit us of our kingdom, or to falsify our seal, 
 or to counterfeit our coin, or to clip it. A person may 
 likewise commit great treason against others in several 
 ways, as by procuring the death of any one who 
 trusts him ; as for instance those who poison their 
 lords or others, and those who lead persons into such 
 perils, that they lose life and member or chattels. 
 
 3. The judgment in high treason is to be drawn and 
 to suffer death for the felony. The same judgment is 
 incurred by those, who in appeals of felony are attainted 
 of having counterfeited or otherwise falsified the seal 
 of their lord, of whose dependence or homage they 
 are, or of adultery with the wives of their lords, or of 
 violation of the daughters of their lords or the nurses of 
 their children. And if a woman be attainted of any 
 treason, let her be burnt.
 
 I, *16 b.] OF ARSONS, 35 
 
 4. Where persons are attainted of crimes of this 
 nature at our suit, let them be sentenced for falsifying 
 a seal, if the act be of small consequence, to judgment 
 of pillory only, or to lose an ear ; but if the act be of 
 importance and heinous, as touching disherison or 
 lasting damage, they shall then be judged to death. 
 And of the other offence let Holy Church have correc- 
 tion. 
 
 CHAPTER X. 
 Of Arsons. 
 
 Let inquiry also be made of those who feloniously 
 in time of peace have burnt others' corn or houses, and 
 those who are attainted thereof shall be burnt, 1 so that 
 they may be punished in like manner as they have 
 offended. The same sentence shall be passed upon 
 sorcerers, sorceresses, renegades, sodomites, and heretics 
 publicly convicted. 2 
 
 1 As to this punishment for arson by burning, which is not 
 mentioned in Bracton or Fleta, see a record of 5 Hen. III. cited 
 by Sir Samuel Clarke in his edition of the first book of Fleta, c. 
 18. p. 36 n. (d), and by Mr. Kelham in his notes on the first book 
 of Britton, p. 40. 
 
 2 It seems that as to these offences, though the king's court was 
 in general ancillary to the ecclesiastical tribunal, it sometimes 
 acted independently. ' Burners of corn and houses, wives guilty 
 of treason against their husbands, sorcerers, sodomites, renegates, 
 and misbelievers, run in a leash (currunt en une leesse) as to 
 their sentence of being burned. But the inquirers of Holy
 
 36 BBITTOK [I, *17. 
 
 CHAPTEE XI. 
 
 Of Burglars. 
 
 Let inquiry also be made of burglars. Such we hold 
 to be all those who feloniously in time of peace break 
 churches, or the houses of others, or the walls or gates 
 of our cities or boroughs. Infants under age, and 
 poor people, who through hunger enter the house for 
 victuals under the value of twelve pence, are excepted ; 
 as are also idiots and madmen, and others, who are 
 incapable of felony ; and those, who enter into any 
 tenement of seisin in respect of some right which they 
 think they have, are not held to be burglars. The 
 punishment of such felons is death. 
 
 CHAPTER XII. 
 
 Of Prisoners. 
 
 1. Let inquiry also be made of those who have bro- 
 ken our prison ; for to escape from the prison of an- 
 other is no felony. We will that a prison be accounted 
 
 Church shall make their inquests of sorcerers, sodomites, rene- 
 gates, and misbelievers ; and if they find any such, they shall 
 deliver him to the king's court to be put to death. Nevertheless, 
 if the king by inquest find any persons guilty of such horrible 
 sin. he may put them to death, as a good marshall of Christen- 
 dom (come bon Mareschal de la Chrestienete).' (Note in MS. N.)
 
 I, *17 &] OF PRISONERS. 37 
 
 a place limited by us within certain bounds for the 
 keeping of the bodies of men, which bounds we forbid 
 on pain of death any one to pass with a felonious in- 
 tent of escaping ; and if any one having such intent is 
 taken, and is attainted of compassing that felonious 
 intent, let him receive judgment of death., 1 
 
 2. If the prisoner was in the custody of any one 
 claiming the wardenship in fee, let the franchise be 
 seized into our hands. And if the prisoner, who made 
 his escape, has escaped from the custody of any one 
 of our officers, let that officer be amerced at 100s. in 
 the eyre of the Justices. And if he who thus escaped 
 was an approver, let the warden be ransomed at our 
 will. If any prisoner escape from the custody of a 
 township, let the township be in our mercy in the eyre 
 of the Justices, according to the custom of the coun- 
 try ; and if from the custody of a private person, let 
 such person be amerced; and if any gaoler be suspect- 
 ed of having consented to the escape, let him be taken 
 and indicted for consenting to the felony ; and if 
 he be found guilty of consenting, let him have judg- 
 ment of death. 
 
 3. As to prisoners, we will that none be put in irons 
 but such as have been apprehended for felony, or 
 are imprisoned for trespasses committed in parks or 
 
 1 This passage may serve to assist in ascertaining the age of 
 the present book. By theStat. de frangent ibus prisonam (23 Ed. 
 I.) it was enacted that none should undergo sentence of life or 
 limb for breaking of prison only. See Introduction by the 
 Editor.
 
 38 BRITTON. [I, *18. 
 
 vivaries, or detained for arrears of accounts ; and we 
 forbid their being put to any pain or torture other- 
 wise than by law they ought, 1 or that any person be 
 disseised, while in prison, of anything- which shall be- 
 long to him. Their lands and goods shall be seized 
 into our hand, but without ousting anything; the 
 prisoners and their families shall be supported out of 
 their own goods as long as they remain in prison, and 
 none of their bailiffs shall be removed, nor others put 
 in. And when they have lawfully acquitted them- 
 selves, all that was theirs shall be delivered back to 
 them ; and if anything belonging to them shall in the 
 mean time have been removed, we will in such case af- 
 ford our especial aid to recover it and to punish the 
 offenders. But if judgment of death pass upon them, 
 we will that then, and not before, our officers put out 
 their wives and their bailiffs, and cause their chattels 
 and lands to be seized into our hand, and that their 
 movable goods be appraised by inquest of office of the 
 coroner, and delivered to the townships, who shall be 
 answerable to us in the eyre of the Justices. 
 
 4. If any person die in prison, our pleasure is, that 
 the coroner go and view the body and take a true in- 
 quest of his death, in what way it has happened. 
 And if the inquest find that his death was hastened by 
 
 1 ' Note, that for a felon slain in prison judgment of homicide 
 shall be given. For, though he was lawfully condemnable for 
 the felony, yet it is necessary that it pass by judgment. For we 
 ought not to hold them absolutely felons until the law has con- 
 demned them.' (Note in MS. N.)
 
 I *18 &.] OF PRISONERS. 39 
 
 the harsh keeping of his gaolers, or by pain unlawfully 
 inflicted on him, then let the body be buried, and let 
 all those, who are indicted as being the cause of his 
 death, be immediately apprehended and detained as 
 felons homicides. 
 
 5. And we will, that in time pleadable our gaols be 
 delivered once in every week of all prisoners deliver- 
 able, such being excepted as are not to be delivered 
 without our special command. 
 
 6. Prisoners shall in general be answerable to 
 such as shall implead them as long they remain in 
 prison ; others shall likewise be answerable to them ; 
 and essoins shall be allowed to them, as Avell as to 
 others, neither shall they lose anything by any de- 
 fault. But prisoners apprehended for felony we will 
 by no means suffer to implead or be impleaded by any 
 one, unless for some greater felony, so that a greater 
 felony be not stifled or covered by a less. But our 
 will is, that such prisoners may allege as an exception 
 in every lesser plea whereof they shall be impleaded, 
 not being the cause for which they have been appre- 
 hended, whether the plea be moved against them before 
 their apprehension or after, that they are not bound 
 to answer such pleas, until they are acquitted of the 
 greater cause for which they are detained. 
 
 7. We forbid any one to take money, or the value 
 thereof, for receiving prisoners, or to delay receiving 
 them, or to take for the keeping any prisoner more 
 than four pence, on pain of ransom and fine. Of 
 the poor let nothing be taken, and let no prisoner
 
 40 BKITTON. [I, *19. 
 
 be longer detained for default in payment of such 
 fees. 
 
 *8. And we will, that whatever contracts shall be 
 made in prison by prisoners not taken or detained for 
 felony shall be held valid, unless made under such dis- 
 tress as includes fear of death or torture of body ; and 
 in such case they shall reclaim their deed, as soon as 
 they are at liberty, and signify the fear they were 
 under to the nearest neighbours and to the coroner ; 
 and if they do not reclaim such deeds by plaint within 
 the year and day, the deeds shall be valid. 
 
 9. Those who claim the custody of any prison in fee 
 shall not detain a prover, who has confessed himself to 
 be a felon and appealed others of the felony, beyond 
 a day and a night, but shall send him forthwith to our 
 prison which is in our own hand, on peril of forfeiting 
 the said custody ; and no other person shall keep in 
 prison any one apprehended for felony beyond a day 
 and a night, but shall send him forthwith to our prison 1 
 on pain of ransom. And therefore with respect to this 
 article, let it be inquired, who has imprisoned another 
 or detained him wrongfully in his custody, or in our 
 prison maliciously and wrongfully under colour of 
 
 1 This rule was subject to an exception, where there was a 
 franchise of Infangthef or Utfangthef ; for the lord might keep 
 those in his prison whom he could judge in his court. Brae. 
 1226, 123. The abbot of Peterborough in the parliament of 3 
 Ed. I. established his right to keep in his own prison twenty- 
 nine prisoners of his liberty appealed of homicide in the county- 
 court of Northampton. Chron. Petroburg. p. 21.
 
 T, *19 I.] OF OUTLAWS. 41 
 
 judgment; and let such as shall be convicted thereof 
 be punished by imprisonment and by ransom, which 
 shall be greater or less in proportion to the offence. 
 
 *CHAPTER XIII. 
 
 Of Outlaws. 
 
 1. In the next place, let inquiry be made of felons 
 outlawed, and of such as have abjured the realm for 
 felony, who have returned without our leave ; and of 
 those who knowingly receive them. And because it 
 is needful that every one should know the danger of 
 receiving such persons, our will is, that all who are of 
 the age of fourteen years 1 or upwards shall take an 
 oath to us, that they will be faithful and loyal to us, and 
 will neither be felons nor assenting to felons ; and 
 that every one be in some tithing and pledged by their 
 tithingmen, except persons in religion, clerks, knights 
 and their eldest sons, and women ; and let the obli- 
 
 1 Bracton (124b) and Fleta (p. 40) mention the age of twelve 
 years as the time of taking the oath ; and this is in some degree 
 confirmed by the terms of the Stat. Marl. c. 25. The Mirror, 
 however, as printed (p. 13, 283), agrees with our author in fixing 
 the time at fourteen years. Coke (2 Inst. 121, 147) cites both 
 Britton and the Mirror as naming the age of twelve, and says, 
 that where old books mention sometimes fourteen years, it is but 
 misprinted. The mistake, however, if it be one, appears to run 
 through all the manuscripts. Compare Brae. 115 6, where the 
 age of fifteen is mentioned as the time for persons of higher 
 station to take a similar oath.
 
 42 BRITTON. [I, *20. 
 
 gation of the pledge be this, that if they do not pro- 
 duce those for whom they are pledged, to be amenable 
 to justice in our Court when required, the tithingmen 
 with the tithings shall be in our mercy. With regard 
 to clerks, knights, persons of religion, and women, our 
 pleasure is that the head of every household be answer- 
 able for all his chief domestics, and that they answer 
 for those under them. As to guests, we will that every 
 one answer for his guest that he shall have harboured for 
 more than two nights together, so that the first night 
 he shall be deemed a stranger and uncouth, 1 the second 
 night a guest, and the third night a hoghenhine. 2 
 
 2. And for the maintaining of peace, we will that 
 when a felony is committed, every one be ready to pur- 
 sue and arrest *the felons, according to our Statutes of 
 Winchester, with the company of horns and voices 
 from township to township, until they are either taken 
 or have been pursued as far as the chief town of the 
 county or franchise. We will also, that every one who 
 flies from our peace forfeit his chattels to us for such 
 flight, if he be suspected of felony, although he be 
 afterwards acquitted of the principal fact. And if it 
 be murder or other felony concerning the death of a 
 man, let such felony be presented at the next county 
 court by one or more townships, and by the first finder 
 and the kindred of the person killed, that is to say, by 
 one or more of kin on the part of the father, or on the 
 
 1 Anglo-Saxon, uncuu, unknown. 
 
 2 Anglo-Saxon, agen hina, his own hind or domestic.
 
 I *20 &.] OF OUTLAWS. 43 
 
 part of the mother, according to the custom of the 
 county. 
 
 3. If one or more be appealed of the death, and 
 others of the force and accessory facts, let the princi- 
 pals be first demanded at three county courts to come 
 and answer concerning the felony, and if they do not 
 come at the fourth court, and are not mainprised 
 to appear at the fifth, they shall be outlawed at the 
 fourth. 1 A woman however cannot properly be out- 
 lawed because she is not appointed to any tithing or 
 to the law, but she may be waived, Avhich is equivalent 
 to outlawry. 
 
 4. As to the punishment of outlaws in their lifetime 
 for their felonies, their judgment shall be this, that, since 
 they will not be amenable to the law, they be fore- 
 judged from all law, and put out of our peace, and be 
 answerable to all, and none to them, and be judged 
 felons, as shall also all those who knowingly receive 
 them or bear them company after their outlawry ; 
 and he who shall kill them shall be acquitted of their 
 death, except in cases where they shall offer to sur- 
 render themselves or where they might have been 
 otherwise taken; neither in appeals shall they be 
 heard against any man ; and if they are taken, and found 
 
 1 The practice has been to proclaim a fugitive at five county 
 courts, so that he is not adjudged an outlaw until the fifth ; and 
 Bracton agrees with this practice. He says, however, that the 
 proceeding at the first court is merely a calling of the fugitive, 
 and is not part of the outlawry, and therefore the fifth court is 
 x.-alled the fourth. Brae. 125 6.
 
 44 BR1TTON. [I, *21. 
 
 to be outlawed by record of the roll of the coroner, they 
 shall be hanged, and their chattels shall be ours, and 
 their heirs disinherited of every kind of inheritance. 
 
 CHAPTER XIV. 
 
 Of Inlawry, or being restored to law. 
 
 1. Inlawry in many cases ought to be granted of 
 right, and in others it ma} 7 be of favour; and, where 
 of favour, the outlaws ought always to carry about 
 them our charter, containing the release of the out- 
 lawry before pronounced against them, that they may 
 not fail to be protected by us, when they shall have 
 occasion. But if they have been legally and deservedly 
 outlawed, such release will not avail them to recover 
 any of the lands or chattels which were theirs before 
 the outlawry pronounced against them, or to demand 
 any inheritance or debts, or any manner of remedy for 
 an injury which they shall before have suffered. 
 
 2. Inlawry ought of right to be granted in these 
 cases, namely, where a man has been outlawed before 
 the fourth county court, or without suit and without 
 command of the Justices Itinerant after their eyre 
 ended, or without our writ, or where there was not a 
 regular succession of county courts, or if the outlawry 
 was not in the county court, or not in the presence of 
 the coroner; or if the outlaw at the time of pro- 
 nouncing the outlawry, was under the age of fourteen
 
 I *21 I.] OF INLAWRY. 45 
 
 years, 1 or out of bis right mind, or deaf, or an idiot, or 
 out of our realm, or detained in prison ; or if the cause 
 of outlawry be found null, as if the man who was sup- 
 posed to have been killed be still alive, or if the outlawry 
 was pronounced in any other county than where the 
 felony was committed, or if the outlaw was then in our 
 service in war or castle, or if it be found that the 
 occasion of the outlawry was not felony. 
 
 3. In these and other like cases, if the outlaws 
 return and surrender themselves to our prison, and 
 acquit themselves of the principal fact, the Justices 
 shall certify us thereof ; and we will immediately, as 
 of right, command by our writs the sheriff of that 
 county and the counties adjoining, that they cause the 
 peace of such outlaws to be proclaimed in cities and 
 in boroughs, in fairs and in markets, and cause it to be 
 solemnly declared that the cause of the outlawry is 
 found to be false, and that the outlaws be restored to 
 their lands and inheritances, saving to us their chattels, 
 if they shall have given occasion of suspicion by flight. 
 
 4. We will that those who by malicious contrivance 
 sue any man to an outlawry in any other county than 
 where the principal fact was committed, and are con- 
 victed thereof, shall be banished our realm for their 
 malice. 
 
 5. And although a person be rightfully and deserv- 
 edly outlawed, yet it may appear that he was dead 
 before the outlawry pronounced against him ; in which 
 
 1 See note to chap. xiii. s. 1. ante, p. 48.
 
 46 BRITTON. . [I, *22. 
 
 case liis heirs shall enjoy their inheritance, because the 
 ancestor did not live to have judgment passed upon him. 
 
 6. If it be found that an outlawry was pronounced 
 before the third county court, or that the proceedings 
 in the county court were in any other manner 
 erroneous, let the county be adjudged in our mercy ; 
 and if it be found that the outlawry was pronounced 
 in the absence of the coroner, and that the coroner 
 was in fault, let the coroner be punished by imprison- 
 ment and fine. The like of abjurations made in his 
 absence, although he send his rolls by his clerk or 
 other person not properly authorised. 
 
 7. As to lands and tenements aliened by felons at- 
 tainted after commission of their felonies, we will, 
 that such alienations be voidable by the chief lords of 
 the fees by means of our writs of escheat. 
 
 CHAPTER XV. 
 Of Rape. 
 
 Rape is a felony committed by a man by violence on 
 the body of a woman, whether she be a virgin or not. 
 Of such felonies let inquiry be made ; and whoever is 
 attainted thereof, either at the suit of the woman by 
 appeal of felony, or at our suit, shall have the same 
 judgment as for the death of a man, whether the 
 woman have consented after commission of the 
 felony or not, as is contained in our Statutes of West- 
 minster.
 
 I, *22.] OF LARCENIES. 
 
 CHAPTER XVI. 
 
 Of Larcenies. 
 
 1. Let careful inquiry also be made concerning 
 robbers, 1 thieves, and such like offenders ; as to whom 
 our will is, that if those who rob, or steal the goods 
 of another, amounting to twelvepence or more, 2 be 
 
 1 ' A robber is lie who by force in the day or night despoils an- 
 other of his goods. A thief is he who carries off or steals an- 
 other's goods in the absence of the owner, or in his presence but 
 without his knowledge.' (Note in MS. N.) 
 
 2 In the time of Edward I. the price of a cow varied from 5s. to 
 12s., the price of a sheep from 8d. to 3s. Wheat varied from 2s. 
 to 16s. the quarter, and in times of scarcity rose much higher. 
 See Fleet wood's Chronicon Preciosum ; and see the provisions as 
 to the assize of bread below, in c. xxxi. Bracton says that steal- 
 ing a pig is a petty theft (Brae. 105) ; and we shall see below, in 
 s. 7. p. 61, that stealing a sheaf of corn is so treated. The com- 
 mentator in MS. N. states that three halfpence (iii mailles) a day 
 was a poor living for a man, and gives the following singular 
 reason for 12d. being fixed as the limit of petty larceny. ' At 
 three halfpence a day, 12(1. would be eight days' wages ; and a* 
 a man going without sustenance for eight days might be ex- 
 pected to die on the ninth, the 12d. has regard to the destruction 
 of life, for which offence a man is rightfully put to death.' The 
 same note asserts, that ' in France and many other countries 
 beyond sea, thieves are put to death for less than in England, as 
 for the value of sixpence or one penny.' By the Anglo-Saxon 
 laws no mercv was to be shown to a thief of above the value of
 
 48 BRITTOK [T, *22 b. 
 
 freshly pursued for the same by the owners, or by 
 those out of whose custody the things were stolen or 
 robbed, and the goods are found upon them, they 
 shall be forthwith taken and brought to trial in the 
 court of the lord of the fee, if he has the franchise of 
 infangthief, or in our court in the hundred, or county, 
 or elsewhere ; and the coroner shall be fetched forth- 
 with, and in his presence the sakeber 1 shall be heard 
 in his own person, and if he claims the goods as stolen 
 or robbed and there are lawful people as witnesses to 
 prove it, such robbers shall be immediately adjudged 
 to death. 
 
 8d. (Leg. Atheist, i. 1. Leg. Hen. I. lix. 20.) But by another 
 law of Athelstan the sum is fixed at 12d. (Leg. Ath. v. 1.) 
 Spelman points out the increased severity of the law arising from 
 the change in the value of money. In quantam asperitatem ex 
 rerum temporumque vicissitudine lex antiqua abripitur. Quod 
 enim olim 12d. venit, hodie saepe 20s., imo 40, vel pluris est. 
 Nee vita hominis interea carior sed abjectior. (Spelm. Gloss, s. 
 v. Laricinium.) 
 
 1 ' Sakbere is he from whom the chattels are stolen, and is so 
 called from sak (English) which is enchesun in French, and bere 
 which is porteur in French : as being he who bears the cause to 
 go to the deliverance of the thief.' (Note in MS. N.) Compare 
 Spelman, Gloss, s. v. Sacaburth, Sacaber ; Thorpe's Glossary to 
 ancient English laws, s. v. Sagemannus. The former part of the 
 word appears to be the A. S. Sacu, Germ Sache, a cause or mat- 
 ter of contention, whence the legal term sak for jurisdiction. 
 The latter part of the word is variously derived from the A. S. 
 beran. to carry, the A. S. borh, a pledge or security, and the old 
 Teutonic Bar (A. S. war) a man, whence the French and Eng- 
 lish Baron.
 
 I, *23.] OF LARCENIES. 40 
 
 2. If they are not taken freshly l upon the fact, 
 although the goods are found upon them, they shall 
 be permitted to answer, and then they may demand in 
 what manner the plaintiff intends to proceed against 
 them, and if he answer, 'by words of felony,' then 
 the thief shall be either sent to our gaol or let to main- 
 prise until the next county court or until the next 
 gaol delivery, and there the plaintiff shall make his 
 suit by words of appeal, as will be explained below 
 in treating of appeals. And if the fact was com- 
 mitted out of the lord's jurisdiction, or if the lord 
 has not suitors sufficient to take the inquest, then 
 such felons shall be forthwith sent to our county 
 gaol. The sakeber, if he pleases, may bring an ac- 
 tion for his goods, as lost ; and then he shall not sue 
 judgment of felony, but of trespass only ; but when 
 the sakeber has begun his suit in the form of felony, if 
 he does not prosecute it, we may ourselves proceed to 
 conviction of the felony 
 
 3. If the accused has any warrant within our realm, 
 then he may defend himself by voucher ; and if he 
 vouches to warrant any person who gave him the 
 thing, or sold it, or otherwise made it over to him, let 
 a day be given him to produce his warrant, if he be 
 not then present ; and if he cannot produce him, let 
 him be compelled to appear by the aid of our 
 Court ; at which day if he fails to produce his warrant 
 whom he has vouched, where he vouches him at his 
 
 1 The commentator in MS. N. explains the word freschement as 
 denoting that the sakeber must make his suit the same day. 
 4
 
 50 BRITTON. [I, *23 I. 
 
 own peril and without aid of our Court, be shall be- 
 obliged to give some other answer, or be put to his 
 penance, and the goods shall be delivered to the person 
 who claims them. And when a person is vouched to 
 warranty by aid of our Court, the sheriff, in whose 
 bailiwick the warrant is expected to be found, shall be 
 commanded to have his body at such a place on 
 a certain day, either to undertake the warranty or to 
 refuse it. If the sheriff returns that no such person is 
 known in his bailiwick, the voucher shall be driven to 
 his answer in chief, or to his penance if he refuse to 
 answer ; and if the sheriff returns that the vouchee is 
 not found, then let our w 7 rit issue to the same sheriff, 
 to cause him to be demanded from county court to 
 county court until he either appear or be outlawed. 
 
 4. If the vouchee comes and enters into the warrant 
 to defend the voucher in the possession of the thing, 
 let the plea against the principal be suspended, and one 
 commenced against the warrant. And if the warrant 
 makes good his case, then let both the voucher and his 
 warrant be acquitted, and the plaintiff be adjudged to 
 prison for the reason which shall be given in the chapter 
 of appeals. If judgment be given against the warrant, 
 then the thing challenged shall be adjudged to the 
 plaintiff, and the principal shall be indicted of the felony 
 at our suit, upon presumption of his being an accomplice 
 of the warrant, who is attainted of the felony. 
 
 5. If the principal has no one to vouch, he may say 
 that he bought the thing challenged in such a year and 
 on such a day, at such a fair or at such a market, in
 
 I, *24.] OF LARCENIES. 51 
 
 the presence of a great number of people, and paid a 
 toll to the bailiffs for it. And if he vouches the testi- 
 mony of the said bailiffs and others then present, and 
 evidence is given accordingly, or if he puts himself on 
 the country and is acquitted of the felony, and yet the 
 prosecutor has proved that the thing challenged be- 
 longed to him, and that it was stolen from him or out 
 of his custody, in such case he must be answerable to 
 the owner, and make him satisfaction, and the judgment 
 shall be, that the claimant recover the thing demanded, 
 and that the person challenged go quit, and lose what 
 what he gave for the thing ; and if he can produce no 
 such witnesses, let him acquit himself by the country. 
 6. If any one be indicted by presentment of robbery, 
 or of larceny, or of cutting of purses, or of receiving of 
 felons, or of enchantment, as those who send people to 
 sleep, 1 or of cheating by selling bad things for good, as 
 pewter for silver, or latten for gold, or of other petty 
 offences of the like nature, our will is that such be 
 apprehended ; or, if they cannot be found, they shall 
 be demanded, and their lands and chattels be seized 
 into our hands ; and if, when they are tried, they can- 
 not acquit themselves of the felony, whether at our 
 suit or another's, let them be condemned to be hanged, 
 
 1 This seems to give some support to the conjecture, that the 
 experiments of mesmerism and animal magnetism, which have 
 created so much interest in our times, were not unknown in the 
 13th century. Endormeurs de genz are mentioned as offenders 
 in the Consuet. S. Genov. f. 34. MS. cited in Ducange, Gloss, s. v. 
 Dormitabilis. It is possible however that the effect may have 
 been produced by drugs.
 
 52 BK1TTON. [I, *24 1. 
 
 or to lose an ear, or to the pillory, according to the 
 greatness of their crime, and according as they have 
 been habitual offenders or not. 
 
 7. In small thefts, as of sheaves of corn in harvest, or 
 of pigeons or poultry, let the judgment be this, that if 
 the thieves are not found to be otherwise of bad char- 
 acter, and the thing stolen is under the value of twelve 
 pence, they shall be put in the pillory for an hour in the 
 day, and be not admissible to make oath on any jury 
 or inquest, or as witnesses ; and the like as to all those 
 who have been sentenced to undergo such punishments 
 or the punishment of the tumbrel, or to lose a limb. 
 And if these petty thieves are persons of bad character, 
 or if they have offended out of mere wickedness, and 
 not through want, then their sentence shall be to lose 
 an ear, and be rendered infamous for ever, as above 
 mentioned; and if they be found guilty of a second 
 offence, then it shall be in the discretion of the Justices, 
 either to judge them to death or order their other ear 
 to be cut off ; and if they are convicted a third time, 
 whether it be fora great or a small crime, and whether 
 at our suit or another's, let them receive sentence of 
 death. 
 
 8. As to cutpurses, if they have not been guilty of 
 any other offence, let them be sentenced to the pillory 
 for the cutting of the purse ; and if there be anything 
 else stolen by the prisoner under twelve pence or of 
 that value, he shall lose one of his ears, and if the thing 
 exceed the value of twelve pence, then judgment of 
 death shall be passed upon him.
 
 I, *25.] OF ABJURATIONS. 53 
 
 CHAPTER XVII. 
 Of Abjurations. 
 
 1. Concerning those who fly to churches for their 
 crimes, our will is, that the coroner of the place go to 
 them to inquire wherefore they have taken sanctuary, 
 and hear their confessions ; and if they will neither 
 confess felony nor come out of church to be amenable 
 to justice, they shall forfeit their chattels on account 
 of their flight, and the coroner shall immediately cause 
 their lands and their chattels to be seized into our 
 hand, and their chattels to be valued and delivered to 
 the township. The admission which they shall make 
 that they are not willing to appear to answer to our 
 peace, shall be entered in the roll, to the intent that 
 they may never be under our peace, until they are ac- 
 quitted in our Court of the crimes wherewith they shall 
 be charged ; the coroner however is not obliged to go, 
 unless he pleases, notwithstanding the fugitive is desir- 
 ous of confessing felony and praying the favour of 
 abjuration. 
 
 2. If the fugitives abide in sanctuary above forty 
 days from the time of the coroner's first going to them, 1 
 the whole county shall be charged with their custody, 
 
 1 Other authorities seem rather to show that the forty days 
 were to be reckoned from the arrival in the church. See Brae. 
 136 ; Fie. 45, and compare Stat. 32 Hen. VIII. c. 12.
 
 5-fc BRITTON. [I, *25 b. 
 
 and they accounted as felons or as persons out of our 
 peace. And if they confess felony and pray to abjure 
 our realm, and beg the protection of the church until 
 they have provided for and settled their departure, then 
 our pleasure is, that they have such protection for forty 
 days from the day of the coroner's coming to them ; 
 and forthwith after the enrollment of their confession, 
 let them be given in charge to the constables of the 
 townships, that they may not in the meantime be 
 allowed to escape out of sanctuan^. 
 
 3. Let the abjuration be made at the gate or fence * 
 of the churchyard, in this manner. Hear this, you 
 coroner and other good people, that I for such an act 
 which I feloniously did, or assented to the doing there- 
 of, will depart from the realm of England, (or the 
 land of Ireland,) and will never return thereto unless 
 by leave of the king of England or his heirs, so help me 
 God and the Saints. 
 
 4. Immediately after they shall choose for them- 
 selves 2 some seaport, or passage into Scotland out of the 
 realm, as far as which port or passage we admit them 
 to our protection, provided they are not guilty of 
 fraud. And then let them be forbidden on peril of life 
 
 1 Qu. Steps. See Ducange Gloss, s. v. Scalarium ; Roquefort 
 Gloss, s. v. Eschallier. 
 
 2 There is a note in the Year Book of 30 Ed. I. that he who 
 wishes to abjure the realm shall take the port assigned him by 
 the Coroner and no other. (Year Book 30 and 31 Ed. I. App. i. 
 p. 509.) See also the Statutes of Wales (12 Ed. I.) c. 5. Brae- 
 ton and Fleta agree with the text.
 
 T, *26.] OF ABJURATIONS. 55 
 
 and limb to turn aside anywhere out of the high road, 
 until they have left the kingdom, or country, at that 
 port or passage which they have chosen, and no other, 
 with all possible dispatch and without fraud. Let 
 them then go \vith a wooden cross in their hands, bare- 
 footed, ungirded, and bareheaded, in their coat only. 
 And we forbid any one under peril of life and limb to 
 kill them so long as they are on their road pursuing 
 their journey ; nor shall they, or any other fugitives, 
 be killed, if they can be taken in any other manner. 
 
 5. If such fugitives abide in sanctuary forty days 
 after the coroner's coming to them, they shall be de- 
 barred thereafter from the favour of abjuration, and 
 deemed as felons convict, so as to have no right of ac- 
 cusing or appealing any others ; and we forbid all 
 laymen under forfeiture of life and limb, and clerks 
 under pain of banishment from our kingdom during 
 our pleasure, to give them any meat or drink after the 
 said forty days, or to have any manner of communica- 
 tion with them. 
 
 6. We will and grant, that whenever any one has 
 abjured our realm through fear, and it can be after- 
 Avards proved that he was not guilty of the felony 
 which he confessed, he may safely return, saving to 
 every one his suit ; and in such cases the heirs of the 
 fugitives shall not be disinherited, but their chattels 
 shall notwithstanding be forfeited by reason of their 
 flight. 
 
 7. And our will is, that all abjurations taken by any 
 one, who shall have meddled with the office of coroner
 
 56 BKITTOK [I, *2G I. 
 
 without being authorized thereto by us or our prede- 
 cessors, shall be held void and may be disavowed and 
 annulled ; the like, if the coroner, though authorized, 
 he did not attend in his own person. 
 
 8. In abjurations made on account of our game, or 
 other trespasses, let none be disinherited of his lands 
 or tenements, but forfeit his chattels only. 
 
 CHAPTER XVIII. 
 
 Of Treasure-trove, Wrecks, Waifs, and JZstrays. 
 
 1. Concerning treasures found concealed in the earth, 
 and concerning wrecks and waifs belonging to us, and 
 sturgeons and whales, and other things found, which 
 of right belong to and are detained from us, let careful 
 inquiry be made, and of the names of those who found 
 them, and to whose hands they have come, and to what 
 amount. For treasure hid in the earth and found shall 
 belong to us, but if found in the sea, it shall belong to 
 the finder ; and any person who shall find such treasure 
 in the earth shall forthwith inform the coroner of the 
 district or the bailiffs thereof ; and the coroner shall 
 go without delay and inquire, whether any of it has 
 been carried off, and by whom, and save all that can 
 be found for our use ; and those who carried it off shall 
 be held to mainprise until the eyre of the Justices ; 
 and if our Justices can convict the eloiners of malice, 
 they shall be punished by imprisonment and fine, but 
 if malice be not found, they shall be punished by amerce- 
 ment only.
 
 I, *27.] OF TKEASUKE-TKOVE. 57 
 
 2. As to things lost and found above ground, if the 
 owner demand them within the year and day, and can 
 prove them to be his property, they shall be delivered 
 to him ; so likewise to him who lost the things, pro- 
 vided he can prove the loss ; and if the things are not 
 claimed within the year and day, and the finder has 
 caused them to be cried and published in the neighbour- 
 ing markets and churches, then the finder may keep 
 them. 
 
 3. Waifs or estrays, not challenged within the year 
 and day, shall belong to the lord of the franchise, if he 
 be rightfully seised of such franchise ; but if the lord 
 did not cause the beast so found to be publicly cried in 
 manner aforesaid, then no time shall run against the 
 owner of the thing or beast, to bar him from replevy- 
 ing it whenever he pleases ; and if the lord avow it to 
 be his own, the person demanding it may either bring 
 an action to recover his beast as lost, in form of trespass, 
 or an appeal of larceny, by words of felony ; and if 
 the lord by either proceeding be found guilty of a tor- 
 tious detaining, he shall lose his franchise of estray for 
 ever after. 
 
 4. With regard to wreck of sea found, the ordinance 
 of our statutes shall be observed. Sturgeons taken 
 within our dominions shall belong to us, saving to the 
 persons who took them their reasonable costs and ex- 
 penses ; and of whales caught within our jurisdiction 
 the head shall belong to us and the tail to our consort, 
 according to ancient usage.
 
 58 BRITTON. [I, *2T b. 
 
 CHAPTER XIX. 
 
 Of the King*s Rights. 
 
 1. With respect to our seigniories, let inquiry be 
 made of cathedral, parochial, and conventual churches, 
 and of religious houses and hospitals in the county, 
 what are of our advo \vson ; and what ought to.be so, but 
 are not ; and who has deprived us of them, and how ; 
 also what demesnes in the same county we hold in our 
 hands, and what demesnes we and others hold of the 
 ancient demesnes of our crown, and what by escheat 
 and by purchase, and who hold such lands besides our- 
 selves, and what the lands are severally worth accord- 
 ing to their true value ; and of demesnes which ought 
 to be ours and are not, how they have been aliened, and 
 by whom, and who hold them. So likewise of seign- 
 iories and advowsons of churches. 
 
 2. Also of hundreds, which ought to be held of us in 
 chief and are not, inquiry must be made how they have 
 been aliened, and by whom, and who now hold them, 
 and from what time, and what is their true value by 
 the year ; likewise of the true value of the county, and 
 how much rent the sheriff pays us a year, and how 
 many of the hundreds are in our hands, and what each 
 hundred is worth, and how much the bailiffs annually 
 pay to us or any other for them. 
 
 3. Inquiry must also be made of customs and serv-
 
 J, *28.] OF THE KING'S RIGHTS. 59 
 
 ices due to us, whether they have been withheld, and 
 by whom, and how long. The like with respect to 
 suits due at our county court, our hundreds, and our 
 manors, and at the tourns of our sheriff, and our views 
 of frankpledge, and at our mills, whether they have 
 been fully performed ; and if not, how they have been 
 withheld, and from what time, and by whom ; and so 
 of all services which of right are due to us. 
 
 4. Inquiry shall also be made concerning escheats, 
 which ought to fall to us by the felony of felons, or by 
 the death of our tenants without heirs, or by any kind 
 of reversion ; and concerning the lands of Normans, 
 and of felons who held of us in chief, which have been 
 aliened after the commission of their felonies, and 
 ought to be our escheats, who hold them, and from 
 what time, and how much a year they are worth with 
 their whole profits at the true value ; the like as to 
 lands and tenements held of other lords, and aliened 
 by felons after the commission of their felony, without 
 compounding with us for the year and waste. 
 
 5. Also concerning earldoms, baronies, knights' fees, 
 grand and petty serjeanties, dismembered without 
 our leave, inquiry must be made how they are held, and 
 who hold them, and of whom, whether of us in chief, 
 or by mesne. Also whether there be anything in 
 arrear to us for any service or profit which of right 
 belongs to us ; and whether we have fully had the 
 wardships, marriages, homages, reliefs, and heriots, 
 wherever we ought to have them of right, and if not, 
 by whom they have been withheld from us, and how
 
 60 BRITTON. [I, *28 ft. 
 
 Jong, and what is their yearly value ; so of all children, 
 male and female, and widows, whose marriages be- 
 long to us, and who have been married without our 
 leave, how often and to whom they have been married, 
 and ho\v much their lands are worth by the year. 
 
 6. Let inquiry also be made of all kinds of purpres- 
 tures made upon us of lands or franchises ; and those 
 who shall be presented as deforceors and purprestors 
 by fresh force since proclamation of the eyre, shall be 
 summoned to appear at a certain day to answer for the 
 wrong they have done, and the process against them 
 shall be as in a plea of land by our writs of great and 
 little Cape. 
 
 7. The deforceors also in the other articles aforesaid 
 shall be summoned. And when any of them appears 
 in court, and pleads that he found his ancestor seised 
 and can prove it, the demand made without our writ 
 shall be stayed, and those who are appointed to prose- 
 cute our right, shall immediately apply for a writ of 
 right which is called a Prmcipe quod reddat nobis 
 against the deforceor ; and if the writ be obtained for 
 anything appendant to our crown, such as our ancient 
 demesnes, let no time be limited in the count ; and if 
 the tenants desire to put themselves upon an inquest in 
 form of the great assize, let them not be admitted 
 thereto without the consent of us and our council, un- 
 less our attoreys in any such case are of opinion that 
 a verdict will pass in our favour ; for we are bound to 
 recover such rights of our crown as have been wrong- 
 fully aliened ; in which rights no man ought to aid him-
 
 I *29.] OF THE KING'S RIGHTS. (51 
 
 self by exception of long tenure, though he may by 
 vouching to warranty, and by reasonable exceptions, 
 as shall be hereafter set forth in treating of exceptions. 
 And if the writ is obtained on our behalf concerning 
 escheats or purchased lands which have been aliened, 
 or other things which are not appurtenant to our 
 crown, in such case the count ought not to go farther 
 back than in a writ of right, and prescription shall run 
 against us as well as against others. 
 
 8. Escheats deforced from us, shall be demanded by 
 writ of escheat. And as to suits withheld from us, the 
 proceeding shall be by distress, for this prerogative we 
 claim on account of the great delays which occur in 
 writs of customs and services. With respect to our 
 fees dismembered and held of us by mesne since the 
 last eyre, our will is, that they be taken into our 
 hands, and the sheriff be answerable to us for the 
 issues of them, and they shall not be restored without 
 our leave. And as to wardships and marriages detained 
 from us, we will that proceedings shall be taken im- 
 mediately without writ, and the penalty provided by 
 our statutes shall be enforced against the deforceors. 
 
 9. And we will have it known to all, that if any 
 man dies who held of us by knights' fee, or by grand 
 serjeanty, whether he held of the ancient demesnes 
 of the crown, or lands escheated, or purchased, and 
 his inheritance after his death descends among several 
 daughters as one heir, we will have the marriage of all 
 the daughters as often as they shall be to marry ; and 
 the like with regard to all widows, whose husbands
 
 62 BKITTON. [I, *30. 
 
 held of us in chief ;and if it be presented that any one, 
 whether mule or female, whose marriage belongs to us, 
 has been married without our leave, let all their lands 
 and the lands of their husbands be immediately seized 
 into our hands, and the sheriff shall answer to us for 
 the issues, and they shall not be restored to them with- 
 out our leave. 
 
 10. As to purprestures our will is, that such as are 
 nusances shall be removed at the costs of those who 
 have made them, and such as may be permitted to re- 
 main shall be taken into our hand, and the yearly 
 value thereof enrolled ; and according to the discretion 
 of the treasurers and barons of our exchequers, they 
 shall be let at fee farm to those who will give most for 
 them. 
 
 CHAPTER XX. 
 
 Of Franchises. 
 
 1. Let inquiry also be made, what persons in the 
 county claim to have return of our writs, or custody of 
 our gaol, or that the Justices in eyre shall come into 
 their franchises, or to have their own coroners, or 
 chattels of felons, or view of frankpledge, or the 
 franchise of infangthief and outfangthief and gallows, 
 or fairs, or markets, or the execution of pillory or 
 tumbrel, or to have wreck of sea, or to have pleas de 
 vetito namio pleaded in their courts, or to have lestage, 
 or amercements of their tenants, or traverse, or toll,
 
 I *30 &.] OF FRANCHISES. 63 
 
 or estray, or murage, or pontage, or cheminage, 1 or 
 warren in his demense lands or in other lands, or to be 
 quit of doing suit at our county court, or at sheriffs' 
 tourns, or at our views of f rankpledge, or to be quit of 
 lestage, murage, or pontage, or who claim any kind of 
 liberty more than other people. 
 
 2. We will therefore that the presentments upon 
 such articles shall be pleaded in this manner. First, 
 the claimants shall be ordered to appear by reasonable 
 summons, as shall be mentioned in treating of sum- 
 monses; and then if the summons be attested and they 
 make default, the franchise shall be taken into our hand, 
 the sheriff answering to us for the issues, and so re- 
 main in our hand until the claimants appear and answer. 
 And if those who make default have of their own 
 wrong usurped such franchises upon us, they shall be 
 distrained in such manner as shall be mentioned in the 
 chapter concerning attachments in trespass and debt ; 
 and when they appear in court, if they cannot clear 
 themselves of the personal wrongs committed against 
 us to our disherison, let it then be awarded, that we re- 
 cover the franchise, and that they be disinherited of 
 the value thereof, or be in our mercy. 
 
 1 Murage was a tax for the repair of town-walls ; pontage, a 
 toll taken on bridges, or for their repair ; cheminage, a toll ex- 
 acted for the use of a way through a forest ; traverse, a toll paid 
 for passing through the limits of a town or lordship ; lestage or 
 lastage, an impost in fairs and markets, calculated by the last, a 
 measure by which several kinds of solid goods were sold. See" 
 Ducange, Glossary; Comyns's Digest, s. v. Toll.
 
 (U BRITTON. [I, *31. 
 
 3. But if it be found by their answer, that their 
 ancestors died seised, then they shall not be obliged 
 to answer without our writs, unless they choose to do 
 so ; but our attorneys shall immediately cause our writs 
 of Quo warranto to be issued against them. By such 
 writs they shall first be summoned to come and answer 
 at a day certain, at which if they make default, the 
 franchises shall be taken into our hand, as aforesaid, 
 and so remain without any other summons, until we 
 shall otherwise direct ; so that they shall never be per- 
 mitted to replevy such franchise if they do not answer 
 forthwith. If in their answer they allege long posses- 
 sion, or vouch others to warrant who allege long tenure, 
 in such case judgment shall be stayed for the deter- 
 mination of us and our council, whether such answer 
 be a continuance of the wrong done to our crown, or a 
 title of right in the tenants. 
 
 CHAPTER XXL 
 
 Of various wrongs. 
 
 1. In the next place let it be inquired what persons 
 have built castles or fortlets or houses of stone, crenel- 
 lated and defensible ; and let those who have so done 
 be summoned to come and answer, and show if they 
 have any license from us or our ancestors for erecting 
 or repairing such fortlets, and if they cannot produce 
 .any such license, let them be taken into our hand, either
 
 T, *31 &.] OF VARIOUS WROXGS. 05 
 
 to be held by us or pulled down, according to our 
 pleasure. 
 
 2. Afterwards, let inquiry be made of bridges and 
 causeways, and of common highways destroyed, or 
 otherwise in bad repair, who is bound to repair and 
 amend them ; and such as are named in the presentment 
 shall be attached to appear by personal distress. A.nd 
 if it be found on their appearance in court, that any 
 of them hold tenements of us, for the repairing of such 
 ways, let the said tenements be taken into our hand, and 
 the sheriff be charged to answer us for the issues, and 
 to cause the repairs to be done ; and where there is no 
 tenement held of us by the performing of such services, 
 our will is, that the persons who are bound to repair 
 the ways, and have not done what they ought, shall be 
 in our mercy, and the sheriff shall be commanded that 
 he cause them to be distrained by their beasts and chat- 
 tels, and detain the distresses until they have amended 
 the defects, and this as often as it shall be needful. 
 
 3. Let inquiry also be made concerning those, who 
 since the first day of the last eyre have erected any 
 gallows, pillory, or tumbrel ; and such persons as are 
 indicted thereof shall be compelled by distress to come 
 and answer ; and if on their appearing, they can neither 
 show sufficient warrant for what they have done, nor 
 deny that they have done it, let them be awarded to be 
 in our mercy, and let the instruments be pulled down. 
 Let inquiry also be made concerning those, who, not 
 being our Justices or our coroners, have held pleas of 
 
 felony and of important trespasses committed against 
 
 5
 
 66 BRITTOK [I, *32. 
 
 our peace ; and concerning those who have held pleas 
 de vetito natnio, or of debt exceeding forty shillings, 
 or of trespass exceeding the same sura without our 
 writs. And also concerning those who have the fran- 
 chises of view of frankpledge and of infangthief, and 
 have not the instruments of punishment which belong 
 to such franchises, whereby such franchises have be- 
 come disused. 
 
 4. Let inquiry also be made of those who keep their 
 lands in warrens, other than those lands which they 
 held in their demesne as of fee on the day of granting 
 their charter of warren : or who have used any other 
 franchise otherwise or more largely in any point than 
 is warranted by the tenor of their charter whereby 
 they ought to forfeit the whole for the abuse. Also 
 of those who take fines for leave of beau pleader; J and 
 of those who hold pleas of persons not within their 
 jurisdiction, and of all such as have aggrieved the 
 people by distresses contrary to the ordinance of our 
 statutes. Those who are accused thereof, shall be dis- 
 trained to appear by the sheriff ; and if on their ap- 
 pearance in court, they can neither deny the fact, nor 
 justify what they have done, their court and their 
 warrens shall be taken into our hand without replevin. 
 
 1 It was forbidden by Stat. Marl. c. 11, (confirmed by Stat. 
 West. 1. c. 8) that arbitary fines should be imposed in Justices' 
 Eyre, County Court, or Court Baron, pro pulchre placitando, 
 that is, for license to amend a defective plea. But when such 
 fines had become settled by custom they were allowed. See 
 Coke Inst. pt. ii. p. 122.
 
 I, *32 &.] OF YAKIOUS WEONGS. 67 
 
 5. Inquiry shall also be made concerning those who 
 have detained felons or provers above a day and a night 
 in prison elsewhere than in our gaol under the custody 
 of our own officers. And if any one has died in pris- 
 on and been buried without view of the coroner, then 
 let it be inquired who buried him, and of the manner 
 of his death ; and those who are indicted and convicted 
 of the first article shall lose their wardenship in fee, 
 and if their offence extends farther, shall be punished 
 more ; and as to the other article, the township where 
 such bodies were buried shall be in our mercy, and if 
 there be any felony, let those who shall be indicted 
 answer it. 
 
 6. Afterwards let inquiry be made concerning weirs 
 raised in common waters, and concerning waters and 
 highways stopped or straitened or in other manner 
 appropriated, and concerning watercourses diverted ; 
 also of walls, houses, marlpits, or ditches, made near 
 the common road to the nusance of passers by, and of 
 those who are guilty of such nusances ; and of high- 
 ways not widened, and of those who have neglected to 
 watch according to the ordinance of our Statutes of 
 Winchester ; and of landmarks and boundaries re- 
 moved ; and according to the presentment of these 
 articles, let the abuses he redressed by view of the 
 presenters at the cost of the offenders, and let the 
 guilty be amerced in proportion to the damage they 
 have done and the profit they have received there- 
 from. 
 
 7-. Concerning those also who have tortiously dis-
 
 68 BRITTON. [I, *33. 
 
 turbed the judgments of our Court, so that execution 
 thereof cannot be made, or have knowingly broken the 
 sequestrations of our officers ; and let such be punished 
 by imprisonment or fine. 
 
 8. Also concerning lands and tenements alienated in 
 mortmain ; and let such lands and tenements be taken 
 into our hand without replevin ; and the purchasers 
 also shall be in our mercy and charged with the issues 
 from one year after the purchase, and the sheriff shall 
 be answerable to us for such issues. 
 
 9. Let inquiry be made of false weights and measures, 
 and let such order be taken as shall be mentioned in 
 the chapter concerning measures. 
 
 10. Let inquiry also be made of clerks who hold 
 pleas of lay people concerning other matters than wills, 
 marriages, or tithes, or who have adjudged any layman 
 in Court Christian to any pecuniary payment, or in any 
 other manner or case than in the articles aforesaid, or 
 who have excommunicated lay people wrongfully, or 
 wrongfully caused them to be apprehended and im- 
 prisoned ; of those also who have aggrieved others bv 
 maliciously serving them with two bills l or summonses 
 for the same day at different places ; and let all such be 
 punished by imprisonment and fine. 
 
 1 The text here is doubtful. The mention of abuses of ecclesi- 
 astical courts immediately preceding lends some support to the 
 reading bulles, which appeared in the former printed editions of 
 Britton. Bracton (f. 402 b.) has a form of prohibition issued to 
 an ecclesiastical court from proceeding in a cause concerning an 
 advowson under the authority of a letter of the Pope.
 
 I, *33.] OF YAKIOUS WRONGS. G9 
 
 11. Moreover let inquiry be made of those who have 
 taken thef bote, 1 of menders of clothes dwelling out of 
 boroughs or cities ; 2 and also of tanners who follow the 
 trade both of a tanner and of a butcher retailing meat ; 3 
 and of those who blanch the skins of beasts which have 
 been stolen, that they may not be known again ; also 
 of cooks who knowingly cook stale or stolen meat or 
 any kind of flesh hurtful to the health of man for the 
 purpose of retailing it ; also of forestallers ; and of 
 those who take up more carts for our use than we 
 need ; and of all other offenders against the form of 
 our statutes ; also concerning messengers and others, 
 who go about aggrieving the people by representing 
 themselves as in the service of those with whom they 
 
 1 ' Taking thef bote' is explained in a note in MS. N, as equiv- 
 alent to letting thieves escape for reward. In the Statutes of 
 Wales it is thus defined : ' De Thefbote, hoc est de enienda furti 
 capta sine consideratione curiae Regis.' (Stat. Wall. (12 Ed. 1.) 
 c. 4.) The word appears to have originally signified the legal 
 bote or composition for theft ; and then to have been applied to 
 the illegal compounding of theft, or taking money to maintain 
 or connive at such offenders. See the Glossaries of Ducange and 
 Spelman ; Terms de la ley, s. v. Theftbote ; Coke, Inst. iii. 134. 
 
 2 ' It is forbidden,' says the commentator in MS. N., that any 
 redubber of clothes or tanner or bleacher of skins (i. e. Wyttawi- 
 ares), shall dwell elsewhere than in cities or boroughs, to avoid 
 the mischief of receiving stolen goods. For a receiver may be 
 the occasion of great wickedness, as is commonly said : Ne is 
 non thef wythouten rescet.' As to whitetawers see Stat. Wall. 
 (12 Ed. I.) c. 4; Cowel's Interpreter, s. v. Whitawarii. 
 
 3 This restriction of trade was at a later time established by 
 Statute. Stat. 1 Jac. I. c. 22. s. 3.
 
 70 I3R1TTON. [I, *33 b. 
 
 are not ; of those also who invent and report rumours 
 and falsehoods concerning us ; of those also who flay 
 or shear sheep ; and of those who have coursed in 
 others' warrens without leave ; also concerning all 
 hamsokens, and blood feloniously shed since the last 
 eyre ; and upon every such presentment, let a speedy 
 remedy be applied with punishment either of life or 
 limb or other penalty. 
 
 12. Further, let inquiry be made concerning those 
 who did not appear before us or before our Justices the 
 first day of the eyre according to their r .immons, and let 
 such be amerced. The like concerning those who alienat- 
 ed their tenements against the eyre, that they might 
 not be summoned upon juries or inquests. 
 
 13. Let inquiry also be made of customs used in the 
 county differing from the common law, and what they 
 are, and if there be any repugnant to the common lq,w, 
 let them be prohibited, unless they have been con- 
 firmed by us or our predecessors.
 
 I, *34.] OF OFFICERS. 71 
 
 CHAPTEK XXII. 
 
 Of our Officers. 
 
 1. Let inquiry be made concerning our escheators 
 and under escheators, and what lands they have seized 
 into our hand in the county since the last eyre ; and of 
 the several lands so seized let a separate inquiry be 
 made of the true value of the profits which every part 
 returned to them or might have returned to others 
 during the time of their possession ; also of waste 
 committed by them in parks and in vivaries, of venison, 
 of fish, and of rabbits and of other destruction done by 
 them in warrens and woods and in other things, and of 
 the value thereof ; and of the chattels found in such 
 tenements or elsewhere and taken by them during the 
 time the lands remained in their custody. 
 
 2. Inquiry is also to be made of all their receipts to 
 our use and their own use, how much they have taken 
 for endowing widows, or for suffering them to be en- 
 dowed, or for permitting heirs being infants to continue 
 with their mothers ; and also for making insufficient 
 extents of land, or for certifying our wardships and our 
 marriages to be less than their real value, or for con- 
 cealing anything which ought to turn to our profit ; 
 or for procuring or suffering false inquests to pass upon 
 the ages of our wards, or in any other thing, to our prej-
 
 72 BKITTON. [I, *34 k 
 
 udice ; and let such presentments as shall be made 
 concerning these officers be enrolled and transmitted 
 to the exchequer, and there determined. We reserve 
 however the judgments upon great offences committed 
 by them for our own determination. 
 
 3. In the next place let inquiry be made concerning 
 the fees taken and frauds committed by coroners, their 
 clerks, and officers, according to that which is con- 
 tained in our Statutes of Exeter. Also of sheriffs and 
 other officers, who for reward or entreaty or out of friend- 
 ship for any man have concealed felonies committed in 
 their bailiwicks, or suffered prisoners to remain unappre- 
 hended, whether within franchises or without, or have 
 let to mainprise prisoners who were not bailable, and 
 have detained others who were bailable. 
 
 4. Likewise, how many prisoners have escaped out 
 of our prison or from the custody of any others in that 
 county since the last eyre, and who they are, and out 
 of whose custody they escaped, what chattels they had r 
 and what is become of their chattels, into whose hands 
 their lauds are come, what they are worth a year, and 
 who has received the profits thereof since their escape, 
 and from what time ; also how many provers have es- 
 caped, and out of whose custody, and by whose consent 
 such prisoners have escaped. And for every escape 
 out of the custody of the sheriff, let the sheriff be 
 amerced one hundred shillings, and for the escape of a 
 prover, let him be committed to prison during our pleas- 
 ure. Let inquiry also be made concerning the defects 
 of gaols, what they are, and who ought to repair
 
 I, *35.] OF OFFICEKS. 73 
 
 them, and through whose default such escapes have 
 happened. 
 
 5. Also concerning sheriffs, their clerks and officers, 
 who have falseh r and maliciously made provers appeal 
 innocent people, or hindered them from appealing the 
 guilty ; and let such as are guilty of this offence be im- 
 prisoned during our pleasure. Also concerning sheriffs 
 who have knowingly let their hundreds to farm to 
 persons of no substance at too high a rent, to the wrong- 
 ful oppression of the people in divers manners ; and 
 let such be amerced. 
 
 6. Also concerning sheriffs and bailiffs who have 
 levied money of the chattels of felons, or for the escape 
 of prisoners, or from amercements for defaults made 
 before coroners or escheators or other general inquirers, 
 or for non prosecution in appeals of felony, or from 
 mainpernors who failed in producing the persons deliv- 
 ered to them on writs of menace, or for not pursuing 
 the hue and cry raised, or for treasure or wreck of sea, 
 or sturgeon or whale found and carried away, which 
 amercements no man ought to levy without our writs of 
 green wax by estreats of our exchequer ; and let such 
 offenders be punished by fine. 
 
 7. Also concerning sheriffs, who have taken fines and 
 amercements from persons in their bailiwick, that they 
 might not be distrained to become knights, 1 in which 
 
 1 As to the date attributed in the margin above to the so called 
 Statutum de militibus, which has been commonly ascribed to 1 
 Ed. II., and the whole subject of compulsory knighthood, see a 
 paper by the Editor in the Archaeologia, vol. xxxix. p. 216.
 
 74 BKITTON. [I, *35 I. 
 
 case the sheriffs are amerciable ; or that have main- 
 tained suits or the parties to actions, and have procured 
 false inquests, whereby justice has been hindered, in 
 which case they shall be punished by fine ; or that 
 have levied one amercement twice, or of two persons 
 bearing the same name, or have levied more than was 
 contained in the estreats of our exchequer ; or if any 
 sheriff has procured the removal of any coroner by ob- 
 taining our writs upon false suggestions, in which case 
 they are amerciable ; or if any sheriff through malice 
 has kept any man in prison whom he ought to have 
 brought before our Justices at our gaol delivery, and 
 in this case they are to be punished by fine and im- 
 prisonment. 
 
 8. Or whether any sheriff through malice has taken 
 more cattle for our debt, or another's, than the amount 
 of the debt, or whether he has distrained beasts of the 
 plough, or wethers, or ewes, or household utensils, or 
 riding-horses, or apparel, or things within doors, when 
 other sufficient distress might have been found, and that 
 without doors ; and whether any one has caused such 
 distresses to be driven out of the fee, 1 or whether they 
 would not suffer such beasts to be fed and supported by 
 the servants and at the cost of the owners, to the injury 
 of one party and to the advantage of the other; and in 
 these cases they are amerciable ; and who have kept 
 such distresses impounded above fifteen days. 
 
 1 It is possible some words may have been lost in this sentence. 
 The rule was, that distresses were not to be driven out of the 
 county, or taken elsewhere than in the lord's fee. Stat. Marl. 
 (52 Hen. III.) c. 2, 4, 15, Stat. West. I. (3 Ed. I.) c. 16.
 
 I, *36.] OF OFFICERS. 75 
 
 9. Of those also who have suffered other pleas to be 
 pleaded in Court Christian besides such as relate to 
 wills, matrimony, and subjects merely spiritual, wherein 
 no money is taken from any of the laity, or have suf- 
 fered a layman to take oath before the ordinary. 
 
 10. It is also to be inquired who have taken fines for 
 redisseisins, or for surcharge of pasture, and for pur- 
 prestures ; and who have accepted annual fees or robes 
 or other bounty for suffering any wrong to be done to 
 us. Also concerning sheriffs or bailiffs, who have sum- 
 moned more people upon juries and inquests than were 
 necessary, with intent to oppress some of them and 
 take bribes from others for leave to stay at home, or to 
 remove some from the panel and put others thereon ; 
 concerning those also who have put persons on juries 
 or inquests who were sick, or disabled by gout, or 
 maimed, or passed sevent} 7 " years of age, or persons not 
 resident in the county, or persons who live remote and 
 may be supposed to have less knowledge of the truth 
 of the matter in dispute ; of such also as have put on 
 the panel persons holding land under forty shillings to 
 do duty out of the county, or under twenty shillings 
 to be on inquests and juries in the county. 
 
 11. Let inquiry be also made concerning bailiffs 
 who make scotales, 1 in order to collect money of poor 
 
 1 Scotales (A. S. scot, payment, eale, ale) appear to have been 
 meetings for drinking, which were in some way made the occa- 
 sion of extortion by foresters and other bailiffs. See Ducange. 
 Gloss, s. v. Scotallium ; Capitula itineris (printed among the 
 Statutes of the Realm), c. 45. var. lect. ; Fleta, p. 28 ( 102).
 
 76 BRITTOK [I, *36 b. 
 
 people, and concerning such as collect sheaves in harvest 
 and lambs and young pigs, and thus go about begging, 
 and have them fed in their bailiwick, to the grievance 
 of the people. 
 
 12. Further let inquiry be made concerning sheriffs 
 who have held their tourn oftener than twice a year ; 
 and of their hundreders and others, who have held 
 their views of frankpledge oftener than twice a year ; l 
 also concerning sheriffs who have answered to us less 
 than they ought for issues forfeited, in which case they 
 are amerciable in double the value of the profit they 
 have made. 
 
 13. The like of Justices, sheriffs, hundreders, and 
 others who have courts, and of the stewards and bail- 
 iffs of the same, who through malice have procured 
 suits to be stirred up against any to oppress them, or 
 have caused our writs of right to be brought wrongfully 
 in their court, in order to increase their court and the 
 amercements of it ; or have amerced people according to 
 their own assessing,or in any other manner than by their 
 peers,beyond the proportion of their offence, contrary to 
 the ordinance of the Great Charter. And of all wrong- 
 ful payments taken by our officers of traverse or of toll, 
 as of lestage, pontage, murage, or causeage, in which 
 case they are amerciable in double the amount of the 
 damages. But as to trespasses of Justices we will that 
 no judgment shall be given without our order. 
 
 1 By the Anglo-Saxon customs hundred courts were held 
 twelve times a year for other business, but twice only for filling 
 up the tithings. (See leg. Hen. I. 1. vii. s. 4 ; 1. viii. s. 1.)
 
 I, *37 j OF OFFICERS. 77 
 
 14. Also of prises or seizures made by our castellans, 
 and others 1 who take upon themselves to be our takers 
 of victuals or other things ; let it be inquired by whom 
 such prises have been taken, and to what damage, and 
 of what people ; and in such case our will is, that 
 none be warranted by continuance of seisin to the dam- 
 age of people, but satisfaction be made to all, nor 
 shall any one make any manner of prises for us > unless 
 he has the authority of our letters making express men- 
 tion thereof. 
 
 15. Of sheriffs also and all other our officers, Jus- 
 tices, coroners, and others, who shall oppress religious 
 communities and other persons, overburdening them 
 by often coming with too great a crowd of people to 
 lodge with them at their cost, or by quartering servants, 
 horses, and dogs upon them, or else by borrowing 
 horses or carts or money of them, or by begging 
 timber or wood or other things for themselves or some 
 of their household or friends ; in which case let them 
 be punished by fine. 
 
 16. Let inquiry also be made concerning our ser, 
 jeants and our attorneys assigned to prosecute and 
 
 1 It is remarkable that the word ' purveyor,' which was after- 
 wards in such ill repute, does not appear to have been used at 
 this time, although the abuse of purveyance was at its height. 
 No grievance is more frequently mentioned in the ancient statute- 
 book. By a statute of Edward III. (36 Ed. 3, c. 2) it was enacted 
 that the very name of purveyor (le haignous noun de purveour) 
 should be abolished, and the officers called 'buyers' (achetours.) 
 But the name very frequently makes its appearance in the stat- 
 utes of subsequent reigns.
 
 78 BRITTOK [I, *37 b. 
 
 defend our rights, whether through favour or otherwise 
 they have permitted or suffered any great lord of the 
 county or other to continue in seisin of any franchise, 
 or any corporeal thing belonging of right to us ; and 
 let such be punished by fine. Also concerning those 
 who have remitted, or have caused to be put out of 
 the roll, or have omitted inserting in the roll, fines and 
 amercements belonging to us ; let such be ransomed 
 and from thenceforth removed from the Court, and 
 their superiors punished at our will. 
 
 17. Also concerning our officers who have main- 
 tained any wrong, or have accepted the presentment 
 to any church, of which the advowson was in litigation 
 in our Court, and let such be punished according to 
 the statutes; or who have maintained any plea b} r 
 champerty or in any other manner ; and whether they 
 have hindered justice in any point ; and of the fees 
 which they take, and of whom, secretly or openly. 
 
 18. Also concerning the clerks of our Court of 
 Chancery, and of the one Bench and the other, and of 
 the Exchequer, who take more than a penny for writ- 
 ing a writ ; and of chirographers who take more than 
 four shillings for the chirograph of a fine ; and of 
 criers, whether any of them take more than is ap- 
 pointed by our statute ; and let such offenders be 
 fined, and expelled the Court, and if their superiors 
 knew of their extortion, and took no measures to cor- 
 rect it, let them be punished at our will. Also con- 
 cerning the clerks of Justices Itinerant, whether they 
 have taken more than two shillings for delivering the
 
 I, *38.] OF OFFICERS. 79 
 
 chapters of the eyre according to the ordinance of our 
 statutes, or whether they have been guilty of any 
 other excesses prohibited by our statutes, or whether 
 any enrollment has been delayed, or any manner of 
 damage or grievance done to any one, on account of 
 damages not allowed to the clerks of our Justices, 
 whoever the Justices may be ; and let them be punished 
 by fine and expelled the Court. 
 
 19. Let it be also inquired concerning confederacies 
 between the jurors and any of our officers, 1 or between 
 one neighbour and another, to the hinderance of justice ; 
 and what persons of the county procure themselves to 
 be put upon inquests and juries, and who are ready to 
 perjure themselves for hire or through fear of any one ; 
 and let such persons be ransomed at our pleasure, and 
 their oath never after be admissible. 
 
 20. Let it also be inquired of cloth made out of the 
 realm, brought into the county and sold there, not 
 
 1 The commentator in MS. JV gives the following example of an 
 offence coming under this head. ' In the county of Northampton 
 a sheriff named Sir Robert de Veer in the 30th year of King 
 Edward made a confederacy with several others of the county, 
 that some of them should indict persons, and the others save 
 them, for bribes, according as the same sheriff should arrange 
 the panels. These persons were afterwards called ' the company 
 of the pouch ' (les queux furent appelez puis : ' La Compaignie de 
 la pouche).' Sir Robert de Vere here referred to was sheriff of 
 Northampton 29-30 Ed. I., but was not continued in his office as 
 was then usual, possibly on account of the above offence. See 
 the list of Sheriffs in Bridges' History of Northamptonshire, vol. 
 i. p. 5.)
 
 80 BRITTON. [I, *3S I. 
 
 being of the right assize according to the purport of 
 the Great Charter, what quantity of such cloth has 
 been sold since the last eyre, and by whom, and what 
 was the value of the cloth so sold by each merchant 
 separately, and who was appointed by us to seize such 
 cloth into our hand ; and let this article be determined 
 in our Exchequer. 
 
 21. Let inquiry also be made of wines sold, whereof 
 the tuns did not contain two hundred and forty gallons, 
 and who those are who thus sold them by wholesale ; 
 and also of the prisage of wines, how many tuns have 
 been taken to our use since the last eyre, and by whose 
 hands, and whether those wines have been sold to any 
 other than to ourselves without our orders ; and let 
 this article also be determined at our Exchequer. 
 
 22. In like manner let inquiry be made concerning 
 all sorts of flesh and fish, and of every kind of spice, 
 wax, silk, canvas, cloth, and avoirdupois, 1 and of all 
 manner of prises, which have been taken to our use 
 since the last eyre, and of the value of each prise. 
 And let inquiry also be made concerning our customs 
 of leather and wool, who have collected them, and how 
 many sacks of wool the collectors have permitted to 
 pass without paying custom, and how much the yearly 
 value of every kind of custom belonging to us amounts 
 to; and let these articles likewise be determined at 
 our Exchequer, according to the discretion of the 
 Treasurer and Barons. 
 
 1 This word is said to have been applied to all goods sold by 
 weight. See Ducange, Gloss, s. v. averium ponderis.
 
 I, *39.] OF APPEALS. 81 
 
 CHAPTER XXIIL 
 
 Of Appeals. 
 
 1. Having in part treated of the articles provided for 
 our eyres, by which we desire to punish evildoers and 
 to convict the wickedness of people at our own suit, 
 we will now set forth how felonies and crimes may be 
 punished at the suit of others; and first of appeals. 
 An appeal is a plaint brought by one person against 
 another in a set form of words with intent to convict 
 him of felony. Not every man however can be an 
 appellor ; for neither an outlawed person, nor one who 
 has abjured our realm, or been sentenced to death in 
 our Court, nor an approver who has failed of his proof, 
 nor an infant under the age of fourteen years, nor a 
 madman, nor an idiot, nor one deaf, or dumb, nor a 
 leper expelled from common society, nor a person in 
 holy orders, is to be admitted in appeals ; yet they 
 may accuse our mortal enemies abiding within our 
 dominions. 
 
 2. There are some felonies which concern our suit, 
 and may be prosecuted for us and not by us, 1 as against 
 
 1 I understand this as meaning, that certain crimes affecting 
 the king, as well as certain crimes affecting subjects, may be 
 prosecuted by appeal, but in that case the appeal must be by a 
 subject for the king and not by the king himself. So Bracton 
 says that where, upon failure of an appeal by the death of the
 
 82 BRITTON. [I, *39 I. 
 
 our mortal enemies, and for counterfeiting our seal 
 and our com ; and there are some which concern the 
 suit of others and not ourselves, as of treason committed 
 against any lord, by violating his wife or his daughter 
 or the nurse of his children, or of counterfeiting the 
 seal of his lord. There are also some felonies, where 
 no other execution follows at our suit than such as- 
 takes place in trespass, as in mayhems, wounds, and 
 imprisonment; and there are others, where judgment 
 of death ensues, as well at our suit as at another's, as 
 in felonies of the death of a man, rape, arson, rob- 
 beries, and others. 
 
 3. First we must treat of appeals of felonies which 
 may be brought for us, and not by us ; as of treason and 
 a compassing designed against our person, to put us, or 
 our consort, or our father, or our mother, or our chil- 
 dren, to death, or to disinherit us of our kingdom, or 
 to betray our host, although such compassing be not 
 put in execution. Of which compassing, our will is, that 
 the accusation be laid before ourselves, or some other 
 who shall without delay inform us thereof ; and any 
 person shall be permitted to make such accusation ; l 
 
 appellor, the appellee is brought to trial at the king's suit, he 
 cannot defend himself by his body, but must put himself on the 
 country, because the king does not fight, and has no other 
 champion but the country, and, even if he were allowed to fight, 
 he could not use the words de visit et auditu necessary in an ap- 
 peal. Brae. 142. 
 
 1 In case of high treason, a servant or even a bondman might 
 appeal his own lord. This was contrary to the general rule re- 
 specting appeals. Brae. 141, 155 b.
 
 I, *40.] OF APPEALS. S3 
 
 for no presentment can be made thereof after any great 
 length of time, without the presenters being in some 
 degree implicated either in consent or in concealment. 
 4. When any person shall offer to prove this crime 
 against one or more, Ave will cause the body of the 
 accused to be immediately apprehended and brought 
 before us. And when they appear for trial, let the 
 accuser make his appeal for us by some serjeant in this 
 manner. ' John who is here appeals Peter who is 
 there of this, that being in such a place on such a day 
 and year, the same John there heard such a death or 
 such a treason contrived between the same Peter and 
 another, such an one by name, and by such confedera- 
 cies, and that the said Peter thus acted and thus con- 
 trived feloniously as a felon and traitorously as a traitor, 
 he the same John is ready to prove by his body, in 
 any manner the Court shall award that he ought to 
 prove it.' In every felony however battle may be 
 hindered by many circumstances ; in which cases it 
 will be necessary to speak otherwise ; for if the 
 appellor be maimed, or under the age of fourteen years, 
 or above seventy, or in holy orders, or a woman, or if 
 he can be aided by record, then he shall say thus : 
 ' This the same John is ready to prove, in whatsoever 
 manner the Court shall award that a man, who is 
 maimed, or of such an age, or of such a condition, 
 ought to prove it ;' or he may say, 'And of this he 
 vouches record of such or such an one, and of their 
 rolls, to warrant.' l 
 
 ? It is not easy to see to what sort of cases this mode of proof
 
 84 BRITTOK [I, *40 b. 
 
 5. We forbid any attorneys to be received either 
 for the appellor or for the appellees, or any essoin to 
 be allowed on one side or the other, in any cases of 
 death. 
 
 6. And our will is, that if the appeal be pronounced 
 by the mouth of a serjeant, and be abated on account 
 of its being ill set forth, or through other default of 
 the serjeant, who ought to understand the art of plead- 
 ing, the serjeant himself shall be amerced one hundred 
 shillings ; and if there was secret malice in the act, and 
 he be convicted thereof, then let him be sent to prison, 
 and suspended from his office. 
 
 7. And as to the defence, the appellee may defend him- 
 self in this manner. ' Peter who is here defendeth all 
 the felonies, and all the treasons, and contrivances, and 
 compassings of mischief against the person' of such an 
 one, or such an one, according as he is charged, word by 
 word. And we will that in these appeals, it shall be 
 more necessary for the appellor to set forth the words 
 orderly without any omission, that his appeal may 
 stand, than for the defendant in his defence ; and in 
 every felony we allow the defendant to defend the 
 words of the felony generally, without treating him as 
 undefended, so that for default of a word or syllable 
 he be not adjudged undefended, but it shall be suffi- 
 
 refers. Possibly to such a case of manifest homicide or petty 
 treason as is mentioned before, (c. vi. s. 4) where the Coroner's 
 roll may have been held conclusive, no other proof either by 
 battle or by the country being required. See before, p. 37, note 
 nnd compare Brarton. 1H7.
 
 I, *41.] OF APPEALS. 85 
 
 cient for him to say, that he is not guilty of such 
 felony as the appellor lays to his charge, and that he 
 is ready to defend the same against him by his body, 
 in such manner as the Court shall award that he 
 ought to do it, or by the country. And in cases of 
 death none shall be held convicted for being unde- 
 fended, but he shall be put to penance, until he be pre- 
 pared to answer better, if he has spoken his defence 
 by his own mouth ; and if by a serjeant, who is avowed 
 by the appellee, let the serjeant be amerced as above 
 directed, and if he be disavowed, let him be punished 
 by imprisonment and fine, and let the defendant pro- 
 vide himself with a better serjeant. 
 
 8. The appellee, having sufficiently defended the 
 substance of the appeal, may then aid himself by ex- 
 ceptions, and first to the jurisdiction of the judge, 
 afterwards to the person of the appellor, then to his 
 own person, and next to the appeal, and lastly to the 
 action, as shall be mentioned amongst exceptions. 
 With respect to the jurisdiction, he may say, that he 
 is not bound to answer in a place where the judge is a 
 party, since in every judgment there ought not to be 
 less than three persons, to wit, a judge, a plaintiff, and 
 a defendant ; and in cases where we are party, our 
 pleasure is, that our Court, to wit, the earls and barons 
 in time of parliament, shall be judges. The jurisdiction 
 of the judge being established, he should consider 
 whether he can aid himself by excepting either to the 
 person of the plaintiff or to his own person ; and next 
 in abatement of the appeal, which may occur in many
 
 86 BRITTON. [I, *41 I. 
 
 cases, as by omitting to name in the appeal the year, 
 day, or place, or naming one name instead of another, 
 or setting forth the appeal thus, ' This showeth unto 
 you John,' where he ought to say, ' John appeals ' ; or 
 by closing his appeal by these words, ' and this I 
 will aver,' instead of saying, 'this I offer to prove,' 
 or for variance, the appeal being made before the 
 Justices in one form, and in the coroner's roll in 
 another. 
 
 9. If he can by any exception abate the appeal, then 
 our will is that he be acquitted as against this appellor, 
 and the appellor shall be committed to prison, because 
 he has failed to prove that he bound himself to prove; 
 and so it shall be in all appeals of felony, and also 
 where the appellor withdraws himself from his appeal 
 before judgment ; 1 and his pledges to prosecute shall 
 also be in our mercy, because they have failed in their 
 engagement. But in these cases we will that modera- 
 tion be used, inasmuch as such persons proffer them- 
 selves to fight in maintenance of our peace. 
 
 10. But though it happen that the appellees are thus 
 
 1 In later times an appellor could by release discharge an ap- 
 peal, (Hale, PI. Cr. vol. i. p. 9) ; and Blackstone is of opinion that 
 the chief object of an appeal at all times was to compel the de- 
 fendant to make a pecuniary compensation : and that when 
 the verdict in the appeal was given in favour of the appellor, he 
 might insist upon what terms he pleased as the ransom of the 
 defendant's life, or for a commutation of the sentence. (Blackst. 
 Comm. vol. iv. p. .'516.) It will be seen that this opinion, so f;ir 
 as regards appeals for minor offences, is confirmed by our author. 
 Soe below, ch. xxvi. s. 2.
 
 1, 41 &.] OF APPEALS. 8T 
 
 acquitted as against the plaintiff, it does not therefore 
 follo\v that they are not guilty of what is laid to their 
 charge ; wherefore in such case let it be immediately 
 demanded of them on our behalf, how they will acquit 
 themselves of such slander; and if they say, by the 
 country, then they shall be remanded to prison until a 
 certain day, and in the meantime the country shall be 
 summoned, and according to the verdict of the country 
 charged thereon, judgment shall be given. 
 
 11. If the defendant cannot abate the appeal, then 
 it shall be in his election, 1 whether he will defend him- 
 self by his body or by the country, and so in all 
 felonies prosecuted by private persons, except in special 
 cases, as of women, persons maimed, and 2 others who 
 neither can nor ought to wage battle. 3 And if he says 
 
 1 In Glanvill's time, the appellee of felony appears to have been 
 bound to defend himself by battle, unless he was excused for 
 age or infirmity, in which case the trial was by ordeal. (Glan. 
 li. 14. c. 1.) The beneficent change which gave the accused the 
 election of purging himself by the country was introduced be- 
 tween the time of Glanvill and Bracton. 
 
 2 The commentator in MS. N. adds, that if the appellee, not 
 being actually maimed, is otherwise ' in so poor a state ' that his 
 inability to fight is evident, the Court ought not to allow him to 
 be wantonly destroyed ; and that lepers are not permitted to 
 wage battle, lest their disease should be communicated to the 
 other combatant. See before, s. 1. 
 
 It was one of the privileges of the citizens of London, that 
 they should not be obliged to wage battle. See the Charter of 
 Henry I. in Ancient English Laws, p. 217, and the Charters of 
 Kit-hard I, Henry III., and Edward II., in Liber Custumarum. p.
 
 88 BEITTON. [I, *42. 
 
 by his body, and it be in the case of felony at the prose- 
 cution of another, then let the matter be examined 
 before battle is joined, whether the cause be trespass 
 or felony, and if trespass, let the appeal be abated 
 by the Justices ex ojficio. But if felony, then let the 
 defendant give security to defend himself, and the 
 appellor security to prove the cause ; next let a 
 day be given them to provide themselves with arms, 
 and let the defendant in the meantime remain in 
 prison. 
 
 12. When they appear armed in Court, let the plain- 
 tiff repeat his appeal word for word as he did before, 
 and the defendant defend himself as before ; and after- 
 wards let them take each other by the hand, and let 
 the defendant swear first in this manner, and the appel- 
 lor afterwards as shall be presently more fully set 
 forth. ' Hear this, you man whom I hold by the hand, 
 who call yourself John by your name of baptism, that 
 I, Peter, did not in such a year, nor on such a day, nor 
 in such a place, compass or propose the death aforesaid, 
 nor did assent to such felony as you have charged me 
 with, so help me God and the Saints.' Afterwards the 
 appellor shall swear thus. ' Hear this, you man whom 
 I hold by the hand, who call yourself Peter by your 
 name of baptism, that you are perjured, inasmuch as 
 on such a day, in such a year, and in such a place, you 
 did propose such a treason .or such a death as I have 
 
 248, 252, 259. The same immunity was claimed by the citizens 
 of Lincoln (Kelham's Britton, p. 153, note), and the burgesses of 
 Bury. Ci-on. Joe. de Brakelonda, p. 74.
 
 I, *42fl.] OF APPEALS. 89 
 
 said against you in the appeal, so help me God and the 
 Saints.' 1 
 
 13. Then let them both be brought to a place ap- 
 pointed for that purpose, where they must swear thus. 
 ' Hear this, ye Justices, that I John (or I Peter) haye 
 neither eaten nor drunk anything, nor done or caused 
 to be done for me any other thing, whereby the law of 
 God may be abased, and the law of the devil advanced 
 or exalted.' And thus let it be done in all battles 
 in appeals of felony. And let proclamation be imme- 
 diately made, that no one, except the combatants, 
 whatever thing he see or hear, be so bold as to stir, or 
 cry aloud, whereby the battle may be disturbed; and 
 whosoever disobeys the proclamation shall be impris- 
 oned a year and a day. 
 
 14. Next, let them go to combat, armed without 
 iron and without the slightest armour, 2 their heads 
 uncovered, their hands and feet bare, with two staves 
 tipped with horn of equal length, and each of them 
 a target of four corners, without any other arms where- 
 
 1 Selden observes, that in these oaths the clause de visu et 
 auditu, which occurs in Bracton (141 &), is omitted, and that 
 this is in analogy to the rule established in civil trials by the 
 Statute of Westminster the first, c. 41. Seldon's Duello, c. vii. 
 See below, p. 91, note ; and compare s. 5. p. 84. 
 
 2 These particulars as to the armour and weapons of the com- 
 batants in an appeal are not found in Bracton or Fleta. Leather 
 armour appears according to most authorities to have been al- 
 lowed. Other notices of this curious subject are to be found in. 
 Dugdale, Orig. Juridic. 68 ; Dyer, Rep. 301 ; Y. B. 1 Hen. VI, 
 7 a': Selden's Duello, c. viii ; Archseologia. vol. xxxii. p. 287.
 
 90 BRITTON. [ 
 
 by either of them may annoy the other ; and if either 
 of them have any other arms concealed about him, and 
 therewith annoy or offer to annoy his adversary, let it 
 be done as shall be mentioned in treating of battle in 
 a. plea of land. 1 
 
 15. If the defendant can defend himself until the 
 stars can be seen in the firmament, and demands judg- 
 ment whether he ought to combat any longer, our will 
 is, that judgment pass for the defendant, and so in all 
 battles between champions ; and in the case of felony 
 the appellor shall be committed to prison. And if 
 the defendant will confess the felony before he is other- 
 Avise attainted, and appeal others of consenting to the 
 same, we allow him to be admitted thereto. 
 
 16. And if the defendant be vanquished, let the 
 judgment be this, that he be drawn and hanged, or put 
 to such other painful death as we shall direct, and that 
 all his movable goods be ours, and his heirs disinherit- 
 ed ; and his children shall be incapable of ever hold- 
 ing land in our realm. And let not any, unless they 
 would be suspected themselves of the felony, presume 
 to intercede for him ; and let the accuser, who without 
 delay shall prosecute such felony with good effect, re- 
 ceive from us a notable reward. Appeals may likewise 
 be sued for us in the same manner for counterfeiting 
 our seal and our coin, and also for violating our consort, 
 or our daughters, or the nurses of our children ; and in 
 such cases, the judgment is, to be drawn and hanged. 
 
 1 The passage here referred to is not to be found in the work 
 .us it exists at present. See Introduction by the Editor.
 
 I, *43 b.] OF HOMICIDES. 91 
 
 whether the conviction be upon an indictment at our 
 suit or upon an appeal by another person for us. 
 
 CHAPTER XXIV. 
 
 Of Appeals of Homicide. 
 
 1. Concerning homicides, our will is, that those shall 
 prosecute whom it concerns, to wit, the male nearest 
 in blood of the kindred of him who has been feloni- 
 ously killed, or one who has done homage to him or been 
 of his household. 1 And their right of action shall last 
 
 1 A woman might bring an appeal of the death of her husband. 
 Mag. Cart. c. 34 Glan. li. 14. c. 3; Brae. 125. (s. 3.) A godson 
 might appeal the slayer of his sponsor. (Post, s. 3.) The appel- 
 lor in earlier times was required to be one who had been actually 
 present at the homicide. (Glan. li. 14. c. 3. Brae. 125. 138, 141, 
 141 b.) There is no intimation in our author that this was con- 
 sidered necessaiy in his time ; and in later times, when appeals 
 were allowed only by the wife or the heir male, it was not re- 
 quired. Staundford Plac. Cor. 59 b ; Blackst. Comm. vol. iv. p. 
 314. Coke treats the change as a consequence of the Statute of 
 Gloucester, c. 9, which provided that appeals should not be so 
 lightly abated as they had previously been. Coke, lust. ii. 317. 
 The case of the champion in civil actions was analogous, the 
 oath de visu et auditu (See Glan. li. 2. c. 3.) being abolished by 
 Stat. West. 1. c. 41, on the ground that it only led to perjury 
 The expression used by the older authors as to the wife's appeal 
 for the death of her husband. ' killed between her arms,' (Brae- 
 ton, 125, 148 b; Fleta 53; Britton, post, s. 7.) which implied 
 the necessity of the wife being present at the killing (See Glan. 
 li. 14. c. 3.) : was in later times explained to mean, that the wife 
 was 'in seisin ' of her husband as his lawful wife at the time of
 
 92 BRITTOK [I, *43 b. 
 
 a year and a day. Every man must commence his ap- 
 peal in the county where the felony was committed, 
 and the plaintiff at the first county court, when he 
 wishes to bring his plaint, must find two pledges to 
 prosecute, and cause his appeal to be entered in the 
 roll of the coroner, and then continue the same from 
 county court to county court without interruption ; and 
 if justice be not done either to the plaintiff or to the ap- 
 pellees, we will that upon reasonable occasion they 
 may b}^ writ out of our Chancery remove the appeal 
 out of the county court before us wheresoever we shall 
 be in England. 
 
 2. We forbid that any person be detained in prison 
 for an accessory fact, if he can find mainpernors to an- 
 swer for him, until conviction of the principal fact, or 
 that any Justice proceed against the persons appealed 
 of the force or accessory causes before conviction of 
 the principal fact, or until those who are appealed of 
 the principal fact are outlawed for their contumacy. 
 
 his death. See Coke. lust. ii. 68, 317 : and compare Mirror, c. 3. 
 s. 18. There is another observable change in the law of appeal, 
 probably connected with the change already noticed. In the 
 time of Glanvill and Bracton it would seem that any kinsman 
 was admitted to appeal, although of several appellors the nearer 
 in blood was preferred. (Glan. li. 14. c. 3. Brae. 125.) In our 
 author's time the appeal appears to have been abatable, if there 
 was any person neai'er in blood than the appellor, who might 
 have appealed though he did not actually do so. See below, s. 3. 
 But the author of the Mirror states this ground of exception in 
 accordance with the older practice : Sir, oest actor n' avera nule 
 accioun, de sicome il y ad un autre pluis prochein de sank que 
 ad attame son appeal. (Mirr. c. 3. s. 18.)
 
 I, *44.] OF HOMICIDES. 98 
 
 And if the person appealed as principal be acquitted 
 of the fact, our will is, that those who are indicted or 
 appealed of the force, or of the receipt, or of command- 
 ing, or of other accessory facts, shall be cleared thereof 
 by the same judgment. 
 
 3. When the parties appear in judgment, let the 
 plaintiff set forth his appeal; and let the defendant 
 defend the felony, in words agreeable to the form of 
 the Court, and then aid himself by exceptions, as where 
 the appellor is outlawed, or adjudged to death for fel- 
 ony, or has adjured the realm ; for in these cases they 
 shall not be bound to answer such appellors. He may 
 likewise abate the appeal several ways, as where the 
 appeal was not commenced within the year and day, or 
 not in the county where the felony appears to have been 
 committed, or for variance between the appeal made 
 there and in the roll of the coroner, or if there is any 
 other male nearer of blood, who has a better right to 
 bring the appeal, or if the plaintiff is not concerned to 
 appeal, not being of the blood of the dead man, nor 
 having been of his homage, nor his fosterchild, nor his 
 mainpast, nor by him lifted from the baptismal font; 
 or if there is homage still subsisting between the plain- 
 tiff and defendant ; or if the fact alleged is not felony ; 
 it may likewise be abated for omission, as if no felony 
 or treason is named in the appeal, or if the breaking of 
 our peace, or other words of the substance of the appeal 
 are omitted, as above mentioned ; so likewise for error, 
 as if the name of Reyner is used for Reginald, as will 
 be noticed in treating of exceptions.
 
 94 BKITTON. [I, *44 b. 
 
 4. The appeal may also be abated for want of pros- 
 ecution by the plaintiff, as when he has sued in the 
 county at two courts, and made default at the third, 
 and this can be proved by the coroner's roll ; in which 
 case our will is, that if the defendant can prove the 
 nonsuit in the county to have been made before the 
 date of our writ to remove the appeal, our Justices 
 shall commit the plaintiff to prison for his nonsuit, and 
 his pledges shall be in mercy. But if the appellor die 
 or fall so grievously sick that he cannot carry on his 
 suit, in such case the pledges shall not be amerced for 
 the nonsuit, and we allow that some other person,, 
 whose duty it is and who is capable of doing it, shall 
 be permitted to revive the suit and prosecute it until 
 the appellees are either acquitted or condemned. And 
 if any of the appellees surrenders himself before he is 
 outlawed, where the appellor makes default, let him 
 be admitted to bail, as to our suit, until the first gaol 
 delivery, in cases where he is bailable. And although 
 he acquit himself as to our suit, yet the suit of any 
 other, who will prosecute within the year and day, is 
 not thereby taken away. 
 
 5. The defendant may also answer by exception to 
 the action in several ways ; for he may say that at 
 another time there was an appeal in our Court between 
 the same persons for the same felony, and that he was 
 acquitted thereof before such Justices ; and if he 
 avouches this by warrant of record, and the record 
 passes in his favour, he shall be awarded quit, and the 
 plaintiff to prison. Or he may say, that although he
 
 I, *45.] OF HOMICIDES. 95 
 
 committed the act, yet he did not do it by felony pre- 
 pense, but by necessity, in defending himself, or his 
 wife, or his house, or his family, or his lord, or his 
 lady, from death ; or that he killed the man in defence 
 of our peace, or by some mischance, without any 
 thought of felony ; in all which cases, if proved, the 
 appellees shall have judgment of acquittal. 
 
 6. If the defendant cannot aid himself by any excep- 
 tion, let it be in his election to defend the felony by 
 his body, if the plaintiff be able to fight, or by the 
 country ; and if he will not put himself on his defence, 
 let him be put to penance until he prays to do it. And 
 according to the event of the battle, or of the verdict 
 of the country, judgment shall be given. The punish- 
 ment of felons who have committed homicide shall be 
 death, with disherison of their heirs, with further 
 punishment if the occasion requires it. 
 
 7. As to women, our will is, that no woman shall 
 bring an appeal of felony for the death of any man, 
 except for the death of her husband killed within her 
 arms, 1 within the year and day. For an infant killed 
 within her womb, 2 she may not bring any appeal, no 
 
 1 As to the interpretation of this phrase, see note above, p. 109. 
 
 2 Although neither Glanvill nor Bracton specifically mention 
 an appeal by a woman for the death of her unborn child, the ex- 
 pressions used by them, ' injuria corpori suo inflicta ' (Glan. li. 
 14. c. 3.) 'injuria et violentia corpori suo illata' (Brae. 148 &), 
 may include this crime as well as rape. And it is clear from 
 ancient records of the time of John and Henry III, that such an 
 appeal was anciently allowed. (See Sir Sam. Clarke's Note on 
 Fleta, li. i. c. 35, Kelham's Britton, p. 152.) Fleta expressly ad-
 
 96 BRITTON. [1, 45 I. 
 
 one being bound to answer to an appeal of felony, 
 where the plaintiff cannot set forth the name of the 
 person against whom the felony was committed. With 
 regard to an appeal of rape, our pleasure is, that every 
 woman, whether virgin or not, shall have a right to sue 
 vengeance for the felony by appeal in the county 
 court within forty days, but after that time she shall 
 lose her suit; in which case, if the defendant confesses 
 the fact, but says that the woman at the same time 
 conceived by him, and can prove it, then our will is 
 that it be adjudged no felony, because no woman can 
 conceive if she does not consent. 
 
 CHAPTER XXV. 
 
 Of Appeals of Robberies and Larcenies. 
 
 1. WITH respect to robberies and larcenies, our will 
 is, that if other persons desire to bring an appeal and 
 sue for revenge of such felonies, their right of pros- 
 ecution shall continue a year and a day, and that ap- 
 peals be commenced in the counties where the felonies 
 were committed. The appeals may be made in this 
 manner. ' John who is here appeals Peter who is 
 there, that whereas the same John on such a day in 
 such a year had such a horse, which he kept in his 
 
 mits it, and gives the form of accusation (Fie. 53, 54.) ; and the 
 statement in the text may have been intended as a correction of 
 that author. Possibly it was considered that the right of appeal 
 in this case was abolished by Magna Carta, s. 24.
 
 I, *46.] OF KOBBERIES. 97 
 
 stable' or elsewhere in such certain place, 'the same 
 Peter there cume, and the same horse feloniously as a 
 felon stole from him, and took and led away against 
 the peace, and that this he wickedly did, the same John 
 offers to prove by his body as the Court shall award 
 that he ought to do it.' And if the horse was stolen 
 out of his custody, or if he was robbed of it, let him 
 change the words of his appeal according to the sense 
 required ; so if the plaintiff be maimed, or in such other 
 condition that battle ought not to be joined. 
 
 2. Next let Peter answer and defend the felony by 
 words proper for defence ; and then he may either de- 
 fend himself by exceptions, or by his body if there are 
 no circumstances to prevent the battle, or by the 
 country, or vouch to warranty, if he has any one to 
 call. And if he pleads that the horse was his own, 
 and that he took him as his own and as his chattel lost 
 out of his possession, and can prove it, the appeal shall 
 be changed from felony to the nature of a trespass. 
 In this case let it be awarded that the defendant lose 
 his horse for ever ; and the like of all usurpations in 
 similar cases, because our will is that every one proceed 
 rather by course of law than by force. 
 
 3. If the defendant vouches to warranty by aid of 
 our Court, and the vouchee comes by aid of our Court, 
 or without such aid, and enters into warranty, the 
 principal plea shall cease, and the appeal begin anew 
 against the warrant, and according to his defence let 
 judgment be given. 
 
 4. If the vouchee will not enter into warrantv, the 
 7
 
 98 BRITTOX. [I, *4C I. 
 
 voucher may say thus. ' Peter who is here, says that 
 Thomas who is there, wrongfully refuses to warrant 
 the same horse against John who is there, who 
 challenges it as his own ;and herein wrongfully, inas- 
 much as the same Thomas sold (or gave or lent) the 
 same horse to him said Peter on such a day and year, 
 in such a place; and that he did so, the same Peter 
 offers to prove by his body, in such a manner as the 
 Court shall award he ought to prove it.' And in this 
 case it behoves the vouchee to defend such contract, 
 either by his body, or by the country, so that judg- 
 ment of death may pass upon the one who is defeated, 
 and the successful party be allowed to go quit ; and 
 the thing challenged shall be delivered to him who 
 challenged it, if he properly prosecuted his suit, other- 
 wise it shall belong to us. 
 
 5. And if there be any fraud in. the warranty, as if 
 the appellee by collusion vouches to warrant some 
 champion or other strong man, or a clerk, who malici- 
 ously and for hire enters into warranty, and the 
 demandant prays leave to lay open the fraud and the 
 malice, as done to make him withdraw himself from 
 the battle for fear of the might of the champion, or 
 for the privilege of the clergy, inasmuch as the vouchee 
 being a clerk intends to purge himself in Court Chris- 
 tian, should he be attainted by the lay Court, let him 
 be admitted thereto ; and if the malice be proved, both 
 the warrantee and the warrant shall have judgment 
 of death, 1 and the demandant shall recover his demand. 
 
 1 By this clause a severer punishment is imposed upon the
 
 I, *47.] OF ROBBERIES. 09 
 
 6. As to larcenies and robberies committed in time 
 of peace, where the offenders were not freshly pur- 
 sued ; the owners of the things shall have their 
 suit by appeal of felony within the year and day as in 
 other felonies ; but after that time their right of appeal 
 shall cease, and the suit shall be ours. It is equally so 
 within the year and day, if no other suit is commenced, 
 and so in all manner of felonies. And if the demand- 
 ants bring their suit in form of trespass, they shall be 
 heard, if they have not before commenced their suit 
 in form of felony, in which case they cannot, by with- 
 drawing from their suit, deprive us of ours. But 
 where they have sued in form of trespass, although 
 our peace may have been broken, we will not prose- 
 cute. 
 
 7. If any appellee has withdrawn himself, let him 
 be demanded from county court to county court, till 
 he either appear or is outlawed. And when he shall 
 have come into Court, and the appellor shall have 
 appealed him by words of felony, and the appellee de- 
 fended himself by proper words of defence, let him 
 in the first place consider whether he can aid himself 
 by general exceptions, as to the person of the judge, 
 that he has not authority to hear and determine the 
 appeal, which exception may be true in many ways, 
 as if the act wherewith the defendant is charged was 
 
 colluding vouchee than was before in use. According to Brae- 
 ton and Fleta, the hireling champion was to lose a foot and hand. 
 And according to Fleta, the clerk was to be imprisoned and ran- 
 somed. (Brae. 151 b; Fie. 55, 56.)
 
 100 BEITTOK [T, *47 1. 
 
 not done within his jurisdiction, and this exception 
 holds good in counties, or where the judge is not 
 authorised thereto by our writ. Or he may except to 
 the person of the appellor, which may also be in sun- 
 dry ways; or to his own person. If no objection lies 
 against any of the persons, then let him see whether 
 he can aid himself by general exceptions to abate the 
 appeal ; and if he cannot, let him then aid himself by ex- 
 ceptions to the action, as that the thing challenged is not 
 of the value of twelve pence ; and many other exceptions 
 may be used. If he cannot avail himself of any 
 exception, and has no warrant to vouch, he may 
 lastly defend himself by his body, or by the country. 
 And if he be attainted, let him have judgment of 
 death. 
 
 8. The appellor may afterwards proceed against the 
 receivers and the others for aiding and consenting, 
 whosoever they are. And when one man is appealed 
 by several, or several by one, and battles are to ensue, 
 the battles shall not take place at one time, but at 
 different times. Nevertheless the felon's wife may 
 plead, that although she was privy to the crime of her 
 husband, yet she neither could nor ought to accuse him 
 as long as she was under coverture ; but this answer 
 must not be allowed in too general a manner to such 
 wives to excuse them from acquitting themselves of the 
 fact, and of the consent, by the country ; for it mav 
 often happen that the wives of felons hold the persons 
 attacked whilst their husbands kill them, and in such 
 case both of them are guilty of the felony ; and as to
 
 I, *48.] OF ROBBERIES. 101 
 
 the concubines of felons, they shall in no wise be allowed 
 to excuse themselves by coverture. If it appears that 
 any woman who is adjudged to death for this or any 
 other felony be big with child, then execution of the 
 judgment shall be delayed until the child be born. 1 
 
 9. Felons, in this as in all other felonies, may have 
 accomplices, receivers, and abettors, whom they may 
 appeal for the sake of prolonging their own lives ; and 
 if they will become provers, then let the coroner go to 
 them, and hear the confession of their own felonies, and 
 cause such confessions to be enrolled, and also their 
 appeals, together with their names and the names of 
 the appellees. And if the provers make the justice of 
 their appeals appear, and have lied in no particular, 
 then they shall have our pardon of life and limb where 
 we shall see meet because they have fought for our 
 peace. 2 But our will is, that from the time any such 
 prover has failed of his appeal, he shall be no more 
 heard against any other whom he has appealed, but 
 all others appealed by him shall be adjudged quit as to 
 his appeal, and the prover shall be condemned to death ; 
 
 1 Braeton derives this rule of humanity from the Roman Law, 
 citing a passage in Dig. lib. 48, tit. 19. 1. 3. 
 
 2 The commentator in MS. A T . states that it was considered that 
 an approver had not merited pardon until he had made good his 
 appeal by battle against seven accomplices ; and that by some 
 the number was put at nine ; and that even then he was not to 
 be permitted to remain in the country, but to be exiled, or to 
 take the cross in the Holy Land. The latter point is confirmed 
 by Braeton : ' Vitam habeat et membra, sed in regno remanere 
 non poterit, etiam si velit plegios invenire.' Brae. 153 b.
 
 102 BKITTOK [I, *48 b. 
 
 and if the persons appealed are suspected, let them 
 answer at our suit, and clear themselves of the slander ; 
 but if they are of good fame, then we permit them to 
 be let out by sufficient mainprise as to our suit until 
 the eyre of the Justices, or until we shall take proceed- 
 ings against them. The like liberty shall be granted 
 to those who are indicted of any felony through hatred, 
 and by procurement of their enemies ; which hatred 
 shall be convicted by inquest by virtue of our writ De 
 odio et atia, saving to every one his suit. 
 
 10. As to pigeons, fish, bees, or other wild animals, 
 found in a wild condition, we ordain that no man have 
 judgment of death on account of them ; but otherwise 
 if they have been feloniously stolen out of houses, or 
 if they are tame beasts, out of parks. And no appeal 
 shall lie where the damage is under twelve pence, nor 
 in any case which shall be found by examination of 
 the Justices to be rather trespass than felony ; as 
 where the appeal is made of a wound, and it appears 
 to be only a bruise or scratch.
 
 I, *49.] OF MAYHEM. 
 
 CHAPTER XXVI. 
 
 Of Appeals of Mayhem. 
 
 1. Concerning mayhems, we are content that the 
 maimed shall sue by appeals of felony against the 
 offenders ; and when any appellee is convicted of such 
 felony, and brought up for judgment, let the judgment 
 be this, that he lose the like member as he has destroyed 
 of the plaintiff ; and if the plaint be made against a 
 woman who has deprived a man of his members, she 
 shall have judgment to lose a hand, being the member 
 wherewith she committed the offence. In this felony no 
 prosecution shall lie at our suit with a view to the 
 judgment of loss for loss ; but if the appeal be abated, 
 the felons shall answer for such felonies, and if they 
 are attainted at our suit, they shall be awarded to 
 prison, and ransomed thence for breaking our peace. 
 And our will is, that nothing be deemed a mayhem 
 unless a member be lost, whereby a man is rendered 
 less able to fight ; as the loss of an eye, a hand, or a 
 foot, or fracture of the skull bone, or loss of the fore 
 teeth ; but the loss of the molar teeth, or of an ear, 
 or of the nose, is not accounted a mayhem, but a dis- 
 figurement only. 
 
 2. Appeals of felony may also be brought for wounds, 
 and for imprisonment of freemen, and for every other 
 enormous trespass ; but for avoiding the perilous risk
 
 BKITTON. [I, *49 I. 
 
 of battle, it is better to proceed by our writs of trespass 
 than by appeals ; for if variance be found between the 
 appeal as entered in the roll of the coroner and as set 
 forth in the county court, or if there has been any 
 omission, or any interruption of the county courts, 
 or other error, the plaintiff shall be commanded to 
 prison for not having performed what he bound himself 
 to do, and shall make satisfaction to the defendant, and 
 afterwards to us. But if the appeal be maintained, 
 and the defendant have put himself for good or ill on 
 the country, and the jury say that he is guilty, the 
 same judgment shall be given against him as would 
 have been in case he had been vanquished in battle, to 
 wit, wound for wound, imprisonment for imprisonment, 
 and trespass for trespass. But in such cases our will 
 is, that the execution of the judgment be so far miti- 
 gated, that the appellees be sent to prison, and there 
 remain in irons till they have made satisfaction to the 
 plaintiffs ; and they shall afterwards be punished for 
 breach of our peace. 
 
 3. The like judgment shall result where the proceed- 
 ing is by our writ of trespass. But some trespasses 
 deserve a greater punishment, as trespasses committed 
 in time of peace against knights or other honourable per- 
 sons by ribalds or other worthless people ; in which case 
 our pleasure is, that if a ribald be attainted at the suit 
 of any knight of having feloniously struck him without 
 any provocation from the knight, the ribald shall lose 
 the hand wherewith he offended. We have said, in 
 time of peace, because as to injuries done at tourna-
 
 I, *50.] OF ATTACHMENTS. 105 
 
 raents and jousts, or such warlike feats, \ve will not in- 
 terpose, unless the acts be done in our presence. 
 
 4. Our will also is, that the articles and penalties or- 
 dained by us and our council, -and proclaimed to be put 
 in force for a certain time with regard to strangers, be 
 observed and executed according to such ordinances. 
 
 CHAPTER XXVII. 
 
 Of Attachments, and other proceedings in actions of tres- 
 pass j and of the concision of the Eyre. 
 
 1. We have already treated of the manner of convict- 
 ing offenders for breach of our peace by appeals and 
 presentments ; we must now show how the breach of our 
 peace is to be convicted by way of trespass. In the first 
 place, when any one has obtained our writ of trespass 
 for a mayhem, imprisonment, or wound, or for anything 
 stolen or robbed or in any other manner wrongfully car- 
 ried away or detained, or for breaking parks, or for bat- 
 tery, or for other things committed against our peace, 
 or against a bailiff for refusing to render account to his 
 lord, let him begin by delivering his writ to the sheriff ; 
 and afterwards let him find two pledges distrainable to 
 the sheriff to prosecute his plaint. A.nd let the sheriff 
 cause the trespassers to be distrained by their cattle or 
 by their chattels, and afterwards adjourn them to be 
 in our Court at the day prefixed according as shall be 
 contained in our writs, to answer to the plaintiffs for
 
 106 BRITTOK [I, *50 I. 
 
 the trespasses contained in the writs ; so that every 
 defendant may have notice of his adversary's case. 
 
 2. And if the writs are returnable in a franchise, 
 and the bailiffs will not execute our precept unless the 
 plaintiff will find them pledges distrainable to them^ 
 in such case the sheriff may make a return in our Court, 
 that he sent to the bailiffs of the person having the 
 franchise of return of writs to do execution, but that 
 they have nothing done ; and we will immediately 
 command the sheriff that he omit not by reason of the 
 franchise to enter and do execution. And the plaintiff, 
 if he will, may proceed against the bailiffs to recover 
 his damages ; for it would have been allowable for the 
 plaintiffs to have found sureties to prosecute their 
 plaints in our Chancery without prejudice to any one; 
 wherefore the surety found to the sheriff on every 
 writ is sufficient. 
 
 3. If the defendants suffer distresses to be taken into 
 the hands of the sheriffs, the sheriffs may return that 
 they have distrained them by such cattle or by such 
 chattels ; and if the defendants do not thereupon come 
 into court, then it must be distinguished whether the 
 plaint is in our Court, or elsewhere, as in the county, or 
 in a court baron or other freeholder's court ; and if in 
 our Court before us or before our Justices, then we will 
 that no default be adjudged in any plea until after the 
 fourth day. If they do not come within. the fourth 
 day, and are not essoined, and the plaintiff offers him- 
 self and demands judgment for the default, the great 
 distress shall be awarded, and the sheriff shall be
 
 I, *51.] OF ATTACHMENTS. 10T 
 
 charged to answer unto us for the issues of the first 
 distress ; and the Justice shall adjourn the defendant 
 to be in court on another day ; at which day no essoin 
 shall be allowed him, for we forbid the allowing of an 
 essoin in any case after default, until such default be 
 cleared in our Court. And if upon this day the defend- 
 ants make default, the issues shall be forfeited to us, 
 and the sheriff shall be charged to answer unto us for 
 the same, and these distresses shall be continued from 
 day to day until they appear and answer. 
 
 4. If the plea be in any other court than ours, and 
 the defendants have neither appeared nor caused them- 
 selves to be essoined, we will not that judgment be de- 
 layed until the fourth day ; but immediately on the 
 first day let it be awarded by the suitors, that such 
 distresses be detained, and more be seized, and so from 
 court to court. If the sheriff or the bailiff has not exe- 
 cuted the precept, let him be in mercy. 
 
 5. The same process of distress is to be awarded in 
 defaults after essoins in a writ of trespass committed 
 against our peace ; but in an attachment of felony no 
 distress runs excepting against the body, if it can be 
 found. And if in the above cases the sheriff return, 
 that the trespassers have nothing in his bailiwick where- 
 by they may be attached, it shall be awarded that he 
 take their bodies ; and. if he return that the bodies are 
 not found in his bailiwick, then let it be ordered by our 
 \vrit of judgment, that they be demanded from county 
 court to county court until they be outlawed, if they 
 do not appear.
 
 108 BKITTON. [I, *51 h. 
 
 6. And when any person who has been distrained 
 shall come into court, and cannot clear his default, let 
 him be straightway adjudged in our mercy for his de- 
 fault; and if there be several defaults, let there be 
 several amercements. And if any one be attached by 
 pledges and make default, let the pledges be summoned 
 to hear their judgment, for not having him in court 
 for whom they were pledged. At which day if they' 
 do not appear, or cannot deny their being pledged, they 
 also shall be in our mercy ; but if they will deny the 
 plevin, the debate shall be between them and the 
 sheriff. 
 
 7. When the defendants have appeared in court, 
 and heard the plaintiffs count against them, and have 
 defended themselves by proper words of defence, they 
 may then aid themselves by exceptions general or 
 special ; and first, by exceptions to the judge ; after- 
 wards to the person of the plaintiff or to their own 
 person, as shall be mentioned amongst exceptions in 
 the writ of right ; 1 or they may except to the writ, as 
 where a writ is sued out into any other county than 
 where the fact is alleged to have been committed, or 
 for a fault, error, or omission therein. 
 
 8. If there be no dilatory exception, let them an- 
 swer to the action ; to which they may say that they 
 were previously acquitted of the same trespass, as 
 
 1 The proposed chapter on Exceptions in the Writ of Right ivS 
 not contained in the Treatise as it now exists ; but some further 
 observations upon exceptions to the person may be found in book 
 ii. chap. 18.
 
 I, *52.] OF ATTACHMENTS. 109 
 
 against the same plaintiff; and if -this be verified by 
 record, let judgment be given accordingly. Or the 
 defendants may say that the parties made accord of 
 this trespass ; and if the plaintiff deny it, let the truth 
 be inquired by the country. And if the plaintiffs will 
 not agree to the accord, let the defendants be awarded 
 quit, and the plaintiffs in mercy. 
 
 9. With regard to receivers of trespassers, com- 
 manders and accessories, there is not as yet any pun- 
 ishment ordained, *except only against the principal 
 trespassers. And if the plaintiff complains of a damage 
 done to himself and to his men, or only on behalf of 
 his men, the defendant may say that every man has a 
 separate action ; and in such cases we will that the 
 plaintiffs recover nothing by their plaints beyond the 
 damages which they can reasonably show they have 
 sustained by the loss of the services of their men, who 
 have been beaten or imprisoned, or so treated as to be 
 incapable of service. And their action shall not be 
 brought until after conviction of the trespass commit- 
 ted against the servants. 1 
 
 10. If the sheriff return that the defendant is a clerk, 
 and refuses to submit to his jurisdiction, and that 
 he has no lay fee in his bailiwick whereby he can 
 
 1 According to Bracton, an action might be brought by the 
 master for the insult and disgrace inflicted upon him in the per- 
 son of his servant, although no loss of service followed ; and even 
 though the servant withdrew from his action, or refused to 
 prosecute, the master might himself sue. (Brae. 115.) The 
 change of law is indicative of an increase of personal inde- 
 pendence.
 
 110 BRITTON. [I, *52 b. 
 
 be distrained, let his ordinary, as the archbishop or 
 bishop, be commanded by our writ that he cause such 
 a one his clerk to appear. And if he does not produce 
 him at the day named in our writ, let the bishop be 
 summoned to answer why lie did not produce him at 
 our precept. And if the bishop neglect our summons 
 let him be attached to come by distress, and if he does 
 not come at the first distress, let the great distress as 
 above said, proceed against him until he shall come ; 
 and when he has appeared in court, if he cannot clear 
 his default, let him be amerced. 
 
 *11. There are however several actions of trespass 
 which require greater expedition, as trespasses com- 
 mitted against us or our consort, or our children, or 
 against foreign persons, as solemn ambassadors or alien 
 friends, or against our officers, or against merchants, or 
 against those who have taken the cross ; in which cases 
 no formality of attachment shall be required, but the 
 bodies of the defendants shall be immediately attached, 
 so that the sheriff shall have them to answer on the 
 first day. 
 
 12. There are some actions also pleadable by like 
 distresses as in trespass, where no outlawry ensues, and 
 which are more dilatory by a day, and commence by 
 summons; as a plea of debt, of covenant, in case of 
 warranty of charter, waste, sale, destruction of houses 
 or woods or other freehold, and pleas of naifty, and 
 several others. 
 
 13. Whatever may be pleaded in the county court 
 may also be pleaded in the eyre of the Justices ; as pleas
 
 I,.*53.] OF ATTACHMENTS. lit 
 
 de vetlto namio, of debt, of naifty, of wards, and mar- 
 riages ; also presentments made in the sheriff's tourns 
 and in views of frankpledge ; and also pleas concern- 
 ing false weights and measures, and many others, 
 which are pleadable before our Justices assigned to 
 take assises *in the county, and writs pleadable before 
 our Justices of the Bench at Westminster. 
 
 14. If any presentment upon the articles of our 
 Crown remain uncommenced or undetermined, then let 
 the Justices, unless they have a good and reasonable 
 excuse, be punishable at our discretion. When the 
 presentments on the articles of the eyre are determined, 
 the pleas of land shall be immediately adjourned before 
 them to another county ; or if the eyre is not to be 
 continued, they shall be adjourned into the Bench, in 
 the presence of the parties. The amercements are 
 immediately to be assessed, 1 and the estreats sent to 
 our Exchequer; the like as to fines and the chattels of 
 felons and fugitives ; and the names of the fugitives shall 
 be enrolled in two rolls, whereof one shall remain with 
 the coroners and the sheriff of the county under the 
 seal of the Justices thereto attached, and such persons 
 are to be demanded by their names at the first county 
 court after the eyre, to come and submit to justice in 
 our Court, and so from county court to county court, 
 until they appear or be outlawed. The other roll, 
 together with all the rolls of the eyre, shall be trans- 
 mitted to our Exchequer, and safely kept in our Treas- 
 ury. 
 
 1 See before, c. ii. s. 4.
 
 112 BRITTOK [I, *53 b. 
 
 15. If the suitors of the county be attainted of false 
 judgment, or have made any other error in the usage 
 of the la\v, the county shall be in our mercy. The 
 hundreds also for the defaults of the suitors, and the 
 townships for divers defaults ; and the amercements 
 shall be assessed according to our Statutes of West- 
 minster. And afterwards let the sheriff be commanded 
 to aid the presenters by causing the neighbours to raise 
 reasonable contributions towards their expenses. 
 
 CHAPTER XXVIII. 
 
 Of Distresses. 
 
 1. In counties we have a twofold court ; 1 one of 
 the pleas of our peace, which is held by our coroners 
 and the suitors, and of which the coroners only have 
 record ; we have also a court of the nature of a court 
 baron, in which the suitors are judges, and have no 
 record out of their court, except by consent of the 
 parties. For in their courts neither party may deny 
 what he has before pleaded ; but if the plea be removed 
 
 1 This description of the several branches of the county court 
 is somewhat obscure. The twofold division probably applies to 
 the original or ordinary jurisdiction of the county court on the 
 one hand, and the derivative jurisdiction by virtue of the King's 
 writ on the other. The first is again subdivided into the crim- 
 inal jurisdiction, in which the coroner took part, and the juris- 
 diction in civil actions commenced by plaint, where the process 
 was similar to that in courts baron. (See post, s. 20, and c. 29. 
 
 8.1.)
 
 I, *54.] OF DISTRESSES. 11.3 
 
 out of the court of such suitors, either of the parties 
 may deny the record. But for that purpose he must 
 have suit ready at hand, to wit, such a one his free 
 man who was present at such court, and saw and heard 
 that the plea was so pleaded, which he is ready to prove 
 by his body, in whatever manner the Court shall award 
 that he ought to prove it. We have also our court there, 
 with the sheriff of the county for our Justice, whenso- 
 ever we command our sheriffs by our writs, that for 
 purposes of justice they cause any plaint to be brought 
 before them, whereof the sheriff with the suitors bears 
 record. 1 
 
 2. And whereas they may be entrusted with the de- 
 termination of several kinds of writs, in the first place 
 we will that they understand the nature of the plea of 
 distress ; which plea we do not allow any one to deter- 
 mine \vithoutour writ. But to the intent that beasts 
 and other distresses may not be too long detained or 
 impounded, and to avoid further damage, we have 
 granted that the sheriff by simple plaints and by 
 pledges may deliver such distresses, and determine the 
 
 1 The sheriff, when sitting by virtue of the King's writ, is 
 treated by our Author as the King's Justiciary, and as having 
 the power of record incident to that office. See before, c. 1. s. 7 ; 
 and farther on, li. ii. c. 30. s. 8. See also Brae. 117. Hengham 
 Mag. c. iv. pp. 20, 21. It was decided in later times, that the 
 county court, though sitting by virtue of the King's writ of Jus- 
 tides, or De Nativo habendo, had not the powers of a court of 
 record. Y. B. 2 H. IV. 24 ; Brooke, Abr. Faux Imprisonment, 
 30 ; Dalton, Offic. Vicecom. p. 158 6 ; Jentleman's Case, 6 Coke. 
 
 Rep. 11. 
 8
 
 BKITTON. [1, *54 b. 
 
 taking without regard to the vee 1 and tortious detaining, 
 if the plea is not removed by our writ into the Bench, 
 because vee is an article of the breach of our peace. 
 The substance of this plea consists in two things, to 
 wit, in the taking and in the detaining; and forasmuch 
 as one may take, and another detain, it is necessary 
 that both be named in our writ. And because he who 
 wrongfully detains, does a greater injury than he who 
 wrongfully takes, the principal burden of the answer 
 shall in such case fall upon the detainers. Naatn^ is a 
 general term for cattle, chattels, and for all other 
 movable things which may be taken by way of dis- 
 tress. 
 
 3. When any one, finding himself aggrieved by a 
 wrongful detaining of his cattle or of his chattels, shall 
 have obtained our writ to his sheriff, and found pledges 
 to prosecute his plaint, let the sheriff immediately go 
 or send some known bailiff to the place where the 
 plaintiff says the distress is detained ; and when the 
 sheriff or his bailiff come there, let him demand a view 
 of the beasts or chattels whereof the plaint is made. 
 And if he cannot have a view by reason of disturbance 
 from any detainer, or other person, whereby he cannot 
 discharge the duty of his office, let him immediately 
 raise the hue and cry, and cause all the disturbers to 
 
 1 The vee (from the old French vier or veer, Latin vetare) was 
 the refusal to deliver the distress upon offer of surety. See be- 
 low, s. 6. 
 
 2 Naam (Anglo-Saxon, name, from niman, German, nehmen, to 
 take), a seizure, or taking.
 
 I, *55.] OF DISTRESSES. 115 
 
 be apprehended and kept safely in prison, so that they 
 may not be set at liberty without our leave, for the dis- 
 turbance of our peace. And if the beasts are shut up 
 within a house or within pound, or if they are driven 
 out of the county, or if the bailiff meet with other 
 disturbance, let him immediately cause beasts of the 
 deforcer to be taken to the extent of double the value 
 by way of withernam, 1 and keep that distress without 
 permitting it to be replevied, until the distress eloined 
 be brought back. 
 
 4. If the taker or detainer admit the bailiff to view, 
 and avow the thing distrained to be his property, so 
 that the plaintiff has nothing therein, then the juris- 
 diction of the sheriff and bailiff ceases. And if the 
 plaintiff is not a villain of the deforcer, let him im- 
 mediately raise the hue and cry ; and at the first county 
 court let him sue for his chattel, as being robbed from 
 him, by appeal of felony, if he thinks fit to do so. 
 
 5. When the sheriff and the bailiffs have had the view 
 of the distress without disturbance, the distress shall be 
 delivered to the plaintiff ; and the sheriff or bailiff 
 shall give a day to the parties at the next county court. 
 At which day no essoin shall be allowed against the 
 plaintiff, since this suit, like disseisin, is nearly con- 
 nected with robbery ; but if the defendant makes 
 default, the distress shall be adjudged to the plaintiff, 
 and the distrainor in mercy. If the plaintiff does not 
 come at the day nor cause himself to be essoined, and 
 
 the defendant offers himself and demands judgment of 
 
 <x 
 1 Withernam, Anglo-Saxon, tower-name, a counterdistress.
 
 116 BKITTOX. [f, *55 I. 
 
 the nonsuit of the plaintiff, let it be awarded that the 
 defendant have the distress returned, and that the 
 plaintiif and his pledges to prosecute be in mercy. 
 
 6. When both parties appear in court, the plaintiff 
 shall set forth his plaint, that ' whereas he had his 
 beasts, to wit two oxen,' or two cows, or two horses, 
 or such chattels, according to the nature of the distress, 
 ' on such a day in such a year of our reign, in such a 
 township,' or in such a certain place, ' there came 
 such an one (the detainer) and took the same beasts 
 there found,' or ' caused them to be taken by such a 
 one,' or ' by other persons unknown, and drove them 
 away.' or ' caused them to be driven away, from the 
 same place, to another place, and there came the plain- 
 tiff, and demanded to have his cattle quietly, and could 
 not have them, and afterwards tendered security for 
 the sake of peace, and offered pledges to appear in his 
 court or elsewhere to stand to justice, if he had any 
 demand to make against him, and yet he wrongfully 
 against gage and pledge detained them, or caused them 
 to be detained, until the same beasts were delivered by 
 the sheriff ; this wrong did he to him, and this distress 
 against gage and pledge wrongfully him refused,' and 
 if he did him any other injury, it should be assigned, 
 ' to his damages of a hundred shillings,' or more or 
 less, according to what he shall have suffered, ' against 
 the peace, and if the defendant do deny the same, 
 he has good suit.' 
 
 7. Then let the defendant answer, and defend * the 
 wrong and force, and the breaking of the peace, and the
 
 I, *5fi.] OF DISTRESSES. 117 
 
 tortious taking, and the tortious detaining, and the 
 refusal of the beasts aforesaid, and the damage of a 
 hundred shillings,' or more or less as the plaintiff shall 
 have counted against him, ' and this he will defend 
 where and when he ought so to do.' 
 
 8. When he has thus defended himself, let him try 
 if he can aid himself by exception against the judge ; as 
 for example, if the detaining was not done in the juris- 
 diction of the judge, and afterwards by exception against 
 the person of the plaintiff, and afterwards against his 
 own person, and then to the writ, as, if the writ was 
 obtained before the day of the taking mentioned in 
 his plaint. Also, if there are several plaintiffs, who 
 are named together in the writ, and they have com- 
 plained in common where the cause of action is several, 
 the writ fails. He may afterwards aid himself by ex- 
 ceptions to the action ; and he may answer to the tak- 
 ing in several ways, and may defend tlnevee by his law ; 
 but if the plea is removed out of the county court, 
 this proceeding shall not be allowed to the defendant ; 
 but although he can justify the taking, nevertheless he 
 shall answer concerning the vee and the tortious de- 
 tainer, which is an article committed against our peace, 
 of which none may acquit himself by his law, for to 
 refuse gage and pledge is a total renunciation of our 
 peace. 
 
 9. Or he may avow the taking and detaining as 
 rightful, ' for that on the same day he found the said 
 beasts in his meadow,' or in his corn or elsewhere, * to 
 his, damage, in such a vill, and he according to the
 
 118 BRITTON. [I,*56J. 
 
 law and custom of the realm caused those beasts to be 
 driven to his house in the same vill, and there detained 
 them until due amends should be made him for the 
 damage aforesaid, or until pledges should be tendered 
 to him for a reasonable satisfaction, so that he never 
 refused him the beasts in any other manner ; ' and of 
 this he may tender averment by the county. 
 
 10. To this the plaintiff may answer by way of 
 replication, and say that he * tendered him pledges to 
 make satisfaction, and to appear in his *court, and to 
 make him due amends by the award of neighbours; 
 but he not complying with reason and right, refused 
 him the beasts, as he hath before alleged in his plaint.' 
 To this the defendant may answer by way of triplica- 
 tion, and admit that the plaintiff tendered him pledges, 
 but not distrainable to him ; and if the plaintiff cannot 
 prove the contrary, let the distress be awarded back 
 to the defendant, and the plaintiff in mercy for his 
 wrongful plaint. 
 
 11. And also as to what the defendant says, that 
 he took the beasts doing him damage, it may be 
 answered by the plaintiff, that he tendered pledges to 
 make amends for his damages, but when the damage 
 was to have been shown, the defendant could not show 
 or assign any damage, and thereof he may tender 
 averment ; or he may say that concerning satisfaction 
 for those damages, they referred themselves to the 
 arbitration of such and such persons, who awarded 
 that no damage was done ; or that he made him some 
 settled amends for the damages, and thereof found
 
 I, *5T.] OF DISTRESSES. 119 
 
 pledges, and thereupon he may tender averment. And 
 according as the truth shall be found, judgment shall 
 be given for the one or other. 
 
 12. When the taking and detaining are made by 
 other bailiffs than ours, and the plaintiff has obtained 
 his writ against the bailiffs jointly with the lords, in 
 such case the lords may either avow or disavow the 
 act of their servants ; and the plea shall be pleaded 
 accordingly. *If the writ be obtained against the 
 bailiffs only, in such case we will that each shall answer 
 for his own act, if the act was done in the absence of 
 the lords ; but if the lords come before judgment, and 
 are willing of their own accord to warrant the acts 
 of their bailiffs, the lords shall be charged with the 
 acts of their bailiffs, and the bailiffs discharged. 
 
 13. Another answer of the defendant may be by 
 avowing the taking and detaining as ' good and rightful, 
 inasmuch as the plaintiff is his tenant and is in arrear 
 for relief,' or suit at his court or other service, ' for 
 the tenement which he holds of him, so that whenever 
 the plaintiff would have performed to him what was 
 in reason due, or to that end would have found reason- 
 able security by pledges, he would have delivered to 
 him his cattle.' To which the plaintiff may reply, that 
 for every taking and detaining for service, three things 
 ought to be assigned in order to render the taking 
 reasonable, to wit, a certain place, out of which the 
 service ought to issue, a certain cause for which the 
 taking was made, and a certain seisin, unless the dis- 
 trainor can show a deed warranting him to distrain
 
 120 BlilTTON. [I, *57 b. 
 
 per my et per tout wheresoever he please, when his rent 
 shall be in arrear, although he have no fee. If the 
 defendant in his defence has omitted any of these three 
 *points, and the plaintiff demands judgment against 
 him as being undefended, judgment shall be given for 
 the plaintiff. And if the defendant counts of any 
 seisin, and the plaintiff denies it, the point shall be 
 verilied by the country, and judgment be given ac- 
 cording to the verdict. 
 
 14. Where the defendant assigns the taking and 
 detaining to be rightful on account of service in arrear, 
 and in particular for relief, the plaintiff may answer 
 that he tendered him his homage, and that he would 
 not then take it ; whereupon he may demand judgment 
 whether he was obliged to perform any service to him, 
 or to acknowledge him for his lord, until he had taken 
 his homage and accepted him as his man. And if the 
 plaintiff can aver it, let it be adjudged against the de- 
 fendant. For relief and other services due from any 
 tenement held by knight's fee, are things accessory to 
 homage, which is the principal, and, the principal ceas- 
 ing, the accessories ought of right to cease. 
 
 15. Another answer of the defendant may be by 
 avowing the taking and detaining as rightful, and 
 assigning it to be for reasonable aid, to make his eldest 
 son a knight, or to marry his eldest daughter. To 
 which the plaintiff may reply, and say, that what he 
 has assigned ought not to avail him, inasmuch as he 
 is not a knight himself, or inasmuch as he has no son 
 or no daughter ; or inasmuch as the one or the other
 
 1, *58.] OF DISTRESSES. 121 
 
 is not yet of age to receive the order of knighthood, 
 or to consent to a husband ; or inasmuch as the plain- 
 tiff did before pay his reasonable contribution towards 
 such aid to the same *lord. And if one or more of 
 these answers be averred, it shall be adjudged for the 
 plaintiff, unless the defendant can prove the con- 
 trary. 
 
 16. When the defendants avow the distresses and 
 detainings to be made upon the plaintiffs as upon ten- 
 ants for arrears of rent or other services, and the plain- 
 tiffs disavow them for their lords, let it be awarded 
 that the lords in such case be in mercy, and that the 
 plaintiffs have their cattle quietly delivered to them 
 and recover their damages ; and the lords shall have 
 their action to recover the tenements in demesne, ac- 
 cording as shall be mentioned in the chapter upon 
 Homage. 
 
 17. And if the lords assign that the taking and de- 
 taining was for the arrears of some service issuing 
 out of a tenement which the plaintiffs hold, and the 
 plaintiffs be enfeoffed by any to hold of those who are 
 mesne between them and the chief lords, the tenants 
 will then have the right to be acquitted by the mesnc 
 tenants, who are their lords, as against the chief lords 
 distraining, according as such mesne tenants are bound 
 by their charters of feoffment. And if they will not 
 acquit them of their own accord, let the plaintiffs be 
 aided by our writs of Warranty of Charter, and of 
 Mesne, and by proclamations, according to the ordi- 
 nance of our statutes.
 
 122 BKITTON. [I, *58 I. 
 
 *18. When the mesne tenants shall appear in court 
 and enter into warranty and acquittance against the 
 lords, then let the original pleas cease, and the pleas 
 of warranty commence ; wherein the mesnes may an- 
 swer several ways. For they may disavow holding of 
 them, or say that the tenements where they took the 
 distresses are not of their fee ; which answers being 
 verified, let it be adjudged for the first plaintiffs 
 against the lords. 
 
 19. The mesnes may also aid themselves by ex- 
 ceptions against the tenants ; for they may demand 
 whether the plaintiffs have anything whereby they are 
 held and bound to acquittance. And if the plaintiffs 
 cannot produce charter or writing binding them, let it 
 be adjudged against the plaintiffs. But if the pleas 
 were removed out of the county, so as to be before 
 our justices, and their charters have been burned or 
 stolen, and they allege the same in court by way of 
 exception, the truth shall be inquired by the country, 
 and according to the verdict of the inquest, judgment 
 shall pass in favor of the mesnes or of the plaintiffs. 
 Or if any writ of Mesne is obtained against one par- 
 cener which ought to be sued out against all the par- 
 ceners, where all are bound to acquittance as one heir 
 by their common ancestor, the writ is abatable for 
 error in the obtaining of it, and so in all real pleas. 
 And also any mesne may say by way of exception, 
 that he is not bound to acquit his tenant, because the 
 same tenant never performed to him homage, fealty, 
 or other service; and if this be verified, and that the
 
 I, *59.] OF DISTRESSES. 123 
 
 ^default was in the tenant, it shall be adjudged against 
 the plaintiff. 
 
 20. Again, the defendant may avow the taking and 
 detaining to be rightful, and assign that he did it by 
 judgment of his court, and thereof he may vouch his 
 court to warranty, and in particular for a plaint made 
 against the plaintiff by such an one his neighbour, who 
 found security to prosecute his plaint, to which plaint 
 the same plaintiff was summoned to answer at a cer- 
 tain day, at which day he neither came nor was es- 
 soined, wherefore the court awarded at the suit of the 
 plaintiff, that he who now is plaintiff should be dis- 
 trained to come to the next court, until he would sub- 
 mit himself to justice by law. If the plaintiff, as to 
 the matter alleged, is willing to put himself upon the 
 record of the court, the defendant shall cause the rec- 
 ord thereof to be brought into court, and if the 
 record make for the defendant, a return of the cattle 
 shall be awarded to him, and the plaintiff in mercy 
 for his false plaint. But if the record make for the 
 plaintiff, let it be awarded that the plaintiff have his 
 distress free, and recover his damages, and the defend- 
 ant be in mercy. And if false judgment or erroneous 
 proceedings be found in the record, and the action be 
 in the county, we will not that the sheriff or suitors 
 have cognizance thereof; but he who shall find him- 
 self aggrieved shall make his complaint, and cause the 
 proceedings and the record to be brought by our writ 
 before our justices of the Bench at "Westminster, and the 
 error shall be there redressed, if any be found therein.
 
 124 BRITTOK [I, *59 b. 
 
 *21. If the plaintiff acknowledge the distress to be 
 made by award of the court of the defendant, he so 
 far admits the taking to be legal ; but if he further say 
 that, when he tendered him pledges to appear in 
 his court, and there to submit to justice according to 
 law, the defendant rejected such plevin, and refused to 
 permit him to replevy the distress, and if the defendant 
 deny it, averment shall be made, and according to the 
 verdict, it shall be adjudged for one party or the 
 other. 
 
 22. If the plaintiff complain only against one, and 
 has by his plaint made him both taker and detainer, 
 and in evidence of this produces suit ; in such case the 
 defendant may deny the taking, and if the suit on ex- 
 amination be found to disagree, let it be adjudged for 
 the defendant, and the plaintiff be in mercy for his 
 false suit. If the suit be found to agree, then the de- 
 fendant may defend the taking by his law against the 
 plaintiff and his suit ; and if he tenders his law to the 
 plaintiff and he refuses it, it shall be adjudged against 
 the plaintiff, and so in the reverse case. If the plain- 
 tiff accepts it, a day shall be given to the defendant, 
 that he come that other day to perfect his law with 
 his twelve co-jurors ; at which day he may be essoined 
 from making his law, and the plaintiff may also be 
 essoined. But if either make default, it shall be ad- 
 judged against the absent party. If the defendant has 
 not fully twelve co-jurors, or any of them are refusable 
 upon good exception, as by the exception that he is a 
 villain, or excommunicated, or has been attainted of
 
 I, *60.] ' OF DISTRESSES. 125 
 
 '* per jury, or condemned to the pillory, let it be adjudged 
 for the plaintiff, and the defendant. in mercy, inasmuch 
 as he has failed in performing his law. 
 
 23. If the plaintiff say that the defendant designedly 
 absented himself, in order not to be found where 
 pledges might be tendered to him ; or if he say that he 
 tendered pledges to his bailiff, such a one by name, 
 and he would not deliver them, because his lord had 
 forbidden the deliverance ; in both these cases defence 
 by law lies, if the plaintiff has his suit agreeing therein. 
 But if he has no suit, or such as do not agree, then it 
 will be unnecessary for the defendant to wage law 
 against the sole word of the plaintiff ; but it shall be 
 adjudged against the plaintiff. For we will that none 
 be obliged to wage law against another without prop- 
 er suit produced upon the point. And if the plaintiff 
 would complain of the bailiff in respect of the refusal, 
 the contest shall be between the plaintiff and the 
 bailiff. 
 
 24. Where the defendant avows the taking and de- 
 taining to be justifiable on account of service which 
 was in arrear for a tenement in such, a vill, which the 
 same plaintiff holds, and whereof he was himself seised 
 or some other his ancestor by the hands of the plaintiff 
 or other certain tenant, since the time limited in assise 
 of novel disseisin, if the plaintiff cannot deny the sei- 
 sin, let it be adjudged for the defendant. For we will 
 not have it tried by such writ, whether the seisin has 
 been rightful or tortious ; but the tenant may procure 
 by our writ, that his lord do not demand of him other
 
 126 BItlTTOtf. [I, *60 b. 
 
 "*ser vices or other customs than he ought of right to do 
 to him ; so that if he is aggrieved by the possession, it 
 is our will that he shall procure his remedy in the 
 right ; and that every writ shall have its proper nature, 
 and one shall not be pleaded by means of another. 
 
 25. Another plea of the defendant may be, ' that he 
 took and detained the cattle rightfully, and by reason 
 of a soil which was his several, in the which he found 
 the same cattle feeding several times, and from the 
 which he had often warned the plaintiff to turn them 
 out, and he nevertheless sent them in another time 
 contrary to his prohibition, and he was always ready 
 to deliver them, if the plaintiff had been willing to ab- 
 stain from doing those wrongs, and thereof to have 
 found surety, whereas the plaintiff never would do so.' 
 To this the plaintiff may reply, that ' the defendant 
 wrongfully took them and wrongfully detained them, 
 because the pasture of the same soil is his common, and 
 his common ought to be where he and his ancestors 
 have always had common, and this he is ready to ver- 
 ify, where and when he ought.' And because he would 
 not deliver the beasts quit, the plaintiff might by 
 means of this writ recover title of common and free- 
 hold, where peradventure he had never any right of 
 common, if an inquest were to decide in his favour ; l 
 
 1 This passage is obscurely expressed. If we understand it as 
 implying that the inquest upon the title to common is taken in 
 the action of replevin, it is contrary to the general rule, that a 
 title to freehold is not to be tried in such an action (see before, 
 s. 24) ; and is contradicted by the parallel place in Fleta, where
 
 I, *6L] OF DISTRESSES. 127 
 
 *in such case it is our will that the cattle remain with 
 the plaintiff, and the defendant be in mercy ; and if 
 the plaintiff will still be a commoner and claim a free- 
 hold of common, the defendant shall have his remedy 
 by our writ of Novel Disseisin if he thinks fit to pur- 
 sue it. 
 
 26. Such as shall be convicted of taking a distress 
 beyond the value of their demand, although they have 
 avowed the cause of their distress to be legal, shall 
 nevertheless be in mercy for the excess. And if any 
 one has made a double distress for one demand, and in 
 particular, after the deliverance of the first distress, 
 pending the plea concerning the first taking, in such 
 case the plaintiff shall be entitled to our writ, to cause 
 his cattle to be delivered, and the distrainor shall 
 be bound by gage and pledge to be before us or our 
 justices at a certain day to answer for such trespass com- 
 mitted against our peace. Whosoever shall be con- 
 victed of this offence, damages shall be first awarded 
 to the plaintiff, and afterwards the distrainor shall be 
 punished by imprisonment and fine ; or in such cases 
 
 it is expressly said, that the sheriff upon such a plea has 110 
 power to proceed further. (Fie. 101, 24.) Yet this construction 
 appears to be adopted by the commentator in MS. N, who says : 
 ' par cas poet il recoverir title de franc tenement parmi verdyt 
 en le replegiari, tot seit ceo a tort.' I should rather suppose that 
 the sense of pur ceo qe in the beginning of the sentence ought to 
 be repeated, and that the true translation would be, ' And be- 
 cause, on account of the non-delivery of the beasts, the plaintiff 
 might recover title of freehold, &c. ; therefore it is our will in 
 such case, &c.'
 
 128 BRITTOK [I, *61 1. 
 
 we will command our sheriffs, *that if they find such 
 trespasses to be committed against our peace, they shall 
 speedily inflict such punishment by imprisonment of 
 the trespassers and by heavy amercements, that others 
 by their example may be corrected in like cases. 
 
 CHAPTER XXIX. 
 
 Of Debt. 
 
 1. IN county courts also before our sheriffs and the 
 suitors, and in hundred courts, and in courts of freemen, 
 pleas of trespass and debt may be pleaded without our 
 writs, 1 simply by gage and pledge, provided that 
 neither the goods carried away in trespass nor the debt 
 demanded exceed forty shillings ; except trespass of 
 mayhems and wounds, and inprisonment, and batteries 
 committed against our peace. For we will that no 
 one have cognizance or jurisdiction to hold pleas of 
 such complaints, nor of other trespasses for goods 
 
 1 The following note explains some of the disadvantages of 
 proceeding in the inferior courts : ' In pleas commenced by 
 plaint, issue cannot be taken by averment of the country, but 
 only by suit or proof. And although there may be jurisdiction 
 in the county court or in the court of a liberty, extending to ten, 
 twenty, or thirty pounds, still it is more advantageous to plead 
 in Bank by the prcecipe quod reddat, on account of the fieri 
 facias which follows by statute. But the sheriff or bailiff lias no 
 power to levy the debt out of the lands and chattels, though he 
 has power to distrain by virtue of execution of judgment.' 
 .(Note in MS. N.)
 
 I, *62.] OF DEBT. 129 
 
 carried away beyond the value of forty shillings, or of 
 debts exceeding the same sum, without our writs ; 
 which writs shall sometimes be pleaded in the county 
 court, and in franchises, unless removed therefrom by 
 our precept, and sometimes elsewhere before our jus- 
 tices; and we will that great trespasses be pleaded be- 
 fore ourselves. 
 
 2. An obligation is a legal bond, whereby a person 
 is bound to give or do anything, and thus it is the 
 parent of an action, and takes its origin from some 
 precedent trespass or contract. *An obligation by con- 
 tract may arise in many ways by the united consent 
 of the parties ; which consent is sometimes naked and 
 without clothing, and sometimes clothed. From a 
 naked obligation no action arises, except by common 
 assent ; it is necessary therefore in every obligation 
 that it be clothed. An obligation should be clothed by 
 five incidents, by a material thing, by words, by writ- 
 ing, by unity of will, by delivery, by relation. 1 
 
 3. It is clothed by a material thing, when anything 
 is lent and borrowed, to be restored on a certain day ; 
 and by such loans the debtors are bound to restore to 
 the creditors the things borrowed in as good or better 
 condition than they received them, or else their value, 
 unless by accident of fire, water, robbery, or larceny, 
 they have lost them ; for against such accidents no one 
 
 1 Our author gives no explanation of the meaning of joynture. 
 The word is borrowed from Bracton, where it appears to be used 
 to denote the connection of several contracts relating to the 
 same subject matter. (Brae. 99, 100 b ; Fie. 128, c. 60, 2.) 
 9
 
 130 BRITTON. [I, *62 b. 
 
 ought to answer for things lost, unless they happened by 
 his own fault or negligence. But if a debtor carries 
 money about him and foolishly shows it among thieves, 
 and is robbed of it, it does not follow that he is not 
 bound to the creditor ; because he did not use his dili- 
 gence to keep the money, for he might have taken better 
 care of it. 
 
 4. The second kind of clothing is by words passing 
 between the creditor and debtor, by which they come 
 to an agreement by offers and stipulations. 
 
 5. The next incident is by writing, which may be 
 pure and simple, and without day or condition ; in 
 which case the creditor may demand tae thing pres- 
 ently or whenever he pleases. *But if a day of pay- 
 ment be specified in the writing, the debtor is not bound 
 to pay before the day, and when the day arrives, it is 
 sufficient if he makes the payment any time of the day, 
 for the debtor has the whole day; and likewise it is 
 with regard to a certain year, or a certain month, named 
 in the writing, if no certain day be specified. Also, 
 the writing may be conditional, and will or will not 
 take effect, according as shall be mentioned below con- 
 cerning conditional purchases. But whatever the condi- 
 tions may be, no writing or obligation shall be binding 
 as a conditional contract, if the condition be impossible 
 or unlawful. Impossible, as in this case, if you will 
 procure me the moon, I will give you ten shillings. 
 Unlawful, thus, if you kill such a man, I will give you 
 ten shillings. Yet in the negative such conditional 
 obligations would hold good, thus, if you do not pro-
 
 I, *63.j OF DEBT. 131 
 
 cure me the moon, or if you do not kill such a man, I 
 will give you ten shillings. And if the debtor binds 
 himself in any allowable and innocent penalty, the 
 penalty shall stand, for the debtor was willing when he 
 bound himself thereto, and no injury is done him against 
 his will. 
 
 6. The next incident is unity of will and consent ; 
 and this is mentioned with reference to those who know 
 not how or are not able to consent, as the deaf, 1 and 
 the mad, and mere idiots, and infants in their tender 
 age, and lunatics and frantic persons during their fury, 
 and *married women, and persons in religion removable 
 by their superiors of the same order, 2 and those who 
 are compelled to bind themselves, and pure villains. 3 
 
 1 Brae ton admits, that a deaf man may contract by writing ; 
 so also Fleta. See the passages referred to in the margin above. 
 
 2 Among the statutes of the Benedictine order, confirmed at a 
 council of the heads of the order in England, A. D. 1249, is the 
 following : " Nullus monachus obedientiarius vel claustralis det 
 aliquid vel suscipiat absque licentia sui superioris." (Matth. 
 Paris. Addit. p. 1096.) By the same regulations no prior or other 
 officer or obedientiary was to be appointed for life, but all were 
 to be subject to removal, (ib. 1096, 1098.) See Littleton, Ten. 
 s. 200. 
 
 3 A villain might acquire property real or personal, and his 
 acquisitions enured to the benefit of his lord, if the latter chose 
 to take them ; but the villain while in possession could make a 
 good title to a stranger. See li. ii. c. 7. s. 1 ; Brae. 25 b. It fol- 
 lows from s. 25, below, p. 139, that debts and executory con- 
 tracts could not be enforced against a villain pleading his own 
 villenage. But no reason appears why a contract should not 
 have been enforced by a villain against a third party, if the rule
 
 132 BRITTON. [1, *63 5. 
 
 With such persons no contract or obligation is bind- 
 ing. 
 
 The next incident is delivery, which is an induction 
 of the thing into possession with the consent of the 
 creditor, as shall be mentioned concerning such induc- 
 tions in treating of purchases after gifts. 
 
 8. When any one will sue for a debt within the sum 
 of forty shillings, or for any small trespass, first, let 
 him find security to the sheriff to prosecute his plaint, 
 if he will proceed in the county court, or to some 
 bailiff, according as he chooses to proceed in the hun- 
 dred court, or in a freeholders' court. And let the 
 debtor be summoned to be at the next court to answer 
 the plaintiff upon such demand as he has made against 
 him, so that he have reasonable warning to answer the 
 demand of the plaintiff. 
 
 9. Upon the day named in the summons both parties 
 may be essoined ; but if the debtors or any persons 
 against whom a plaint of trespass is brought without 
 our writ shall make default whether such default be 
 before essoin or after, it shall be awarded that they be 
 distrained by their cattle or by their chattels to be at the 
 next court. And iftheymakedefaultanothertime.it 
 shall be awarded that the first distress *be retained, and 
 u fresh one taken, and so from court to court, and that 
 they may not replevy the beasts, until they find pledges 
 
 generally held, that an exception of villenage against the person 
 of the plaintiff could only be pleaded by his lord. Compare be- 
 low, li. ii. c. 18. ss. 2, 5 ; Brae. 193 6, 196 6, 197 ; Hengham P. c. 
 8. p. 103 ; Littleton, Ten. s. 189.
 
 I, *64.] OF DEBT. 133 
 
 to answer the plaintiff. In plaints of trespass no sum- 
 mons shall be made, but they shall be distrained on the 
 first day. And if the plea be removed before our jus- 
 tices, the grand distress shall take place, and the sheriff 
 be charged to answer for the issues, as above mentioned 
 in the chapter of Attachments. 
 
 10. And when the defendants come to have their 
 distresses delivered, let them find pledges to answer at 
 the next court, and to return the distresses if they do 
 not appear, and then let the distresses be delivered. At 
 which day, if they do not appear, let it be awarded 
 that the pledges be summoned to be at the next court, 
 to show why they did not produce those for whom 
 they were pledged according to their undertaking ; 
 and whether they come on the day on which they are 
 summoned or not, let them be amerced ; and they 
 shall have their recovery against those whom they 
 pledged, for not acquitting them of their suretyship, as 
 they ought to have done. The defendants shall then 
 be distrained again to come and answer to the plain- 
 tiff, and these distresses shall remain irreplevi sable 
 until they have answered. 
 
 11. When any defendant shall be found in court, 
 *after he has been attached, let him immediately an- 
 swer, or be treated as undefended, whether he has be- 
 fore made default or not ; and when he has answered, 
 then and not before let the distress be delivered to him. 
 This shall be done upon presumption of his malice, in 
 that he was not willing before to find pledges to be 
 amenable to justice.
 
 134 BRITTON. [1, *64 1, 
 
 12. When the parties shall have appeared in court, 
 then let the plaintiff open his plaint, and say that ' the 
 defendant wrongfully detains from him and does not 
 render to him twenty shillings, which he lent him on 
 such a day in such a year in such a town, in ready 
 money, and which money he ought to have rendered 
 to him on such a day following in the same year, and 
 the said money did not render, but detained the same 
 wrongfully and to his damage of ten shillings, and if 
 he will deny it,' then the plaintiff may tender suit. 
 
 13. To this the defendant must answer and defend 
 the wrong and force, and the debt and the damages. 
 And as an obligation is contracted in divers ways, so 
 likewise it may be defended ; hence the debtors may 
 aid themselves in many ways by exceptions. Where- 
 fore Jet the defendant aid himself by exceptions, if 
 there be any which can avail him. Among the rest, 
 he may demand whether the plaintiff has anything 
 from him, whereby he has bound himself to render 
 that debt ; and if he produces a tally, or a suit, and the 
 suit is found to agree, then he may deny the debt by 
 his law, and in that case the proceedings are the same 
 as are before mentioned in the chapter on Distress. 
 
 14. If the plaintiff produces a writing, the defendant 
 may answer thereto in several ways ; *for he mav 
 deny the writing, and tender averment by the country 
 that the same is not his deed. And if the plaintiff 
 prays the averment, then let the truth be inquired by 
 means of the witnesses named in the writing, when 
 there are any or by the country.
 
 I, *64 5.] OF DEBT. 135 
 
 15. Or, if the writing be the deed of his ancestor, he 
 may demand judgment of the writing, whether he is 
 bound to answer to that writing for the debt of his an- 
 cestor, whereas there is no mention made in the writ- 
 ing of his being obliged to the payment thereof. For 
 in this case we will that none be bound to pay the 
 debt of his ancestor, whose heir he is, to any other but 
 to us, unless he be thereto especially bound by the deed 
 of his ancestor. 
 
 16. Or he may say that the writing ought not to 
 affect him, for when he made it he was under the age 
 of ten years ; 1 and if this be verified, let it be adjudged 
 against the plaintiff. 
 
 IT. Or he may plead, that this writing ought not to 
 affect him, for at the time of it being made he had 
 lost his seal, and caused it to be cried and published 
 at the churches and markets, so that if anything was 
 made under that seal after a certain day on which it 
 was lost, it ought not to affect him ; and in such 
 manner he may deny the deed, 2 and thereupon let the 
 
 1 The age under ten years appears to be selected merely as an 
 example of pleading in a particular instance, with no reference 
 to any especial disability connected with that age. 
 
 2 There is an entry in MS. M. of an assise of novel disseisin 
 concerning land at Thorley, between William de Gerburg and 
 William de Clifford and others, which appears to belong to the 
 nd of the reign of Henry III or the beginning of Edward I, in 
 which this defence is set up against the deed of Arnald de Thor- 
 ley under which the demandant claimed. The jury found, 
 ' quod praedictus Arnaldus amisit sigillum suum, et si aliqua 
 carta vel scriptum ab ilia hora in posterum proferatur sigillatum
 
 136 BKITTOK [I, *66. 
 
 truth be inquired by the neighbourhood where the deed 
 is supposed to have been made, and according to the 
 verdict of the country, let him who shall be found to 
 have been guilty of falsehood be adjudged to prison, 
 and punished by fine. 
 
 18. And if the deed was not made within our juris- 
 diction, so that the truth *cannotbe inquired by us, the 
 proof shall be left to the plaintiff, so that if he can 
 prove the contract by good witnesses, it shall be ad- 
 judged in his favor. These exceptions shall have 
 place in our court and before our justices ; for in county 
 courts and other petty courts no one can prove a foreign 
 contract, if it is denied. 
 
 19. If there is in the writing any erasure in the 
 number or in proper names, or in the date, or day of 
 payment, or if there be other signs of falsification in 
 it, as diversity of hands or of ink in the writing, or if 
 the seal be so attached that it may be taken off and 
 put on again by contrivance, then the defendant may 
 
 praedicto sigillo, quod pro nullo haberetur. Et dicit, quod 
 praedicta carta et scriptum facta fuerunt tempore quo praedictus 
 A. amiserat praedictum sigillum ; unde dicit praecise quod licet 
 prsedicta carta et scriptum signatum fuit de sigillo suo, unquam 
 de voluntate praedicti Arnaldi facta fuerunt.' Fortunately the 
 demandant had also pleaded an acknowledgment of the deed by 
 Arnald de Thorley before Gilbert de Preston and his companions. 
 Justices Itinerant in the county of Hertford, 39 Hen. Ill, and as 
 to this fact had vouched the rolls of the said Iter. ' And because 
 the said William had put himself as well upon the rolls of the 
 said Iter as upon the assise, the trial was adjourned.' Upon the 
 subsequent day the acknowledgment to Arnald was found upon 
 the rolls, and the plaintiff obtained judgment.
 
 I, *66 1.] OF DEBT. 13T 
 
 demand judgment whether he is bound to answer to 
 such a defective deed ; in which case we will that 
 judgment be given against the plaintiff for the great 
 presumption of fraud. 
 
 20. Or he may say that the writing ought not to 
 affect him, because it was made at a time when the 
 defendant was in prison ; which answer must either 
 be allowed or disallowed, according as fear or force was 
 used against him in prison, as above mentioned in the 
 chapter upon prisoners. Or he may say that the writing 
 ought not to affect him, by reason that he executed it 
 when he was not in his right senses. This exception 
 shall hold in the case of madmen and those who have 
 lost their memory by sickness or any *other pain ; but 
 not in the case of drunkards, or of such as are light- 
 headed, although they may sometimes not be in their 
 right mind. 
 
 21. Or he may say, that the deed ought not to affect 
 him, because the plaintiff was once his steward, or his 
 chamberlain, or in other service with him, and on ac- 
 count of the great confidence which he had in him, he 
 delivered him his seal to keep, and while he had it in 
 his custody he caused the said deed to be made without 
 his privit} 7 . Inasmuch as he thus in part acknowledges 
 the deed to be his, it shall be awarded for the plaintiff ; 
 and let the defendant provide himself for the future 
 with one who will keep his seal safer. And he shall 
 have his action of treason against the plaintiff by 
 appeal of felony, if he pleases ; which action must be 
 prosecuted within a year and a day from the time when
 
 138 BKITTON. [I, *67. 
 
 he first knew of that writing ; or if he will not sue by 
 appeal of felony, he may bring his suit in form of 
 trespass. For if the exception were tried by an inquest, 
 and given against the plaintiff, he would be punished 
 as in form of trespass, and the felony would remain 
 unpunished. 
 
 22. Or he may say that the deed ought not to affect 
 him, because it was made on condition, so that if the 
 plaintiff had performed the condition, then he would 
 have been bound to him. *But in proof of this he must 
 show some writing of the plaintiff or enrollment in court 
 of record, in default of which the plaintiff may defend 
 the condition by his law, and recover the demand 
 against the debtor. And if he produce a writing con- 
 taining the condition, which the plaintiff cannot deny, 
 it shall be tried, whether the plaintiff has performed 
 the condition or not, and this not by rigour of law, but 
 by means of the exception, and according as shall be 
 found concerning the satisfaction of the condition it 
 shall be adjudged for one or the other. For rigour of 
 law would require that one action should not be tried 
 by another, any more than one question can be resolved 
 by another. But if the condition is contained in the 
 writing produced by the plaintiff, in such case there 
 shall not be two causes of action. 
 
 23. Or the defendant may allege payment, and show 
 an acquittance. 
 
 24. Or, if the debt is demanded against him as a 
 surety, and he demands judgment, whether he ought 
 to answer for the debt so long as the principal debtor
 
 J, *67.] OF DEBT. 139 
 
 is capable of doing so, this exception shall be allowed 
 to the defendant, if the cause be true. But if the 
 principal debtor and the pledges are bound each for 
 the whole severally, then the exception shall not be 
 allowed, but judgment shall go for the plaintiff, and 
 the surety shall have his action and his recovery over 
 against the principal debtor. And if pledges are 
 jointly bound, and the demand is made severally against 
 one, when there are more than one, and this pledge 
 demands judgment whether he ought to answer sever- 
 ally for the joint obligation, this exception shall be al- 
 lowed, if the cause be true, and it shall be awarded that 
 the pledge do go without day, and the plaintiff in 
 mercy. 
 
 *25. Or he may say that this deed ought not to affect 
 him, because he is the villain of such a one, by reason 
 of his blood and of his tenement, and was of that con- 
 dition when he made the writing, and whatsoever he 
 has belongs to his lord, so that he has nothing of his 
 own ; and he may demand judgment whether he 
 ought to answer to such contract without his lord. 
 And if the plaintiff cannot deny this, it shall be award- 
 ed that the plaintiff take nothing by his plaint, but be 
 in mercy, and the villain without day. And if the 
 plaintiff brings his plaint against the lord, and the lord 
 demands judgment whether his villain can bind him, or 
 whether he is bound to answer for the personal act of his 
 villain, it shall also be adjudged against the plaintiff. 
 And the like, in case where a married woman is bound ; 
 for- we will not that a wife shall have power to bind
 
 140 BKITTOK [I, *68. 
 
 her husband, or a villain his lord, or any other his su- 
 perior, or a parson his church without the bishop and 
 patron, on account of the mischief which might arise 
 therefrom. 
 
 26. Or he may say, that he is impleaded or appealed of 
 felony, and if he demands judgment whether he ought 
 to answer in a plea of debt until he is acquitted of the 
 felony, and if the cause be true, and the felony be 
 capital, then we will that the exception be allow r ed. 
 
 27. Or he may say, that he was formerly impleaded 
 for the same debt and by the same person in our court, 
 or in another, where he was acquitted by judgment, 
 and the plaintiff in mercy. And if the plaintiff cannot 
 deny this, or if the parties *put themselves upon proof 
 by the record, let it be adjudged according to the 
 record for one or the other. 
 
 28. Or he may plead, that he ought not there to 
 answer concerning this debt, because there is a plea 
 depending concerning the same debt between the same 
 persons in a superior court, or elsewhere in our court. 
 And if the plaintiff cannot deny it, he loses his plaint. 
 
 29. Or, if the debt be issuing out of any tenement 
 as an annual rent payable yearly for term of life at 
 least, and the debtor demand judgment whether he 
 ought to answer concerning frank tenement to a plaint 
 or writ of debt without other writ, in such case we 
 will that the plaintiff take nothing, but proceed by 
 writ of annual rent, or by distress. 
 
 30. If the plaint is before us or before our Steward, 
 then we will that the debtor answer concerning
 
 I, *68 b.] OF DEBT. 141 
 
 every debt for which he shall be found bound to the 
 plaintiff under the distress and jurisdiction of the 
 Steward of our household, wherever the contract was 
 made, whether within our realm or without, and 
 whether the debt be great or small, so as it does not 
 concern frank tenement. And we will that plaintiffs 
 prosecute their plaints before our Steward for such 
 <lebts without our writs, but by simple plaint only, and 
 by finding surety to prosecute the plaints ; and the 
 like of trespasses *and felonies committed within the 
 verge of our household, wheresoever we shall be in our 
 realm ; which verge shall comprise a circumference of 
 twelve miles around our dwelling. 
 
 31. When any one shall be attached and shall appear 
 in court before our Steward, being impleaded of a 
 debt, which debt he cannot deny, let it be awarded 
 that the plaintiff recover his debt, and damages by tax- 
 ation of the court ; and let the debtor be delivered to 
 the Marshal, to be kept at his peril, until satisfaction 
 be made of the plaintiff's demand and of the amerce- 
 ment due to us for the wrongful detainer. And if any 
 debtor is bound by pledges at the commencement of the 
 attachment, or after, and the debtor does not acquit 
 his pledges according as they are bound for him, let 
 the pledges be immediately distrained to satisfy the 
 plaintiff. Nevertheless let earls and barons found 
 within our verge, and the servants of our household, 
 be summoned for debts, before they are distrained or 
 attached by their bodies, the first out of respect for 
 their persons, and the others out of regard for our
 
 142 BRITTON. . [I, *69. 
 
 service. And wherever the Marshal is to execute his 
 attachments, and does not find sufficient distress to the 
 value of the demand of the plaintiff, he shall execute 
 the attachments by the bodies, whether the defendants 
 be clerks or laymen, and safely keep the bodies until 
 they submit to the determination of the law, whether 
 the plaints are for debt, or trespass, or felony. 
 
 *32. And we will that none be attached by our 
 marshal, except where the debtors are especially bound 
 by their writing to the jurisdiction of our steward. 
 Such as withdraw themselves out of our verge to avoid 
 being attachable by our marshal, shall, wheresoever 
 thev are again found within our verge, be answerable 
 for their trespasses or felonies committed within our 
 verge, though not in the same place where they are 
 found. If any one, accused before our steward of a 
 trespass or felony, can prove that the fact was not 
 committed within our verge, or that he was not found 
 within our verge when he was attached, in such cases 
 we will that such exceptions be allowed to the defend- 
 ant. Execution of the judgments of our steward, and 
 attachments within our verge shall be made by our 
 marshal, and without the verge by our sheriffs and by 
 virtue of our writs. 
 
 33. A person may be indebted several other ways 
 besides by money borrowed, as by his own recognizance, 
 or by that of his ancestor, who has acknowledged in 
 our court that he was indebted to another in a certain 
 sum of money to be paid at a certain day, and granted 
 that if he should not pay it, the sheriff should levy it
 
 I, *69 &.] OF DEBT. 143 
 
 out of bis lands and chattels. And by virtue of such 
 recognizances made in our court, we will that the lands 
 and heirs of *the recognizers remain bound, whether 
 the heirs are especially mentioned as bound in the 
 recognizances or not ; and not only the heirs, but the 
 lands and tenements of the recognizers, into whoseso- 
 ever hands they come. 
 
 34. Also, as a person may be indebted for money 
 borrowed, so he may likewise be indebted by reason of 
 any movable thing borrowed and not returned at the 
 day ; and of such things the value and damages should 
 be demanded. 
 
 35. And what a person cannot demand of his debtors 
 by reason of their deaths, shall be demanded against 
 their executors ; which demand need not in every case 
 be made against all the executors, but only against 
 such as administer the goods and chattels of the de- 
 ceased. There are however some debts, which shall 
 not be pleaded in our court, or in any lay court, as 
 those arising from testament and marriage, that is to 
 say, concerning chattels left in the possession of the 
 testator, 1 and chattels given as a marriage portion. 
 
 1 The annotator in MS. N. observes upon this, that will and in- 
 tention not carried into act are spiritual matters ; and that the 
 will and conscience of a testator are so obscure and secret that 
 no earthly judge can be certified thereof. For that the law of 
 this land determines nothing that is not open and certain, as 
 where an intention is carried into effect by an act. ' But the 
 king,' he adds, ' hath sometimes cognizance of devises, not of 
 movable chattels, but of tenements purchased in an enfranchised 
 town, as London or Northampton, which may be devised in like
 
 UKITTON. [I. *70. 
 
 But as to chattels of the deceased of which he was not 
 possessed on the day of making his will, such as debts 
 owing to him, and chattels in the hands of others, and 
 also chattels promised and due on account of marriage, 
 of these the cognizance shall belong to our court. And 
 if any debtor die without making any testament, *let 
 those into whose hands the goods of the deceased shall 
 come be answerable for his debts, as is laid down in 
 our statutes of Westminster. But if any person who 
 dies shall simply and without any specialty commit his 
 last will respecting the distribution of all his movables 
 to the disposal of some friend, and such last will can 
 be proved, this shall be a sufficient testament. 
 
 36. When any debt is recovered in our court, judg- 
 
 manner as movable chattels, because burgesses being in trade 
 generally employ (enplaient) the half, or more, of their goods in 
 their houses (herbergage), the purchase whereof they may de- 
 vise, but not their inheritance. The king hath therefore of 
 necessity cognizance thereof as of a thing annexed to freehold. 
 For though the spiritual judge had cognizance of such tene- 
 ments so devised, he would have no power of execution, inas- 
 much as such tenements savour more of freehold, yea and of fee 
 and signiory (oyl e de fee e de sr'), and testament in such case 
 is in lieu of charter. Wherefore such testaments ought to be 
 solemnly proved in the boroughs, as is customarily done in Lon- 
 don, not by proof of the testament, but by proof that the testa- 
 ment hath been proved in court Christian, on account of the 
 disherison done by false testaments.' The writer then gives the 
 form of a writ, addressed to the king's bailiffs of Northampton, 
 which differs little from the writ Ex gravi querela, which may 
 be seen in Reg. Brev. Orig. 244 b ; Vet. Nat. Brev. 85 b ; Fitzh. 
 Nat. Brev. 199.
 
 I, *70 &.] OF DEBT. 145 
 
 ment and execution shall be had according to the or- 
 dinance of our statutes, and from him who has nothing, 
 nothing shall be recovered. 
 
 37. There is also a kind of debt due to persons from 
 their servants who detain from them their property, 
 and refuse to give an account thereof ; in which case 
 the plaintiffs shall have remedy according to the or- 
 dinance of our statutes. And if any servant allege, by 
 way of exception, that he has given in his accounts to 
 his lord, or to his lord's attorney, and that the lord or 
 the attorney has his rolls and other memoranda relat- 
 ing to the matters whereof he should render account ; 
 in such case if he can verify his exception, it shall be 
 allowed, unless the lord redeliver to him his rolls under 
 the servant's seal. In cases where the action is re- 
 moved into our court on account of an alleged *\vrong 
 of the first auditors, we will that whatsoever was al- 
 lowed before the first auditors shall remain allowed 
 before the second, so that it shall not be the duty of 
 the auditors in our court to determine anything relat- 
 ing to the account, except as to the wrong which the 
 first auditors may have done to the servant. And we 
 will that no one shall be obliged to render an account 
 to any lord, except ourselves, elsewhere than in the 
 neighborhood where he was his bailiff. 
 
 38. There are also other personal actions of which 
 sheriffs may take cognizance by virtue of our writs of 
 Justicies, concerning torts in contracts, as where a 
 covenant is broken, or concerning account, or to en- 
 force a reasonable aid for knighting the lord's son, or 
 
 10
 
 U6 BRITTOK [I, *71. 
 
 marrying his daughter, or a right to take water at an- 
 other's well, or to have a free bull, or free boar, or to 
 have common at a watering-place for his cattle or to 
 take reasonable estovers, or to have a way, or common 
 of fishery, or to enforce an acquittance, or concerning 
 gages damaged or not returned, or charters, or con- 
 cerning suits detained, or mills wrongfully erected, or 
 houses or folds, or other such nusances ; and many 
 other actions, wherein the proceeding is by distress of 
 chattels, and by damages, and the trial is by juries. 
 
 ^CHAPTER XXX. 
 Of the Sheriff's Tourns. 
 
 1. There are some articles concerning our Crown and 
 the breach of our peace of w r hich sheriffs may hold 
 plea at other times than on the county days, and in a 
 different place from that where the pleas of the county 
 are held. These pleas are called the tourns of the 
 sheriff, who ought to hold them twice in the year, 
 within every hundred of his county. And that which 
 before the sheriff is called the sheriff's tourn, is in the 
 court of a freeman and in franchises, and in our hun- 
 dreds, called view of frankpledge, where a more spe- 
 cial inquiry is made concerning those whose who are 
 not in any tithing, than is done in the sheriff's tourn. 
 
 2. At these tourns all the freemen of the hundred 
 and other landholders being summoned by general 
 summons ought to appear, except clerks, persons in
 
 1, *71 &.] OF THE SHERIFF'S TOURNS. 147 
 
 religion, and women. At which day let the sheriff 
 cause twelve of the most sage, lawful, and sufficient 
 men out of the whole hundred to be chosen, and to 
 swear they will present the truth of the articles here- 
 inafter mentioned. Afterwards the rest shall be sworn 
 by dozens, and by townships, that they will make law- 
 ful presentment to the first twelve jurors upon the ar- 
 ticles wherewith they shall be charged by them. Next 
 it shall be enjoined them, that if they find any offender, 
 from whom there may be any danger of life or limb, 
 the name of such offender be secretly presented. 
 Afterwards the following articles shall be delivered to 
 the twelve first jurors, who are to be charged upon 
 their oaths that they will lawfully present the wrongs 
 and offences which they *shall find upon inquiry from 
 the townships by means of these articles. 
 
 3. Of mortal enemies of the king or queen, of their 
 children, and of those consenting to them ; of counter- 
 feiters of the king's seal and of his money ; of homicides 
 and murderers ; of those who feloniously set fire to the 
 houses or corn of others ; of burglars, robbers, and 
 thieves ; of breakers of the king's prison ; of ravishers of 
 women; of outlaws and abjurors of the realm who are 
 returned ; of sorcerers ; and sorceresses ; of apostates 
 and heretics ; of traitors ; of poisoners ; of cutpurses ; of 
 usurers ; of salesmen knowingly buying and selling 
 stolen meat; of those who knowingly bleach skins of 
 stolen beasts ; and of menders of clothes knowingly buy- 
 ing stolen clothes and turning them into other shapes ; 
 of treasure hidden and found in the earth ; of hue and
 
 148 BRITTON. [I, *72. 
 
 cry wrongfully raised, or duly raised and not pursued ; 
 of waters stopped or narrowed or turned from their 
 course; of roads stopped, narrowed, or turned; of 
 boundaries removed or wrongfully altered ; of walls, 
 houses, gates, marl-pits, ditches, or other nusances raised 
 or made in any common way to the annoyance of the 
 same way and to the danger of passengers ; of petty 
 thieves, who shear or *flay sheep or other cattle in the 
 night to steal their skins ; of those who take thefbote ; 
 and of those who have made a prison in their houses ; 
 or committed hamsoken, or breach of pound ; and of 
 offenders in parks or in vivaries ; of takers of others' 
 pigeons ; of breach of the assise of bread and beer, and 
 of those who buy and sell by weights and measures not 
 according to the assise ; of affrays, of brawlers, and of 
 bloodshed ; of watches not kept ; of the king's high- 
 ways not widened ; of those who have detained ap- 
 provers in any other prison than in our custody, or 
 other felons elsewhere than in our prison above a day 
 and night ; of new franchises, customs, or instruments 
 of correction, 1 set up since the last tourn, in water or 
 land ; of waif, or wreck of sea found and retained ; of 
 bridges and highways broken, and who ought to re- 
 pair them ; of rights belonging to the king withheld, 
 as wards, marriages, reliefs, demesnes, advowsons of 
 churches, and all kinds of suits ; and of those who 
 claim royal franchises and powers of punishment ; and 
 of those of twelve years old and upwards in the hun- 
 dred who have not come to the tourn. 
 
 1 ' Gallows, pillory, tumbrel, or the like.' (Note in MS. N.)
 
 I, *72 5.] OF THE SHERIFF'S TOURISTS. 149 
 
 4. All these articles shall also be inquired of at the 
 view of f rankpledge ; and the following articles besides ; 
 whether all the headboroughs are come to the view, 
 and whether they have their tithings complete ; *of 
 those of twelve years old or upwards, except clerks, 
 and knights and their children, and women, who are 
 not in tithings, and of their receivers, and of whose 
 mainpast they are ; J of vagrants through the country 
 who are not of any one's mainpast, and are of sus- 
 picious character. 
 
 5. When the townships have given in their verdict 
 to the first jurors, and they are certified of the truth, 
 let the first jurors immediately go and deliver up their 
 presentment to the sheriff, such as they will abide by 
 without being questioned, and let them exhibit the 
 
 1 The annotator in MS. N observes here, that f rankpledge was 
 so called, ' because villains and naifs ought not to be in tithings, 
 secundum quosdam.' It is not improbable that the term frank, 
 or free, pledge arose from a misinterpretation of the Saxon Frio- 
 borh, or pledge of peace. It is true however that the Anglo- 
 Saxon tithings were composed of ' freemen ; ' (Leg. Cnut. 20 ; 
 Cart. Will. I. de stat. 14) ; but the churl was in Saxon nomen- 
 clature ' free.' In the laws of William I. it is provided that ' all 
 the villains shall be in frankpledge.' Leg. Will. I. 20. There 
 can be no doubt that the peasants were the principal subjects of 
 this regulation when in its vigour, the military tenants, the 
 liberi homines of Norman law, being exempt. See Bracton 124 b ; 
 Fleta 62 ( 10). The doubt above mentioned as to the admission 
 of villains seems to show that at the time when it was enter- 
 tained either the institution of frankpledge was already in decay, 
 or the peasants were in a great measure enfranchised.
 
 150 13IUTTON. [I, *73. 
 
 presentments for felony privately, and the other pre- 
 sentments openly. 
 
 6. If any person indicted of felony be present, he 
 shall be immediately apprehended and carried to our 
 gaol, unless it be any thief or robber in possession of 
 his theft ' handhaving and backbearing,' and the 
 sakeber be present to make his suit, in which case let 
 the evidence be examined, and judgment executed 
 upon him, if the sakeber verifies the thing as his own, 
 or as stolen or robbed out of his custody ; and let the 
 punishment be according to the quantity of the thing- 
 stolen as before is mentioned. As to such of the persons 
 indicted as shall not be found present, let the persent- 
 inent be sealed under the seals of the twelve persent- 
 ors. And the sheriff shall cause them to be apprehend- 
 ed, and keep such as are not bailable safe in prison 
 until the *first gaol delivery, and bail those who are 
 bailable until the same time. 
 
 7. What persons are bailable and what not, is men- 
 tioned in our statutes. Besides, those persons are not 
 bailable, who are indicted or appealed of compassing 
 our death, as is above said ; nor those who are appre- 
 hended by the judgment of our justices, as persons con- 
 victed of open deceit committed in our court, nor those 
 who are apprehended for redisseisin, nor those who by 
 judgment of our court are committed to prison for 
 arrears of accounts, nor those who are taken for rape 
 of women, or by statute merchant, nor those who are 
 convicted of trespassing in parks and vivaries, or of 
 impeding the execution of judgments of our court, nor
 
 I, -"-73 I.] OF THE SHERIFF'S TOURNS. 151 
 
 those who have carried off religious women from 
 their convent, nor those who have carried off infants 
 whose marriages belong to others. 
 
 8. As to the presentments made of boundaries 
 removed, ways and waters obstructed, and such other 
 personal trespasses, let the trespassers, if they are 
 present, immediately answer thereto ; and if they will 
 not,* or if they are not present, then let the twelve 
 presenters be commanded immediately to go and 
 remedy such nusances, if they have been done since the 
 last tourn, by restoring matters to their lawful and 
 usual state. And if such jurors have wrongfully ag- 
 grieved any persons in their absence by their present- 
 ment, in such case the persons ^aggrieved shall have an 
 action to be reinstated, by plaint in the county court, or 
 by our writ, if necessary, either against all the twelve 
 presenters jointly, or against any of them severally. 
 And if the plaintiffs cannot make good their plaints, 
 then let the defendants recover their damage, and the 
 plaintiffs be in mercy. 
 
 9. Afterwards let all those be amerced who shall be 
 named as trespassers by the presentments, and those 
 also of twelve years and upwards who have not ap- 
 peared, except prelates, earls, barons, persons of religion, 
 and women, and except also those who are not living 
 or constantly resident in the hundreds, although they 
 may have dwellings there. As to breach of assises, 
 let the proceedings be as mentioned in the next chap- 
 ter. In views of frankpledge, let the headboroughs be 
 amerced, who shall not have their tithings complete,
 
 152 BRITTON. [I, *74. 
 
 there present, unless they are excusable by reason of the 
 death of any one or more. Also let those be amerced 
 who are twelve years old and upwards, and who ought 
 to be in a tithing and have not been, and those also of 
 whose main past they are and have been ; but if any 
 person be elsewhere in a tithing, it is sufficient. 
 
 10. When any one is to be admitted into a tithing, 
 first he shall find pledges to our bailiffs, that he will 
 be amenable to justice in *our court as often as there 
 shall be occasion, and shall take the oath of fealty to 
 us and to our heirs ; and let him be delivered to his 
 pledges, and let his name and the names of his pledges 
 be enrolled. 
 
 11. Fealty shall be sworn in these words : Hear this 
 you, N., bailiff, that I, P., from this day forward will 
 be faithful and loyal to our lord E. king of England 
 and his heirs, and will bear unto them faith and loyalty 
 of life and limb, of body and chattels, and of earthly 
 honour, and will neither know nor hear of their hurt 
 or damage, but I will oppose it to the best of my 
 power ; so help me God and the Saints.
 
 I, *74 &.] OF MEASURES. 153 
 
 CHAPTER XXXI. 
 
 Of Measures. 
 
 1. We will that no one have measures in our realm 
 except ourselves, but that every one take his measures 
 and his weights from our standards, as of bushels, gal- 
 lons, pounds, ells, and other such measures. 1 
 
 2. And we will that the assise of bread be observed 
 in this manner. 2 When the quarter of wheat is sold 
 for twelvepence, the farthing loaf of wastel bread white 
 and well baked shall weigh 61b. 16*. ; coket bread of 
 the same corn and the same bolter shall weigh more 
 than wastel by two shillings ; bread of a lower price 
 than coket and of another bolter shall weigh more 
 than the wastel by 5s. ; *simnel bread shall weigh less 
 than the wastel bread by 2*., because it shall be twice 
 baked ; the farthing loaf of entire wheat shall weigh 
 one and a half of coket ; bread of trayt shall weigh 
 two wastels ; bread of all corn shall weigh two cokets. 
 When wheat is sold for ISd. the quarter, then the 
 farthing loaf of wastel shall weigh 41b. 10*. 8d. ; when 
 
 1 As to the measures used in England in the thirteenth century, 
 and their respective quantities, see Assisa de Ponderibus (Stat. 
 incert. temp.), Flet. 72, 73. 
 
 2 It should be observed, that the same standard of weight is 
 used for bread and money. The solidus or shilling (s.), is the 
 20th, and the denarius, penny or pennyweight (d.), the 240th 
 part of a pound. See below, s. 5.
 
 154 BKITTON. [I, *75. 
 
 for 2s., it shall weigh 685. ; when for 2s. 66?., the 
 weight shall be 54s. 4f 6?. ; when for 3s., the weight 
 shall be 48s. ; when for 3s. 66?., the weight shall be 
 42s.; when for 4s., the weight shall be 34s. ; when for 
 4s. 66?., then 30s. ; when for 5s., the weight shall be 27s. 
 2|-6?. ; when for 5s. 66?., it shall be 24s. 8%d. ; when for 
 6s., the weight shall be 21s. S^d. ; when for 6s 66?., it shall 
 be 20s. lid. ; when for 7s., the weight shall be 19s. Id. ; 
 when for 7s. 6d., the weight shall be 18s. l^d. ; when 
 for 8s., the weight shall be 17s. ; when for 8s. 66?., the 
 weight shall be 16s. ; when for 9s., then 15s. 0^6?. ; 
 when for 9s 66?., the weight shall be 14s. 4^6?. ; when 
 for 10s., then *13s. 86?. ; when for 10s. 66?., the weight 
 shall be 12s. 11^6?. ; when for 11s., then it shall be 12s. 
 46?.; when for lls. 66?., then the weight shall be 11s. 
 106?.; when for 12s., the weight shall be lls. 46?. ; so 
 that the weight of the loaf shall be changed for every 
 66?. rising or falling in the quarter of corn. 
 
 3. The baker may still gain out of every quarter of 
 wheat threepence, and the bran and two loaves of the 
 value of two sterlings 1 for his oven, three halfpence 
 for the wages of his three servants, and one halfpenny 
 for the wages of two boys, and one halfpenny for salt 
 and for the bolter. We will that if a baker be con- 
 victed of false weight, 2 where there is found a deficiency 
 
 1 A sterling appears to be the same as a penny. ' Denarius 
 Anglicanus, qui vocatur sterlingus, rotundus et sine tonsura, 
 ponderabit xxxii. grana frumenti in medio spice.' Assisa de 
 ponderibus. (Stat. incert. temp.) ; Fleta 72. 78. 
 
 2 Similar varieties of readings to those mentioned in the note
 
 I, *75 J.] OF MEASURES. 155 
 
 of the weight of one farthing in the weight of two 
 shillings, he shall be amerciable ; and for any greater 
 default he shall be set in the pillory. 
 
 *4. The assise of beer shall be observed in this 
 manner. When a quarter of wheat is worth from 
 three shillings to forty pence, and a quarter of barley 
 from twenty pence to two shillings, and a quarter of 
 oats sixteen pence, then two gallons of beer shall be 
 sold in cities and boroughs for one penny, and in 
 country places three gallons of beer for one penny ; 
 and when three gallons are sold in cities and boroughs 
 for one penny, then four shall be sold without for a 
 penny ; and when the quarter of barley shall be sold 
 for two shillings, three gallons of beer shall be worth 
 a penny ; thus the market of beer shall rise and fall 
 according to the current price of corn. 
 
 5. And whereas AVC have entrusted one of our officers 
 with the custody of the standards and samples of our 
 weights and measures, we will that this officer shall 
 have jurisdiction and cognizance of false weights and 
 measures throughout our verge, wheresoever we be 
 in our territory, within franchise and without, and to 
 burn such as he shall find false, and to amerce and 
 otherwise punish those who have made use of such 
 weights or measures. We have also appointed him to 
 deliver standards to all those who require them, where- 
 above are also found in the several copies of the Latin Assisa 
 panis, (Stat. incert. temp.) See Statutes of the Realm, (Rec. 
 Com.) p. 200. See also Fleta 72. The Assisa panis was formerly 
 printed as a statute of the 51st year of Henry III.
 
 156 BRITTON. [I, *76. 
 
 of the pound shall weigh twenty shillings of current 
 money ; the ell shall be two cubits and two inches ; a 
 bushel shall contain two hundred pounds in pence, 
 and a gallon twenty-five pounds. Merchants *neverthe- 
 less shall have their weights as far as regards avoirdu- 
 pois * according to their customs. 
 
 6. When the officer of the measures is to perform his 
 office, let him do it in this manner. First let him go 
 with his standards from market to market, wherever 
 he shall find any within the verge, and immediately 
 summon the bailiffs to come before him to perform 
 what he shall enjoin them on our behalf. And if they 
 will not come, or if they come and will not be obedient 
 to him, let the franchise of the market be taken into 
 our hand, if it is held by any other than by us ; and 
 if they are our bailiffs, let them be punished by im- 
 prisonment and fine. If the bailiffs appear as they 
 ought to do, then let them be commanded that they 
 cause to be brought before him all the bushels and half 
 bushels, and quarts, gallons, and half gallons, and all 
 other measures whereby people have bought or sold in 
 the town, and from every baker a loaf of every sort, 
 and all the bakers and brewers of the town, and the 
 taverners, and all those to whom the measures belong, 
 and other good people of the town, by whom he may 
 inquire the truth concerning the articles of his office. 
 And those who are summoned and do not come, if the 
 summons be proved, shall be in mercy. When they 
 are come before him, he shall immediately cause twelve 
 1 See above, c. xxii. s. 22, and note there, p. 80.
 
 I, *76 5.] OF MEASURES. 157 
 
 of the most lawful householders to be sworn, that they 
 will present the truth of the articles wherewith they 
 shall be charged on our behalf. 
 
 *7. The articles shall be these : whether the lord of 
 the franchise hath set up a market there of his own 
 authority, or by our warrant, and if by our charter, 
 whether he hath the franchise of view of frankpledge 
 or not, and whether he has the correction of the breach 
 of assise of bread and beer, and whether he has the in- 
 struments of punishment appendant to such franchises, 
 as gallows, pillory, and tumbrel. And if it be found 
 that he has no market or franchise by our warrant, 
 the franchise shall be seised into our hand, and the 
 sheriff of the place shall be responsible to us for the 
 issues. Likewise if he has the franchise of view, but 
 no gallows, the view shall be seised into our hands, 
 and also the correction of breach of assise, for want of 
 other instruments of punishment. 1 
 
 8. Afterwards let inquiry be made concerning bakers 
 and brewers, 2 who have baked and brewed out of the 
 right assise, how many times they have been amerced, 
 and how many times sentenced to the pillory, and for 
 what amount of offence they were amerced or put in 
 the pillory; and for every illegal judgment let the 
 
 1 This passage is obscure, and possibly corrupt. The fourches 
 or gallows would only be required where the lord had jurisdic- 
 tion of infangthief. 
 
 2 It will be observed, that the word in the original implies that 
 the trade was carried on by females. So in the Latin Assisa 
 panis (Stat. inc. temp.) the: word is braciatrix.
 
 158 BRITTON. [I, *T7. 
 
 francliise be seised into our hands. Let inquiry after- 
 wards be made whether any man or woman has been 
 destroyed in consequence of the instruments of punish- 
 ment being faulty or out of repair, and if such default 
 be found, the franchise shall be seised into our hands ; 
 and if our bailiffs are in fault, they shall be punished 
 by imprisonment and fine. 
 
 9. Afterwards let it be inquired concerning tavern- 
 ers, who since the last eyre in the ^county have sold 
 wine contrary to the legal assise, and how much their 
 profit above the right assise amounts to; and if they 
 are living, let them be punished by pillory and fined in 
 double the value of their gain. Afterwards let inquiry 
 be made concerning those who buy by one kind of 
 measure, and sell by a false measure of less quantity ; 
 and let them be punished as the sellers of wines ; and 
 likewise those who shall be convicted of false ells and 
 of false weights ; also salesmen and cooks, who make a 
 practice of selling to passers-by bad meat, tainted or 
 diseased, or otherwise dangerous to the health of man. 
 Likewise forestallers, who raise the market price of 
 victuals by their dealings outside the market. 
 
 10. Afterwards let the weights and measures be 
 severally examined, and the good ones be restored to 
 the owners, and the false ones burned. And let the 
 bakers and brewers convicted of breaking the assise 
 be punished in proportion to their offence either 
 by amercements or pillory. And let our officer of 
 measures without delay cause the estreats and the en- 
 rollment of his proceedings to be delivered to the
 
 I, *T7 &.] OF V1LLENAGE. 159 
 
 Steward of our household, who shall speedily cause 
 such estreats to be levied by the marshal, or by sum- 
 mons out of our Exchequer. 
 
 Here ends the subject of pure personalty ', and begins 
 that of the condition of villains. 
 
 *CHAPTER XXXII. 
 
 Of Villenage. 
 
 1. "We have above in part treated of the law of free 
 persons ; we must now treat of the condition of villains. 
 This condition was of ancient time changed from free- 
 dom to bondage by the constitution of nations, and not 
 by the law of nature, as it stood at the time of the flood 
 and earlier, when all things were common to every 
 one, and all men were entirely free, and lived accord- 
 ing to the law of nature. But from the increase of 
 mankind and the appropriation of goods which before 
 were common, battles arose in divers places in the 
 world, and to avoid bloodshed and the perilous chances 
 of battle, it was then ordained by the constitution of 
 nations that men should not kill one another, but when- 
 ever one could take another in battle, that the person 
 taken should for ever remain a bondman to him who 
 took him, to do with him and all his issue that should 
 proceed from him whatsoever he would, as with his 
 beast or chattel, to give, to sell, and to kill. After- 
 wards it was ordained, on account of the cruelty of 
 some lords, that no one should kill them, but that their
 
 160 BRITTON. [I, *78. 
 
 lives and limbs, as well as those of free men, should be 
 under the protection of kings and princes. 1 Whence 
 the law is this, that whosoever kills his villain, shall 
 bear the same judgment as if he had killed a free man. 
 2. There is another kind of naifs who are not naifs 
 by ancient birth, but are properly villains, 2 such as *free 
 
 1 ' Although the property of villains is in their lord, yet he 
 may not kill them, inasmuch as life and limb belong to the king, 
 who has in every subject a sort of remote fee by title of seignory 
 (qi ad en chescun homme auxi come un fee sutyl en noun de 
 seignurie). The lord is therefore in the position of a mesne be- 
 tween his bondsman (serf) and the king, and ought to treat his 
 villain in due manner as for his employment, and not for his 
 destruction (pur lui enprower e ne mie dampnier.' Note in 
 MS. N. 
 
 2 The annotator in MS. N. distinguishes between naifs, villains, 
 and serfs in the following way : ' Naif is he that has come of 
 such lineage that they have been in servitude for several genera- 
 tions (qe tote voirs de eve e de treve unt este en servage). 
 Villain is he that has come afresh into servitude, from which he 
 cannot depart though he be of a free stock. Serf is he who is not 
 absolutely a villain, nor absolutely free, but is de facto in servi- 
 tude, as a freeman who marries a nief and enters into the villain 
 tenement, and does to his wife's lord the villain customs which 
 belong to the land held in the villenage. Wherefore this free- 
 man and the issue he has by the nief, are serfs de facto and free- 
 men dejure, and are called serfs for the servitude in which they 
 are. Wherefore if the issue of this freeman remains in servi- 
 tude, and his issue the same all their lives, and so on to the 
 fourth degree, the fourth will be a villain for ever, and those 
 who come of him.' I do not know any other authority for this 
 last statement, which is inconsistent with the text of Britton, 
 (see below, ss. 3, 19.) but may probably have pgreed well with 
 the earlier practice. (See note on sect. 4.) The whole passage.
 
 I, *78.] OF YILLENAGE. 161 
 
 men who have acknowledged themselves in our court 
 to be villains, or who have been in any manner con- 
 victed as villains by plea under our writ of Naifty. 
 Beside those mentioned, there are no other kinds of 
 villains. 
 
 3. With respect to those who by reason of any tene- 
 ment have made redemption of blood 1 or done other 
 villain services, although they and their ancestors have 
 performed such services from one generation to an- 
 other, 2 if any one sprung from such a stock has fled 
 from his lord, and is demanded by him as his villain, 
 and such fugitive can prove his stock to be free by 
 good inquest of the neighbourhood, and that the lord 
 claiming him was not seised of him and his ancestors 
 
 as compared with the other authorities, shows the uncertain and 
 fluctuating condition both of the law on this subject, and of the 
 meaning of the terms employed. 
 
 1 ' Redemption of blood ' is the same as mercheta or merchetum, 
 called in Fleta, merchetum sanguinis (Fie. 193), a customary 
 payment made by a tenant for license to give his daughter in 
 marriage. This custom was considered a special mark of tenure 
 in villenage. (Brae. 26, 195, 208 6 ; Littleton, Tenures, ss. 174, 
 209). 
 
 2 The annotator in MS. N, in a note upon Bracton, c. 11, lias 
 the following explanation of the expression of the text : ' Unum 
 est genus hominum, qui dicuntur villici sive rustici et nativi ex 
 avo et tritavo ; unde Gallice dicitur, vileyn de eyve e de trey ve ; 
 quia villici sunt personaliter.' It will be seen that the annotator 
 himself uses the phrase in the note last cited. Coke has a dif- 
 ferent explanation. See Coke Lit. 25 6. The same expression is 
 found in the Year Books. Hil. 1 Edw. II. p. 4. ; Pasch. 15 Edw. II. 
 
 p. 464. 
 ii
 
 lt)2 BRITTON. [I, *78 b. 
 
 as his villains by reason of their bodies, but by reason 
 of the tenement which they held of him in villenage ; 
 in such case judgment shall be given against the lords. 
 For justice will not allow that villenage, by any long 
 seisin of a servile tenement, shall make any freeman a 
 bondman ; nor, on the other hand, that long seisin of 
 a free tenement shall change the condition of a villain 
 into free estate. So that none can be a villain except 
 by birth, or by recognizance. Nor can one be more a 
 villain than another ; for they are all of equal condi- 
 tion, whosoever is a bondman, is as absolutely a bond- 
 man as any other. 1 
 
 4. Nevertheless all who are begotten by villains are 
 not bondmen, for no one begotten by a bondman of a 
 free woman out of *matrimony is a bondman, although 
 
 1 The doctrine that there is no distinction of condition among 
 those not accounted free, appears to have been imported by 
 Bracton or his predecessors from the civil law. ' In servorum 
 conditione iiulla est differentia.' (Justin. Inst. li. 1. tit. 3. 5.) 
 In Anglo-Saxon and early Norman times nothing is more re- 
 markable than the gradations of servitude among the peasants. 
 In Domesday Book the various classes inferior to the liberi 
 homines (villani, bordarii cotseti, &c.) are clearly distinguished 
 from the bondmen or slaves (servi). In Glanvill (li. 5. s. 4.) the 
 word servitus is used as equivalent to villenagium or nativitas, 
 but I think that the term servus is not employed, the various ex- 
 pressions being in villenagium positus nativus (li. 5. passim), 
 and rusticus (li. 14. c. 1). In Bracton and Fleta servus nativus, 
 and villanus appear to be synonymous. This confusion of 
 ancient distinctions was pointed out in the fourteenth century 
 by Andrew Home in the Mirror of Justices. (Mirror, c. 2. s. 28. 
 p. 169 ; c. 5. s. 1. pp. 291, 295.)
 
 I, *78 &.] OF VILLENAGE. 163 
 
 it happen that the issue be afterwards born within 
 matrimony. Nor shall he be a bondman who was be- 
 gotten on a bondwoman in matrimony, so as the 
 father be free. 1 
 
 5. Where any one is by birth a bondman, he shall 
 be merely the chattel of his lord to give and sell at his 
 pleasure. But as bondmen are annexed to the freehold 
 of the lord, 2 they are not devisable by testament ; and 
 therefore Holy Church can take no cognizance of 
 them in Court Christian, although devised in a testa- 
 ment. 
 
 1 In Glanvill's time the children followed the status of the 
 mother, according to the rule of the civil law : ' Servi sunt qui 
 ex ancillis nostris nascuntner' ; (Dig. li. 1. tit. 5. I. 3.) and the 
 free husband, if he adopted his wife's estate, and lived upon a 
 tenement held by her in villenage, forfeited ' his law.' (Glan. li. 
 5. c. 6.) In the time of Bracton, if the father was a freeholder, 
 and the children were born in librero toro, they were free ; but 
 if the husband adopted his wife's estate, and the children were 
 born in villenagio, they followed their mother's condition. 
 (Brae. 5, 193 &.) The more liberal rule stated in the text prevailed 
 in later times. (Littleton, Tenures, s. 187.) 
 
 2 It should not pass without notice, that there is no mention in 
 Breton or in the other earlier authors (so far as lam aware) of the 
 class of bondman described by Littleton as villains in gross. (Lit- 
 tleton, Tenures, s. 181.) Examples may be found of villains being 
 transferred in the thirteenth century from one lord to another 
 without the soil on which they lived ; but they were probably 
 held to become annexed to the new manor upon which they 
 were settled. The Mirror agrees with our author in treating 
 villains as always annexed to the freehold. (Mirror, c. 2. s. 2N. 
 p. 166.) Servitude, as a personal relation, appears to have been 
 then unknown in England.
 
 164 BIUTTOK [I, *79. 
 
 6. A villain may recover his freedom several ways, 
 as if his lord enfeoff him of any tenement to him and 
 his heirs, whether he receive his homage or not ; for 
 since it is the lord's pleasure that his bondman shall 
 have heirs of his own other than the lord, and that his 
 heirs shall succeed to his inheritance, it sufficiently ap- 
 pears that he intends his bondman have the status of 
 a freeman. A bondman also becomes free if he marries 
 his lady, as well as a nief when her lord marries 
 her ; for otherwise so great inconvenience would 
 ensue, that the heir should be villain to himself, and 
 the land should escheat to the chief lord, who would 
 hold the heir as his villain, when perhaps neither he 
 nor any of his lineage were ever so. 1 But if a villain 
 espouses a free woman who has land in fee, their son 
 born in matrimony *isa villain, and his lord shall acquire 
 the land of the mother either by his own entry or by 
 means of his villain, heir to his mother, by assise of 
 Mortdancester, if she does not assign it over in her 
 lifetime, and the son survives her, and she has no other 
 issue which is free. "Wherefore when any bondman 
 or bondwoman once becomes free, or is enfranchised by 
 the free bed of his lord or of any other, we ordain in 
 favour of freedom and of matrimony that they and their 
 issue shall for ever be held free, and the husbands be 
 entitled to hold by the courtesy of England, and the 
 wives to dower. 
 
 7. We will that villains in all actions be answerable 
 to every one, and every one to them, so that the excep- 
 
 1 That is they were not the villains of that lord.
 
 I, *T9 J.] OF VILLENAGE. 165 
 
 tion of villenage shall only hold good between the lord 
 arid his villain, 1 and that only when the lord has been 
 in recent possession of him and of his suit, or at the 
 least has been seised of him as his villain within a year 
 and a day. 
 
 8. A bondman may be enfranchised also by the rec- 
 ognizance of his lord, as if his lord has acknowledged 
 him to be free in a court of record. So also if he be 
 waived by the lord, as where the lord has abandoned 
 him. Likewise, by writing of his lord, as if his lord 
 has for himself and his heirs quitclaimed to the bond- 
 man and his heirs all manner of right which he had or 
 might have in the person of the naif by reason of the 
 bondage of his blood. *Villainsmay also recover their 
 freedom by the negligence of their lords, as if any lord 
 suffer his villain to be fugitive for time of prescrip- 
 tion limited in our writ of Mortdancester ; or to abide 
 within our demesnes without challenge for a year and 
 a day, a privilege which was heretofore granted 
 to us by common allowance for our profit and for 
 the improvement of our towns. Likewise, if he per- 
 mit his naif 2 to be ordained clerk, or created a knight 
 
 1 The principle here stated was of gradual introduction. Ac- 
 cording to Glanvill a stranger might in some cases except to the 
 competency of a naif to take part in certain legal proceedings 
 even after his enfranchisement. For the lord could make him 
 free as against himself, hut not as against third parties. (Glan. 
 li. 5. c. 5.) Compare before c. 29. s. 6, p. 159, and the note there. 
 
 2 ' The lord who permits his villain to be on the level of a free- 
 man (a foer de franc homme) loses the right to his service ; or if
 
 166 BRITTON. [I, *80. 
 
 at least until they be degraded from their orders ; and 
 so in the case of his naif, if he suffer her to be married 
 to a freeman, she and all her issue shall for ever after 
 be of free estate, as before is said. 
 
 9. Where any naif flies from his lord, his lord may pur- 
 sue him as his chattel, to apprehend and bring him back 
 into his fee wheresoever he shall find him within the 
 year and day. But after that time they shall be deemed 
 free as much as they please, until the lords can recover 
 them by judgment of our court. It is not however 
 necessary for every lord to keep his villain as a prisoner ; 
 but it is sufficient if the lords are in possession of their 
 services, so as to take of some the services due from 
 their tenements, and from others, who hold nothing 
 in villenage, a penny a year for chevage, and one day's 
 work in harvest, or other service, small *or great, ac- 
 cording to their ability. So that the lord's right of 
 action to recover his fugitive naif commences when 
 the naif ceases to preform such services and to ac- 
 knowledge him for his lord. 
 
 10. If the lord cannot find the fugitive in his fee, 
 nor bring him to justice within the year and day, we 
 will command the sheriff of the place in whose bailiwick 
 the villain shall be residing, that he ' justly and with- 
 out delay cause such a one the plaintiff to have such 
 a one his naif and fugitive with all his chattels and all 
 
 he suffers him to be his attorney, or juror on an assise (ou assisr) 
 or clerk, or knight, or burgess, and in other cases where the 
 sufferance of the lord shows his intention that the villain should 
 have any reverence out of servitude.' (Note in MS. N.)
 
 I, *80 &.] OF VILLENAGE. 167 
 
 his suit.' In this plaint no summons lies, but the first 
 process is distress, and the first distress is retained and 
 others taken, if the plea be in the county court, until 
 the defendant appears or is attached by pledges. 
 
 11. And because the fugitive may allege freedom, a 
 matter which the sheriff has not jurisdiction to try, 
 we have, in favour of freedom, granted to such fugitives 
 that whenever they find themselves aggrieved by such 
 proceedings of their lords, they shall have peace from 
 such grievances until the eyre of our justices in that 
 county, and that they shall have our writs for that 
 purpose, whenever they wish to obtain them, upon 
 finding pledges to the sheriffs to prove their freedom 
 in the eyre aforesaid ; and that in the meantime they 
 shall have peace. 
 
 12. This writ of peace is called the writ De libertate, 
 and in favour of freedom the pleadings are sooner dis- 
 patched than in a writ *De native, unless the person 
 who purchased the writ fail to appear, upon which he 
 and his pledges shall be in mercy for his nonsuit. If, 
 on the other hand, he prosecutes his suit, and the lord 
 makes default, and the summons be in evidence, let 
 it be awarded that he be free, and the lord in mercy, 
 because he has wrongfully aggrieved him, and let 
 the sheriff be commanded not to permit the lord to 
 aggrieve him for the future. If the lord appears, it 
 then lies on the bondman to prove his freedom, which 
 he may do in divers ways, as appears by the several 
 points, which have been stated in this chapter. 
 
 13. In a plea of naif ty (as also in pleas of Replegiari
 
 168 BRITTON. [I, *81. 
 
 facias, Venire facias, and the like) no essoin is to be 
 allowed to the defendant until after appearance. And 
 if the lord offers himself, and the fugitive makes de- 
 fault, let it be awarded on account of his default, that 
 the fugitive and his pledges be in mercy, and that the 
 plaintiff by the default of the fugitive do make proof 
 of his naifty against the fugitive, so that the fugitive 
 be never afterwards admitted in our court to prove his 
 freedom, and that he be distrained by the grand dis- 
 tress until he appear. 
 
 14. If any lord has obtained a writ to remove the 
 plaints by Pone to a higher court, before any plaint 
 upon the original writ is commenced in the county court 
 the Pone shall thereby be abatable, on account of the 
 false suggestion therein contained, which supposes a 
 plaint to be in the *county court, where in fact no sum- 
 mons was ever made. For before summons or attach- 
 ment or appearance, a plaint is never in court. And 
 this may be verified by the date of the Pone and the 
 day of the summons. 
 
 15. And when he is in court, let the plaintiff count 
 against him by himself or his serjeant in this manner: 
 'John who is here declareth this to you, that Peter 
 who is there wrong-fully fled from him, and herein 
 wrongfully, that he is his villain who fled from his land 
 within the term, &c., and of whom he was seised as of 
 his villain until such a year when he fled from him/ 
 Forasmuch as the effect of this writ is to determine 
 the possession as of a chattel, it is not proper to count 
 in this plea by descent nor by resort, nor to touch at
 
 I, *81 &.] OF VILLENAGE. 169 
 
 all upon the right 1 , no mention being made thereof in 
 the writ. For then there would be a variance between 
 the writ and the declaration, and so the writ would be 
 abatable. And besides, if one could so count, the de- 
 fendant might then defend the right by battle, or by 
 the great assise, which would be a great inconvenience 
 to the lord. And because proof of naifty is made by 
 suit, he must add thus, ' and if he denies this, he denies 
 it wrongfully, for the plaintiff hath thereof suit good 
 and sufficient.' 
 
 16. And immediately let the suit be examined, not 
 only by taking their acknowledgments whether they 
 are villains to the plaintiff, but whether he against 
 whom the plaint is prosecuted was ever upon the land 
 of the plaintiff, and in what manner the plaintiff was 
 seised of him. *And if the suit be found to disagree, 
 in so much is it bad and defective, and the plaint shall 
 be lost. 
 
 17. But if the suit agrees, then let the defendant 
 answer thus : ' Peter who is here defends the wrong 
 and force, and the flight from the land of John and the 
 naifty, and will defend the same where and when he 
 ought.' 
 
 18. Afterwards he shall aid himself by exceptions to 
 the judge, and then to the person of the plaintiff, and 
 afterwards to his own person ; and next by exception 
 to the writ if there is any defect or error ; and after- 
 wards to the declaration, if there is any defect, omission, 
 or variance in it ; and lastly to the action. 
 
 1 The property, as distinguished from the possession.
 
 1TO BRITTON. [I, *S2. 
 
 19. Thus he may say that ' he is a freeman, and 
 Robert his father was free, and those of the suit were 
 free, until they acknowledged themselves villains ; for 
 in the reign of king Eichard,' or of some other king, 
 'it came to pass that a certain knight begot one Theo- 
 bald, great-grandfather of this same Peter, which 
 Theobald married the nief of the ancestor of the same 
 John, who held land of him in villenage, which Theo- 
 bald as long as he lived performed the villain services 
 to the tenement appertaining, and died in the same 
 villenage ; that from Theobald came Philip, from Philip 
 William, from William Simon, from Simon Robert, 
 from Robert Peter who is here, all of whom performed 
 the services aforesaid by reason of the *villain tenement, 
 and not by reason of their persons, until the time of 
 Robert, father of this same Peter. And if he can prove 
 this by inquest, it shall be adjudged against the plain- 
 tiff. 
 
 20. The defendant may also aid himself by excep- 
 tions against the suit, for he may say that as to one of 
 his kindred he is not admissible in evidence. For if 
 there were three of his male kindred, and five females, 
 or more or less, and he can aver of one of the kinsmen 
 that he was begotten out of matrimony of a free 
 woman, and that the second kinsman who offers him- 
 self for suit was begotten in marriage by a freeman 
 although his mother was a nief, notwithstanding he 
 has no exception to make against the third kinsman of 
 the suit, we will that if he demands judgment whether 
 he ought to answer to the suit of a single man. it shall
 
 J, *82 .] OF VJLLENAGE. 171 
 
 in such case be adjudged against the plaintiff ; because 
 the blood of a man cannot nor ought to be tried by 
 means of women, neither is one male alone without 
 more to be admitted as sufficient suit. 
 
 21. Or he may plead that he has done homage to his 
 lord for a tenement ; or that his lord has released him 
 from all actions ; or that he married his lady ; or (if 
 the defendant is a woman) that she was married to her 
 lord or to another freeman. Or he may be aided by 
 other peremptory exceptions, as above is mentioned. 
 
 22. If any one pleads that he is a clerk or knight, in 
 such case judgment shall be given against the plaintiff, 
 *who must impute it to his own negligence. And if the 
 clerk or the knight had not leave from the lord to 
 take upon him such order, or those who ordained them 
 to confer the same upon them, then the lord shall have 
 his action to recover against those who ordained them 
 to be knights or clerks such damages as he can reason- 
 ably assign. And if such knights or clerks refuse to 
 perform honourable . services becoming their station 
 more readily and cheerfully to such natural lords than 
 to others, or behave in any other manner unnaturally 
 to them, in such cases we will that they be degraded ; 
 and if this cannot be done, that satisfaction be made to 
 their lords out of their chattels ; and if their chattels are 
 not sufficient, let those who ordained them be answer- 
 able. 
 
 23. Or the defendant may say that the plaintiff is 
 not entitled to an answer, inasmuch as this is an action 
 limited within a certain term (as other actions are),
 
 1T2 BRITTON. [I, *83. 
 
 and inasmuch as neither he nor any of his ancestors 
 were ever within the term seised of him or any of his 
 ancestors, as their villains, he may demand judgment 
 whether he is at this time bound to answer to him. 
 And if this be proved, the plaintiff shall be convicted 
 of false plaint. But to this, as in all other actions, he 
 may reply that such plea ought not to avail the de- 
 fendant, for that by continual claims he has been 
 *theretofore demanded and his ancestors likewise, by 
 him and his ancestors by other like writs, but by the 
 death of his ancestors or by the king's death those 
 writs abated. 
 
 24. Or the defendant may plead that he has resided 
 upon our demesne lands or elsewhere in any of our 
 towns or cities for a year and a day without having 
 been claimed by the plaintiff, and if he demands judg- 
 ment whether in such case he ought to answer, and 
 can verify this exception, the lord shall be forejudged 
 of his action for his negligence. So also, where the 
 defendant can prove by record of our court that the 
 lord has knowingly suffered him to be upon juries and 
 inquests in our court as a freeman. So, if he can 
 verify by record that he has recovered frank tene- 
 ment against him by judgment of our court, wherein 
 the plaintiff did not allege any exception of villenage 
 against him. 
 
 25. Or he may say that the plaintiff ought not to be 
 answered until he has fully restored to him whatever 
 goods of his he detains from him, or hath detained 
 since he claimed free estate ; which plea shall be
 
 I, *S3 b.} OF VILLENAGE. 173 
 
 allowable by reason of the words contained in our 
 writ, which says, ' with all his chattels and all his 
 suit,' so that the plaintiff in his own writ supposes 
 himself not to be seised of any of the chattels. 
 
 26. If judgment is given for the plaintiff, let it be 
 awarded that the plaintiff recover him as his villain 
 with all his suit and *all his chattels and all his ac- 
 quisitions, and that the villain have no heir other than 
 the lord, and the villain shall remain in our mercy. 
 
 Here ends the book of personal pleas, and begins 
 that of real pleas.
 
 BOOK II. 
 
 OF DISSEISINS AND THEIR REMEDIES. 
 
 CHAPTEK I. 
 
 Of Suits concerning Land, pleaddble by Attachment. 
 
 HAVING gone through the form and manner of plead- 
 ing personal pleas pleadable by attachments of the 
 body or by distresses of movable goods, we must now 
 treat of pleas concerning land, in which the process is 
 by attachment of the very thing demanded. And first, 
 of those pleas which more nearly concern the breach 
 of our peace by fresh force, as when a person is wrong- 
 fully ejected or disturbed in the peaceable possession 
 of his freehold, which act of violence is called disseisin, 
 and fresh force. And in favour of complainants it is 
 ordained that disseisins may be pleaded by petty 
 assises in the counties where the lands lie, in the ab- 
 sence as well as in the presence of the offenders. 
 
 2. There can be no disseisin except of a freehold. 1 
 A freehold is a possession of soil or of services is 
 suing out of the soil by a freeman holding in fee to 
 
 1 ' Note that there is a difference between seisin and posses- 
 sion, for one supposes a term of life, and the other a term of 
 
 years. Note in MS. N. 
 174
 
 1, *84 &.] OF PURCHASE. 175 
 
 him and his heirs, or at the least for term of life, 
 whether the soil be charged with free or other serv- 
 ices. Fee is a right vested in the person of the true 
 heir, or any other who hath acquired it by lawful title, 
 whoever may be seised of the freehold. And this is 
 the property, whereof one may have more and another 
 less, as the heir of the disseisor has one kind of fee 
 and of property, but the disseisee has a greater. But 
 inasmuch as no one can be disseised unless he be first 
 seised, we will therefore, before we proceed to pleas, 
 show in what manner seisin may be acquired. 
 
 CHAPTER II. 
 
 Of Purchase. 
 
 1. Some things are corporeal, as those which one 
 may touch ; others incorporeal, as properties, rights, 
 fees, and easements of tenements. Some things are 
 common, as the sea, the air, and the sea shore, and as 
 the right of fishing in tidal waters and in the sea, and 
 in common waters and rivers ; and some things are com- 
 mon in a less degree, as being common to certain com- 
 munities, as the walls and gates of cities and boroughs ; 
 other sare common in a more special manner, as lands, 
 rents, and other possessions and rights granted for the 
 common advantage of a community, for which no 
 single plaint can be made by a stranger who is not 
 of the community, *nor can any single person bring 
 such tenements in judgment, in the absence of the
 
 176 BEITTON. [I, *85. 
 
 community, or plead or be impleaded by any stranger ; 
 for a member cannot answer for the whole body, ex- 
 cept as an attorney. 
 
 2. There are some things which are no one's prop- 
 erty, as things sacred and dedicated to God by prel- 
 ates of holy church, such as are churchyards, burial- 
 places, churches, chapels, and other consecrated places, 
 whether they are built upon or not. For things divine 
 ought not to be appropriated to human purposes. And 
 if they have been built upon, although the structure 
 fall down, the place still remains sacred. There are 
 also some things which are not the goods of any person, 
 and which are consecrated in the name of God in holv 
 
 9f 
 
 church, such as chalices, censers, crosses, vestments and 
 other like things, which are forbidden to be sold, given 
 away, or alienated, except for ransoming Christian 
 slaves from the hands of pagans. 
 
 3. There are also some things which in their natural 
 state are no one's property, and whereof none can make 
 a gift, as birds, stags, does, and other wild beasts, and 
 fishes. So likewise land or other hereditament whereof 
 no person is in seisin. So likewise freemen ; and 
 villains deserted and ejected by their lords, who imme- 
 diately become free ; *and all other things abandoned 
 and remaining out of the possession of any one, but 
 in which things a property may be acquired by oc- 
 cupancy. 
 
 4. Acquisition or purchase may be in divers ways ; 
 for wild creatures taken elsewhere than in a forbidden 
 place or a warren, belong to the taker so long as he
 
 I, *85 &.] OF PURCHASE. 177 
 
 keeps them. But if the creature escapes, and resumes 
 its wildness and its natural state, so that there is no 
 likelihood of its return, it will afterwards belong, not 
 to him who can wound it, but only to him who can 
 take it. 1 One may also acquire a property by inclos- 
 ing of fish and other wild creatures, as bees. For 
 though bees settle upon a tree, yet the bees do not be- 
 long to the owner of the tree, until he has inclosed 
 them in his hive; no more than birds which have built 
 their nest on a tree, for if another takes them, they are 
 his. But if the owner of the tree takes another per- 
 son's bees in his tree, and knows whose they are, he 
 will be bound to restore them, or to keep them upon 
 terms of divided enjoyment for half the profit which 
 they shall produce. No person can detain from another 
 birds or beasts feres natures, which have been domesti- 
 cated, without being guilty of robbery or of open 
 trespass against our peace, if due pursuit be made 
 thereof within the year and day, to prevent their being- 
 claimed as estrays. 
 
 *5. Property may also be acquired by virtue of fran- 
 chises granted by us concerning things found, which 
 do not belong to anybody, as wreck of sea, beasts es- 
 tray, rabbits, hares, fish, pheasants, partridges, and 
 other wild creatures; that is to say, by a franchise to 
 
 1 This passage appears obscure. The sense is borrowed from 
 Bracton, who observes that the mere pursuit of a wild animal, 
 even though the pursuer succeeds in so wounding it as to make 
 it possible to take it, will not make it his property, but it will 
 belong to the first person who secures it. Brae. 8 6. 
 
 12
 
 178 BRITTON. [I, *86.. 
 
 have wreck of sea found on his soil, waifs and estrays 
 found in his fee, and warrens in his demesne lands. 
 Property may likewise be acquired by the increase and 
 produce of beasts and other animals belonging to 
 people ; and also by the finding of gems and precious 
 stones on the sea beach or elsewhere in places common 
 to all ; so by fishing and by other labour as well at sea 
 as on land. And if any island is found in the sea 
 which is not any one's property, whatever is found 
 therein shall belong to the finder as long as he shall 
 keep it in his hands or in his possession. 
 
 6. A purchase or acquisition may also accrue from 
 the fraud and folly of another, as where persons by 
 malice or ignorance build with their own timber on 
 another's soil, or where they plant or engraft trees or 
 sow their grain in another's land, without the leave of 
 the owner of the soil. In such cases what is built, 
 planted, and sown shall belong to the owner of the soil, 
 upon the presumption of a gift ; for there is a great 
 presumption that such builders, planters, or sowers in- 
 tend that *what is so built, planted, or sown should 
 belong to the owners of the soil, especially if such struc- 
 tures are fixed with nails, or the plants or seeds have 
 taken root. But if any one becomes aware of his 
 folly, and speedily removes his timber or his trees, be- 
 fore our prohibition comes against his removing them, 
 and before the timber is fastened with nails, or the 
 trees have taken root, he may lawfully do so. 
 
 7. "With regard to immovable things of common 
 right, found in the possession of no one, a property
 
 I, *S6 b.] OF MEASUKES. 179 
 
 may be purchased in many ways. One way is by a 
 subtraction of water whereby any one's soil is increased 
 by little and little, provided the lands are not bounded 
 between neighbours. But it would be otherwise in 
 case of a sudden increase ; for if one neighbour by 
 the violence of a flood is deprived of part of his soil, 
 whereby the soil of his neighbour on the other side of 
 the water is increased, by such a sudden increase noth- 
 ing shall be lost, unless the river be an arm of the sea ; 
 but the soil may be recovered by this assise, if the true 
 possessor be deforced, unless he be barred by negligence. 
 But if the increase has been so gradual, that no one 
 could discover or see it, and has been added bv length 
 
 / o 
 
 of time, as in a course of many years, and not in one 
 day or in one year, and the channel and course of the 
 water is itself moving towards the loser, in that case 
 such addition remains the purchase *and the fee and 
 freehold of the purchaser, if certain bounds are not 
 found. And by increase of the demesne the seigniories 
 and fees of the lords increase, and the lords may dis- 
 train as well in such additions as elsewhere in their 
 fees without doing a wrong. 
 
 8. If a new island is formed in the water, the island 
 shall belong to him whose soil is nearest adjoining to 
 it, in whole or in part according as it rises in the 
 middle or towards one bank of the water. If an island 
 grows up in the sea, it shall belong to the person who 
 shall be found in possession of it. It is otherwise 
 however of an island made by the sea in any one's so : l, 
 for the island shall belong to the owner of the fee and
 
 180 BRITTON. [I, *ST. 
 
 of the soil ; and if he be deforced, he shall be aided by 
 this assise. 
 
 9. There is also a good title, called succession, as 
 that of the right heir to his inheritance, and of suc- 
 cessor to the rights of his church, whereof his prede- 
 cessor died seised. How an inheritance descends, and 
 to whom, shall be explained in the book concerning 
 Right in the chapter concerning Successions. There is 
 also a kind of title which has some resemblance to suc- 
 cession, namely, title by accruer. This is where by 
 the death of one parcener without heir his share accrues 
 to the other parceners. 
 
 10. Things which are not in the seisin of another 
 may be purchased by title of gift, and of feoffment, 
 and also by succession, escheat, reversion, *assignmerit 
 of dower, hiring, borrowing, and by title of testament. 
 A freehold may also be acquired by being the father 
 of issue born alive, by a special privilege which has 
 the force of law in England and Ireland, and in many 
 other ways. And with regard to the purchase of cor- 
 poreal things, no gift is sufficient without delivery of 
 seisin.
 
 I, *87 J.] OF GIFTS. 181 
 
 CHAPTEK III. 
 Of Gifts. 
 
 1. A gift is an act whereby anything is voluntarily 
 transferred from the true possessor to another person, 
 with the full intention that the thing shall not return 
 to the donor, and with full intention on the part of 
 the receiver to retain the thing entirely as his own 
 without restoring it to the giver. For a gift cannot be 
 properly made, if the thing given does not so belong 
 to the receiver, that the two rights, of property and 
 of possession, are united in his person, so that the gift 
 cannot be revoked by the donor, or made void by 
 another, in whom the lawful property is vested ; as 
 may be done in the case of donations and feoffments 
 by disseisors, and other like gifts in prejudice of the 
 right of another. Gift is a more general term than 
 feoff men t ; for gift is applicable to all things movable 
 and Immovable, and feoffment is only of soil, whereof 
 a person, being wrongfully ejected, may recover seisin 
 by this assise. 
 
 2. It should be known, that some persons have power 
 to give, and others not. For no one can effectually 
 give but he in whose person the possession and the 
 property are vested, and sometimes those who have 
 nothing but the fee and the property, as by assignments
 
 182 13JJ1TTOK. [I, *88. 
 
 and recognizances in our court ; all other manner of 
 gifts are revocable. 
 
 3. Kings also may not so alien the rights of their 
 crown or of their royalty as not to be revocable by 
 their successors. It is nevertheless allowable for kings 
 to grant baronies and other demesnes, and franchises, 
 sometimes in alms, at other times to have the prelates 
 and other sage persons of the realm of their council, so 
 as they be summonable by the king and amenable to 
 his justice ; and in other cases in fee farm, as cities, 
 boroughs, and other demesnes ; and in other cases to 
 retain the love of their people ; and in other cases for 
 dispatch of justice, for which several franchises are 
 granted, as that of infangthef, and the power of hold- 
 ing plea in a writ of right, and other franchises. 
 
 4. Neither can prelates of holy church so alien the 
 rights of their churches, nor templars, hospitallers, or 
 other persons in religion, as that their gifts shall not 
 be revocable by the donors. *Neither can earls, barons, 
 knights, or Serjeants, who hold in chief of us, so dis- 
 member our fees without our leave as that we may not 
 lawfully eject the purchasers ; nor in such case will it 
 avail to allege length of seisin, inasmuch as no time is 
 limited for the recovery of our rights. 
 
 5. Felons cannot after the commission of their felony 
 make any alienation, which may not be revoked by the 
 lords of the fee by our writs of Entry and Escheat. 
 And bastards enfeoffed to themselves and their heirs 
 (where assigns are not specified in tin; feoff men t) can- 
 not alien so as to prevent the lords of the fees from
 
 I, *88 J.] OF GIFTS. 183 
 
 having the lands aliened as their escheat. Nor may 
 infants within age, nor natural fools, nor madmen, nor 
 deaf persons, nor dumb, nor lepers removed from the 
 society of people, nor villains, make any alienation, nor 
 sokemen of their socage. 
 
 6. Neither can married women alien without their 
 husbands ; nor can husbands without their wives make 
 such a gift of any part of the inheritance of their wives 
 as shall not be revocable by the wives if they survive 
 their husbands ; nor yet wives with their husbands in 
 prejudice of those in whose persons the fee and prop- 
 erty are vested by form of the gift, *as in fees tail ; 
 nor may husbands give anything to their wives, nor the 
 reverse, after the contract of marriage. 
 
 7. Those also cannot effectually give who do so 
 through fear of death, provided they will revoke their 
 deeds as soon as they escape from prison. But un- 
 less fear of death can be alleged, any one may give 
 as well in prison as without. Likewise lunatics and 
 frenzied persons may give an alien, but not during 
 their madness. And persons in religion may give be- 
 fore they are professed, and lepers before they are put 
 out of the society of healthy people ; fools also, so as 
 they are not fools born. 
 
 8. But whether a gift be lawful or wrongful, if the 
 purchaser be challenged in his seisin it becomes the 
 duty of the donor to warrant his gift as long as he 
 lives, although he be not bound thereto by any special 
 clause in a deed, and although the purchaser do hom- 
 age for the same to another than the donor, as to the
 
 184 BRITTON. [I, *89. 
 
 chief lord. And if the donor has bound his heirs to 
 warranty, and the purchaser is impleaded, he shall 
 never be deprived of the gift without the heirs making 
 it up to him in value, supposing they have wherewith 
 to do so, if they cannot defend him in his seisin, and 
 the purchaser proceeds according to law. *But if war- 
 ranty is excepted. then he must proceed according as it 
 was covenanted between them. Such purchasers may 
 act foolishly, and defeat their own right in this manner, 
 and in like cases. A. ejects B. of his freehold, and 
 gives it to C. ; B. proceeds by this assise; A., doubting 
 the result of the assise, ejects C., and restores the land 
 to B., who receives it as his freehold restored, and not 
 by gift. If C. proceeds by this assise, he shall have 
 judgment to eject B., and so B. will lose the possession 
 through his own folly. 1 
 
 9. There are other kinds of gifts, which are not ab- 
 solute gifts, but are rather leases and demises for a 
 term, or in fee, and w hereout a man looks for the re- 
 version or some annual service. Of which gifts some 
 are conditional, and in such the fee is cut down and in 
 suspense until a certain thing happens, as shall be 
 afterwards mentioned ; and some are made for a par- 
 ticular purpose, as on occasion of marriage, and for 
 several other causes. Some gifts are absolute and large, 
 others are restrained and in special form, as to some 
 certain heirs named in the gifts, or where certain per- 
 sons are excepted in the gifts. Some gifts may be ab- 
 
 1 B. will be put to his proprietary action or writ of right, his 
 last possession having been wrongful.
 
 I, *89 I., *90.] OF GIFTS. 185 
 
 solute at the beginning, and afterwards restrained by 
 this clause, so that the purchaser shall not have power 
 to alien the gift to certain persons, or except to certain 
 persons, or to an}' one. *Some gifts are complete, where 
 both rights unite in the purchaser; others are begun, 
 but not completed ; and such titles are bad, as in case 
 of gifts granted, whereof no livery of seisin follows. 
 
 10. Some are weak in their commencement, but are 
 afterwards strengthened by the confirmation of those 
 who have the property, as in the case of gifts made by 
 infants under age, and by those who have no property 
 in the thing, in whatever way they may have come 
 into possession of it. But however such possessions 
 be acquired, where the purchasers have purchased an 
 estate other than their feoffors could legally convey to 
 them, if such purchasers be presently ejected by those 
 in whose persons the property remains or rests, the 
 ejected shall never recover by this assise, on account 
 of the defective entry. And if such purchasers are 
 not presently ejected, they may be afterwards ejected 
 by judgment of our court by virtue of this assise, and 
 of our writs of Entry, and other writs. In some cases, 
 however, the remedy for such disheritable alienations 
 must be delayed until after the decease of the alienors, 
 as in case where the alienors held for the term of their 
 lives. And in case of alienations made by those who 
 had an inferior estate, this assise shall be maintained 
 against the feoffors and feoffees jointly. 
 
 *11. There are some also who cannot without our 
 leave purchase anything but movables, as persons in
 
 186 BRITTON. [I, *90 I. 
 
 religion. Neither can a husband purchase more than 
 the movables of his wife, nor the reverse, after marriage 
 celebrated between them ; neverthel3ss whatsoever is 
 the wife's is the husband's, and not the reverse. For 
 the law forbids gifts between husband and wife for 
 two reasons; first, from a presumption of excessive 
 fondness ; secondly, lest the donor should through such 
 good-nature remain poor and necessitous. Neither can 
 an infant under age, nor any other person whatsoever, 
 purchase anything where the donor remains in seisin, 
 whether he retain the possession as owner or as guar- 
 dian. Nor can lepers expelled society, nor madmen, 
 nor idiots, nor such as are incapable of consenting to 
 a purchase, acquire anything without guardians. 
 
 12. If any one would make a gift to an infant under 
 age, and yet retain an estate for the term of his life, 
 let him first make a complete gift, and put the infant 
 in seisin, and give him some stranger as his guardian ; 
 and when the infant has been in peaceable seisin, let 
 him eject him, and after the donor has been a consid- 
 erable time in seisin, let him procure himself to be 
 ejected by the infant, so that the donor may recover 
 his seisin by this assise and by conviction, claiming a 
 freehold by title of term of life. But for this proceed- 
 ing the assent of the infant and guardian will be 
 necessary. 
 
 *13. There are some purchases which are invalid, 
 unless induction into seisin follows, as of corporeal 
 things; others which are good without institution of 
 seisin made immediately on the gift, as of things
 
 I, *90 &.] OF GIFTS. 1ST 
 
 incorporeal, such as franchises, and easements relating 
 to land, for which this assise lies as well before seisin 
 us after, as to have a way in another's soil, or common 
 for a certain annual rent. For the act of the mind in 
 the union of wills, and the delivery of the writing's 
 
 f O 
 
 from one neighbour to another, are sufficient for seisin, 
 as appears by the franchise of infangthef ; L for it often 
 happens that we grant to persons the franchise of out- 
 fangthef, that is to say, to have the punishment of their 
 people and tenants, wheresoever they may be appre- 
 hended out of their fee, and adjudged to be hanged, so 
 that after such judgment given, they may take them 
 and bring them back into their franchise, and cause 
 them to be hanged upon their own gallows. 2 In such 
 a franchise, no one to whom we have granted the 
 franchise in that form ought to be disturbed, although 
 he has not hitherto been seised thereof. For it may 
 
 1 The above reading is found in all the MSS. which I have 
 -consulted, though the context seems to require ' outt'angenthef.' 
 
 3 Bracton defines outfangthef to be the right of trying thieves 
 coming from other parts, and taken within the limits of the 
 lord's jurisdiction ; and says expressly that this franchise does 
 not authorise the lord to bring back into his liberty and try one 
 who has left his jurisdiction and been taken elsewhere. (Brae;. 
 1546.) Fleta follows Bracton, but adds, that though the lord 
 cannot try his own man taken elsewhere, yet when convicted, he 
 has a right to hang him on his own gallows. (Fie. 62.) Later 
 authors, following the 'Tei-mes de la ley,' have explained out- 
 fangthef to be the right of the lord to call to judgment in his 
 court one of his own men apprehended for felony out of his fee. 
 See Ducange, Gloss. ; Tomline's Law Diet. ; Wharton's Law 
 Lexicon.
 
 188 BPJTTON. [I. *9L 
 
 well happen, that such a chance may not occur within 
 ten years. Whereby it plainly appears that a man 
 may be seised of incorporeal purchases without institu- 
 tion of speedy seisin. 
 
 *14. There are some incorporeal things which can- 
 not be well purchased without the aid of our court \ 
 as fees and properties ;* of which by agreement of the 
 purchaser and the donor a fine should be levied in our 
 court, by means whereof this kind of purchase derives 
 effect and stability. 2 Nevertheless there are some fees 
 which are not to be purchased by certain persons with- 
 out a mesne. For husbands cannot purchase the fees 
 of their wives' dowers, 3 by reason of the service which 
 cannot be attorned from the wife to the husband. 
 Hence the use in such cases of quitclaims from those to 
 whom the reversion belongs. 
 
 15. Sometimes it happens that he to whom the re- 
 version legally belongs by the form of the gift, cannot 
 give his right to any person he may choose until he is 
 
 1 The word fee is here used for seignory ; the word property 
 for a proprietary right not accompanied by possession. 
 
 2 The right which is severed from the possession is sometimes 
 not vested in the purchaser without recognizance in the King's 
 Court, and then by a judicial writ, called Quid juris clamat ; 
 sometimes it is vested by quitclaim, and sometimes the two 
 rights must be united, that is, the possession and the property 
 before the right can be aliened.' (Note in MS. N.) As to the 
 writ of Quid juris clamat, see Reg. Brev. Judic. 36 &. 
 
 8 That is, the immediate seignory of the tenements held by the 
 wife by title of dower under a former marriage.
 
 I, *91 6.] OF JOINT PURCHASES. 189 
 
 himself seised, as in case of those heirs to whom an in- 
 heritance accrues after the decease of the purchasers 
 who were seised for the term of their lives. But the 
 tenants may deliver their seisin to the person to whom 
 the reversion belongs, and he may reenfeoff them or 
 others ; and then not only the fee is granted, but the 
 possession at the same time, together with the fee and 
 the freehold. 
 
 CHAPTER IV. 
 
 Of joint purchases. 1 
 
 1. As one person may make a separate purchase, so 
 may many purchase in common, to them and their 
 heirs and assigns, *or to certain heirs by a limited feoff - 
 ment, and sometimes to issue born, and sometimes to 
 issue to be born, where one can not be heir to the other. 
 It is thus with the gifts which persons make to their 
 mistresses or concubines, 2 to have and to hold to the 
 
 1 It should be observed that throughout this chapter, and else- 
 where, the word commun is used of joint tenancy. No reference 
 is made to tenancy in common, which appears to have been of 
 later growth. 
 
 2 With respect to the supposed gift to a concubine and her 
 children born and to be born, (an example which is borrowed 
 fromBracton,)the annotator in MS. N. observes as follows : 'To 
 that it is said that a concubine can purchase to her and her chil- 
 dren born and to be born, I do not at all agree, (Je ne m'y acord 
 poynt.) For, suppose the concubine to have two children at the 
 time of the purchase, and the deed to speak thus : Sciant &c.
 
 190 BEITTOK [I, *91 b. 
 
 concubine and her children begotten and to be begotten 
 and their heirs ; none of which children can be heir to 
 the others. And if the mother be ejected, although 
 
 quod ego dedi Beatriciae et dementi et David pueris suis et 
 omnibus aliis pueris de me procreatis ex eadem Beatricia nasci- 
 turis, habendum et tenendum prsedictis B. C. et D. et eorum 
 haeredibus et assignatis ; if Beatrice have afterwards children 
 who claim estate by this feoffment, and are kept out by the 
 first purchasers, and bring assise ; being driven to state their 
 title, they must claim either by title of purchase or of succession. 
 And by purchase they can demand nothing, because they are 
 not named by name in the feoffment, and were no parties to the 
 livery of seisin . For in feoffments it behoveth to name certain 
 donor, certain purchaser, and certain tenement : and those who 
 were not in rerum natura at the time of the translation cannot 
 claim part in the thing transferred, the nature of the translation 
 being, that when the thing transferred becomes vested in the 
 purchasers, it is extinct in the donors, and the reverse. But in 
 this feoffment everything is extinct in the donor, and is vested 
 in those purchasers who were parties to the induction of seisin, 
 and in none other. Therefore it appears that the word nascitu- 
 ris is vain and ineffectual. And if the concubine be pregnant, 
 and the donor say, Dedi Beatriciae et dementi filio suo ; and order 
 that the child which shall be born be called Clement ; although 
 this happen accordingly, and the child remain ten or twelve 
 years with his mother, as it were continuing his seisin, if he be 
 afterwards ejected by his mother, he shall not recover by the 
 assise, as some say. For the alienation gave forthwith a new 
 tenant to the lord ; and if the mother had committed felony and 
 been attainted, although execution had been delayed until the 
 infant's birth, yet the right of the lord to have the escheat would 
 have accrued immediately ; which right cannot be extinguished 
 by him who could claim no estate at the time of the felony com- 
 mitted, for jus semper in aliquo sibi vindicat, locum, nee in
 
 I, *92.] OF JOINT PURCHASERS. 191 
 
 the children have not had seisin, yet the mother and 
 children shall recover by this assise, by reason of the 
 seisin which the mother had in their name. And if 
 the mother be dead, again the children shall recover 
 by this assise by virtue of the same seisin, because she 
 took the seisin for herself and her children as their 
 guardian. For that person is seised, for whom and in 
 whose name the seisin is taken ; as is the case with the 
 purchases of villains to the use of their lords. 
 
 2. Nevertheless if one of them allows himself to die 
 seised of his part before division, it accrues to his par- 
 ceners, and to their heirs, and so on to all the rest until 
 the last. And if the last die without heirs and with- 
 out assign, the inheritance shall escheat to the lord. 
 And if any man purchase to himself and his heirs, 
 without assigns being named in the gift, such pur- 
 chaser, if he has no heirs, cannot alien or make an as- 
 sign ; *but if he has heirs either near or remote, who 
 
 loco vacuo requiescere potest.' This latter opinion is upon a 
 point respecting which there is little authority in our common 
 law. By the civil law children in the womb were treated as 
 capable of acquiring property, (see Dig. li. 1. t. 5. 1. 26); and 
 this law was followed in our courts, having cognizance of wills 
 and administrations. (See Beale v. Beale, 1 P. Will. 244. Doe v. 
 Lancashire, 5 Term. Rep. 49.) This however was not the case 
 at common law, for it seems to have been the general opinion 
 that if a remainder was limited to a child, who was in venire sa 
 mere at the determination of the particular estate, the remainder 
 failed, the child not being considered to be in esse. The con- 
 trary rule was finally laid down by Statute 10 and 11 Will. III. 
 c. 16. See Reeve v. Long, 1 Salk. 227 ; Coke Lit. 298 a. (note by 
 Butler); Coke Lit. 390 a. ; Blackstone, Comm. vol. i. p. 130.
 
 192 BRITTON. [I, *92 b. 
 
 can warrant the gift, he may in such case give, sell, and 
 make assigns : but if there be no heir, then the tene- 
 ment will escheat to the lord of the fee. 
 
 3. If purchasers holding in common be ejected out 
 of such purchase, they shall all jointly recover their 
 seisin to hold in common, by this assise, whether the 
 disseisor be a stranger or one of the parceners. 
 
 4. But if any one die seised of his part in severalty 
 without an heir, and without having created assigns, 
 that part shall not accrue to the parceners after the 
 division, but shall escheat to the lord. And if the 
 lord immediately after the decease of the tenant put 
 himself in seisin by merely setting his foot thereon, it 
 is a sufficient seisin ; and if he be ejected or deforced, 
 he shall recover by this assise. 
 
 5. There are some purchases Avhich are valid as to 
 some of the purchasers, and not as to others ; as, where 
 gifts are made by a husband after marriage to his wife 
 and their common children, or to the wife and the 
 wife's children, such gifts will not avail the wife, but 
 will stand good as to the children. 
 
 6. If two brothers purchase jointly to them and their 
 heirs, the elder may be tutor and guardian to the 
 younger, if the younger is under age and the elder of 
 full age; and if both are legitimate, one shall be the 
 other's heir, *if he has no heirs of his own body, and 
 has not made assigns, whether partition was made be- 
 tween them or not. And if one be deforced or ejected 
 after the other's decease, and after having merely set 
 his foot upon the land in the name of seisin of his
 
 I, *93.] OF CONDITIONAL PURCHASES. 193 
 
 inheritance, he shall recover by this assise. And if the 
 assise be brought against the chief lord, and he plead 
 that he claims only wardship in respect of the share 
 of the deceased brother, this defence shall not prevail, 
 although the deceased's brother have left a son or other 
 heir apparent under age, inasmuch as no separate prop- 
 erty was ever recognized in the tenement. 
 
 CHAPTER Y. 
 
 Of conditional purchases. 
 
 1. Notwithstanding heirs are named in a purchase, 
 yet no purchase thereby accrues to the heirs. And it 
 must be understood that where any one purchases to 
 himself and his heirs, he purchases to himself and his 
 heirs near or remote, and to have and to hold from 
 heir to heir, as well to those begotten as to those 
 which are to be begotten. 
 
 2. And as heirs may by the form of the purchase ac- 
 quire a property in the purchase of their ancestor, so 
 may they by the form of the contract between the 
 donors and the purchasers be excluded from the pur- 
 chase. For a covenant sometimes bars succession, and 
 effect must be given to the contract and the will of the 
 donors, as in the following and like cases. * If any one 
 purchase to himself and his wife and their issue be- 
 gotten in. lawful matrimony ; by such a purchase the
 
 194 BRITTON. [I, *93, 
 
 purchasers have only a freehold for their two lives, 
 and the fee accrues their issue if there be an}' already 
 born ; and if not, then the fee remains in the person 
 of the donor until they have issue ; l and in case the 
 purchasers have no issue, or have issue which fails, the 
 purchase will revert to the donor. And if one of the 
 purchasers die, the other shall retain the purchase for 
 the term of his life. And if they have no issue, and 
 the tenant commits felony, the donor shall have the 
 reversion, and the chief lord shall have no escheat. And 
 if the donor has set his foot on the land in name of 
 
 1 The treatise of Britton appears to have been compiled after 
 the date of the statute De donis conditional ibus, 13 Edw. I., and 
 even of the statute Quia emptores terrarum, 18 Edw. I., (see the 
 Editor's Introduction); but before the effect of these statutes 
 upon the law had become apparent. The observations of the an- 
 notator in MS. N. further illustrates this change of law. ' Before 
 the statute [Quia emptores] the donor could charge or discharge 
 the tenements at his will, and put one or more conditions in the 
 charter. But since the statute no charter or gift was condi- 
 tional save gift in fee tail, because every tenant by force of the 
 statute must hold of his chief without mesne. Wherefore some 
 of our companions (les uns de nos compaignons) say that this 
 chapter [of Britton] is vain and antiquated (veyn e antiquite). 
 But let them say what they will (dient lur talent); for it is said 
 ' covenant conquers law,' as, if any one desires that any of these 
 conditions may hold, he may give the tenement in fee simple, 
 and then make indentures containing the conditions at his will ; 
 and thus by these collateral covenants (covenans den en coste) 
 one may recover the land either by his own force or by force of 
 law as by writ of covenant. So that, although the charter was 
 not conditional, the conditional writings defeat the charter/ 
 See some further observations on sections 4, 5, and 6.
 
 I, *935.] OF CONDITIONAL PURCHASES. 195 
 
 seisin, and is ejected or deforced, he shall recover by 
 this assise. 
 
 3. A condition may be made in many ways ; in one 
 way to the advantage of the purchaser, as upon con- 
 dition that he does not give or alien, and sometimes to 
 his prejudice, as upon condition that he do not hold in 
 fee, but only for a term. There are four principal 
 heads of conditions which are allowable in gifts and 
 other contracts, namely these : I give to thee, so 
 that thou give to me : I do, so that thou do : I do, so 
 that thou give : I give, so that thou do. These con- 
 ditions so bind the parties by their contracts, *that 
 each is bound to the other in such a manner, that if the 
 one gives or does such a thing, the other is bound and 
 obliged to do the counterpart according to the contract ; 
 so, in the negative, that if the one does not do such a 
 thing, the other is not bound t.o do such a thing. And 
 if the one does the act, and the other will not do the 
 act, it is lawful for the donor to take back his gift ; 
 and if he is deforced thereof, he shall be aided by this 
 assise. 
 
 4. A purchaser shall also have the like remedy, 
 where certain lands are promised to him, and writings 
 made thereof, on condition that he marry the sister or 
 daughter of the donor, and the purchaser marries her 
 before the donor puts him in seisin of the lands. If 
 the purchaser, seeing that the donor will not keep his 
 covenant with him, puts himself in seisin of the land, 
 in person or by another who takes possession in his 
 name, and he is ejected or deforced, he shall be aided
 
 196 BK1TTOK [I, 
 
 by this assise. 1 And if the donor performs his con- 
 tract in part, and in part not, in such case the purchaser 
 shall be aided by our writ of covenant ; or of escheat 
 bv detainer of the services for two years, as was pro- 
 vided at Gloucester. 2 
 
 5. If the donor says thus : I give thee so much land 
 with the appurtenances, to have and to hold to thee 
 and thy heirs if thou have heirs of thy body begotten : 
 in such gifts the purchaser purchaseth only a freehold, 
 but if he has issue, the fee and the right then first 
 accrue to him, *so that he will be able to give and alien 
 the land, although the issue fail, because the condition 
 is satisfied ; 3 and the brothers of the purchasers or 
 their other remote heirs shall inherit such a purchase. 
 
 1 ' That which is said, that the purchaser may thrust himself 
 into seisin upon the marriage, is not well said as to the present 
 law (quant a ore). For, if he can aid himself by writ of cove- 
 nant, well ; if not, let him provide better another time. Note 
 in MS. N. 
 
 2 The conclusion of this sentence is obscure ; and probably the 
 text is corrupt. The reference appears to be to the fourth chapter 
 of the Statute of Gloucester (6 Ed. I.), by which a remedy was 
 provided to a donor or lessor to recover the land in case of the 
 nonpayment for two years of a fee-farm rent or other service re- 
 served amounting to a fourth part of the value of the land. The 
 writ by which this remedy was enforced was called Cessavit 
 per biennium. (Vet. Nat. Brev. 138.) This statute is cited in the 
 corresponding passage of Fleta, as furnishing a remedy for a 
 breach of a condition. 
 
 3 ' This is all void ; for the gift is [qu. treated in the text as] a 
 conditional gift, and not in fee tail.' Note in MS. N.
 
 I, *94 5.] OF CONDITIONAL PURCHASES. 197 
 
 6. If the donor say, I give thee ibis land because 
 tbou bast served me well : although the cause may be 
 false, it does not follow that the gift is not good. And 
 in the following case also the gift shall be good and 
 firm, whether the cause be true or false : I give thee 
 this land because thou wilt serve me well. But if the 
 donor say, I give thee this land if thou wilt serve me 
 well, the gift here is doubtful and in suspense until the 
 condition is satisfied. 1 
 
 7. "Where a gift is made upon condition of something 
 in future, and the condition is possible, there the gift 
 will be deferred until satisfaction of the condition ; 
 and if the purchaser brings any plaint, the donor may 
 plead this exception, that no action or plaint can accrue 
 to him until after satisfaction of the condition; as 
 where a gift is made to another on condition that he 
 give 10Z. But if tbe condition be impossible, then the 
 gift is of no virtue or force, as if the condition be thus : 
 I give to thee, upon condition thou procure me the 
 moon. 
 
 8. Some gifts depend upon the will of another, as in 
 the following case : *I give to thee, if John is willing ; 
 here the purchase is of no avail, unless John assents to 
 it. Some purchases are casual, as in this case : I give 
 to thee to hold, if I shall be made a bishop. 
 
 1 ' What is here said of gifts made for a certain cause, and also 
 of gifts depending upon the will of another or upon chance, is 
 bad law, (rien ne valt.) For it matters not (il ne me chaud) for 
 what cause you give, so you put me in seisin to have and to hold 
 to me and my heirs of the chief lord. Note in MS. N.
 
 198 BRITTOK [I, *95. 
 
 9. If a gift be made upon more conditions than one, 
 and one of the conditions is satisfied, the gift will be 
 valid, if the conditions are several ; but if they are 
 joint, then all must be fulfilled to make the purchase 
 effectual. For it is not the same thing to sa} T , I give 
 to thee, if thou do such a thing or such a thing, and to 
 say, I give if thou do such a thing and such a thing, 
 jointly. For in one case, satisfaction of one of the con- 
 ditions is sufficient, and in the other it is not sufficient 
 unless all the conditions are satisfied. 
 
 10. Another kind of condition which is permissible 
 in gifts is negative, as where a gift is made to the 
 youngest son, or to a stranger, to have and to hold to 
 
 7 O 
 
 him and his heirs, if the elder brother shall have no 
 issue of his own, or no issue by such a wife. So, where 
 the gift is made to the purchaser, to have and to hold 
 to him and the heirs of his body begotten, and if he 
 shall have no issue, that then the gift shall revert to 
 the donor, or to certain other persons, to hold jointly, 
 or severally, one after the other. 
 
 11. There are other kinds of conditions, which are 
 double ; as where the donor says, if thou shalt have no 
 heirs of thy """body begotten, or if thou shalt have heirs 
 and they shall fail, then the gift shall revert to me and 
 my heirs : or thus, if such a thing do not happen, then 
 thou shalt have the land for ever. 1 Gifts may also be 
 made upon several conditions, as in this example : to 
 have and to hold, so thou do, or so thou do not such 
 
 1 This example appears imperfect. Probably some words are 
 lost out of the text.
 
 I, *95 b.] OF CONDITIONAL PURCHASES. 199 
 
 and such things, and if thou do, the gift shall return 
 to me ; or thus, to have and to hold so thou do not do 
 such a thing, or several things, without my leave, and 
 if thou so do, then it shall be lawful for me to put my- 
 self in seisin of the gift and retain it for ever. 
 
 12. If the purchaser do not in such case according to 
 the covenant, and the donor throw himself into seisin, 
 he shall keep it ; and if he be thereof ejected or de- 
 forced, he shall recover by this assise. But if he can- 
 not in any way put himself in seisin, then he may avail 
 himself of our writ of covenant, in which the process 
 is by the great and little Cape, as in a real action. 
 And if the charters or writings of the original contract 
 are denied in judgment, it will not avail to prove the 
 deeds without making proof withal of the condition 
 being satisfied. For these two things may well stand 
 together, that the deeds may be legal, and that the 
 condition may not have been satisfied. 
 
 13. A condition sometimes bars the descent of an 
 inheritance to the right heirs ; as in this manner : I 
 give thee such land for a certain term ; *and if I die 
 Avithin that time, then the land shall remain to thee 
 and thine heirs, or for term of life, or for other term. 
 Sometimes a condition makes a freehold of a term, and 
 the reverse ; as in this case : I give thee, to have and 
 to hold during the life of the purchaser, and for such a 
 time over ; and if thou die within that term, then I 
 will that thy heirs or thy executors shall hold the gift 
 for the same term. The chief lords however cannot be 
 deprived of anything ; for a term does not take away
 
 200 BRITTON. [I, *90_ 
 
 wardship, but only delays it until a certain time ; un- 
 less the heir is an idiot, in which case the lord loses 
 his wardship and the farmer his term, until it be other- 
 wise ordained, at least during the life of the idiot. 
 This rule was laid down by the common assent of the 
 great lords of the realm and by the provision of Robert 
 Walrand, in whose heir and the heir of his heir the 
 statute first took effect. 1 
 
 14. If a gift is made on condition that if the donor 
 shall pay so much at certain days and at a certain place, 
 the gift shall return to the donor, and if not, the land 
 shall remain to the creditor in fee, to him and his heirs ; 
 now although it be so expressed in the charter of feoff- 
 ment, if the creditor dies before the day when the pay- 
 ment should be made, his heirs can demand nothing 
 """before the day ; as shall be mentioned among the 
 exceptions in Mortdancester. 
 
 15. A fee may be made to arise out of a term ; as is 
 the case where one going a pilgrimage leases his land 
 for a term of years with this condition, that if he does 
 not return, the land shall remain in fee to the termor ; 
 such a condition shall always be a bar to the action of 
 the heir of the pilgrim. And thus it appears that 
 feoffments and purchases may be conditional as well 
 as simple and without condition. 
 
 1 ' See Coke, Inst. pt. 2. p. 109. Robert Walrand was a Justici- 
 ary of the latter part of the reign of Henry III. (Foss, Judges of 
 England, vol. iii. p. 503.)
 
 1, *96 6.J OF REVERSIONS AND ESCHEATS. 201 
 
 CHAPTER VI. 
 
 Of Reversions and Escheats. 
 
 1. A purchase sometimes reverts to the donor ; as is 
 the case with a gift made in marriage, for default of 
 heirs. So likewise by form of gift ; and sometimes for 
 want of the words "heirs of assigns," and for want of 
 " assigns of assigns.'' It is therefore necessary in every 
 good purchase that the feoffment be made to have and 
 to hold to the purchaser, his heirs and assigns, and 
 to the heirs and assigns of his heir and to the heirs 
 and assigns of his assigns. For if no mention is 
 made of any of these, and alienation is afterwards 
 made contrary to the form of the gift, the donor 
 may have his action for the reversion. Land also 
 returns to the feoffor or his heirs, or to his assigns by 
 virtue of a fine levied in our court, when it has been 
 leased for term of life or for years, however long the 
 term may be. 
 
 *2. Some purchases escheat to the lord of the fee, as 
 where the purchaser is guilty of felony and undergoes 
 judgment. So also, when the purchasers die without 
 heirs. So, when the tenants abandon their tenements. 
 In these cases, if the lords do but set their foot upon 
 the land in name of seisin, they are sufficiently seised 
 in respect of the proprietary right which descended to 
 them, unless they are barred by negligence on account
 
 202 BPJTTON. [I, 97 
 
 of too long a delay. But if they put themselves in 
 seisin as soon as the fee is vacant, or within four 
 days after the vacancy, if they are resident near, or 
 within fifteen days if they live at a distance, or 
 within a still longer time as is mentioned below, or any 
 other person does so in their names, and they are after- 
 wards ejected or deforced, they shall have their recov- 
 ery by this assise. But if they delay too long, it ma\ r 
 then be more troublesome to eject the tenants than to 
 proceed by judgment of our court. It is therefore their 
 better course to recover their right by writ of es- 
 cheat. 
 
 3. If a villain or a sokeman make a gift or feoffment 
 of the villenage of their lords, or if the lord's bailiff or 
 farmer, or other in whose person both rights are not 
 united, make a gift of what belongs to another, or if 
 a married woman disposes of her own property without 
 her husband, *the seisin may in the same manner be 
 taken back, whoever be tenant, whether the disseisor 
 or his son, and although the latter may be under age, 
 provided it be done in time ; but, if not, it is then bet- 
 ter for him to proceed by judgment of our writ of entry 
 than by his own force.
 
 I, *97 .] OF PURCHASES BY VILLAINS. 203 
 
 CHAPTER VII. 
 
 Of Purchases by Villains. 
 
 1. Yillains may purchase as well as freemen ; but 
 nevertheless whatsoever a villain fairly purchases, he 
 purchases to the use of his lord, unless the purchase be 
 made of the lord, provided that the lord is in seisin of 
 him and of his chattels and of his suit ; so that the lord 
 may enter upon the purchase of his villain, later or 
 sooner, as he pleases. For in this case no time runs 
 against him. Villains, therefore, ejected by their 
 lords, in whosesoever fee the purchase may be, shall 
 not recover against their lords by this assise, or have 
 any other remedy. The lord however, after he has 
 been seised of the purchase, and of the charter of his 
 villain, may give to his villain other land to the value, 
 or the same land, *to hold of him in villenage, or may 
 thenceforth hold it in demesne. But in this case the 
 the lord will be bound to perform the services which are 
 due to the chief lord in respect of such purchase. 
 
 2. But if the villain purchases any land or other tene- 
 ment from his lord himself, who enfeoffs him to have 
 and to hold to him and his heirs, whether the purchase 
 is given to be held by free services or by villain cus- 
 toms, and though there is to be merchet or redemption 
 -of flesh and blood for the tenement, vet if the lord after-
 
 204 BRITTON. [I, *9S. 
 
 wards ejects the villain from that or any other purchase, 
 the purchaser shall recover his seisin by this assise. 
 For since the lord intended in his feoffraent that the 
 villain should have heirs, he thereby renounced every 
 exception of villenage on account of the villain services 
 issuing therefrom, so that this will avail him nothing. 
 For it is not the same thing to hold freely, and to hold 
 by free services. For whosoever holds to him and his 
 heirs, although he does not hold by free services, yet 
 it follows not that he does not hold freely, that is, as a 
 freeman. And by such feoffment the villain becomes 
 a freeman, whether homage be expressed or not. 
 
 3. And if a villain purchase tenements to himself 
 and his heirs of any other than his lord, and some other 
 than his lord eject him, *the villain may recover by 
 this assise against any person except his lord, 8 if the 
 lord be not seised of him, his chattels, and his suit, 
 as in the case of a villain fugitive from his lord, 
 and claiming freedom by any title, as by clergy, or 
 long continuance in a free condition without being 
 claimed by his lord, or by any other title, as has been 
 said in the chapter concerning Naifty. And therefore 
 if such villains die in that condition, and the lords put 
 out their heirs, they shall recover by assise of Mort- 
 dancester. For where assise of Novel Disseisin holds 
 in the case of the father, there assise of Mortdancester 
 will lie for his heir. 
 
 1 Some words equivalent to ' and even against his lord ' have 
 probably slipped from the text here. See above, 1. i. c. 32. s. 7. 
 p. 199 ; and below, c. 18. s. 2, 3.
 
 I, *98 5.] OF PURCHASES BY VILLAINS. 205 
 
 4. If one who is villain to more than one lord pur- 
 chases to himself and his heirs, whichever of his lords 
 shall first oust him may retain the seisin for ever ; J and 
 if all the lords, seize the purchase of the villain at the 
 same time, then let it be theirs to hold in common, 
 until they have divided it. 
 
 5. If the villain sells in fee the purchase which he 
 has bought in fee, before the lord shall have taken and 
 seized it, and the lord ejects the free purchaser after 
 he has had peaceable seisin of the gift of the villain, 
 the person ejected shall recover his seisin by this assise ; 
 and the lord will be for ever after barred of his action 
 by his negligence. 
 
 6. When any villain who is a fugitive from his lord 
 makes a purchase, the lord cannot have any action or 
 set up any *claim against this purchase, until he has 
 recovered and established his right to the villain. And 
 if he has taken anything from him, the villain need 
 never answer his demand, until he has fully restored 
 to him the land and the chattels found out of his fee, 
 which his lord has taken from him. This is by reason 
 of the words in writ, ' with his chattels and all his 
 suit.' For if the villain was not fully reinstated, and 
 put in possession of the same, the words of the writ 
 
 1 ' When several parceners are seised of a villain, if he purchase 
 in the name of one parcener, the property accrues to that par- 
 cener ; if in the name of all, to all ; if in his own name, the one 
 who enters may hold it, and the others are without recovery. 
 For if the purchase of a villain be aliened before the entry of the 
 lord, no advantage can accrue to him.' (Note in MS. N. ) The 
 several cases are similarly distinguished by Bracton, f. 25 6.
 
 206 BRITTON. [I, *99. 
 
 would be thrown away, and our precept would be vain, 
 in commanding a man to be put in possession of a thing 
 of which he is himself seised. But when he has proved 
 his title to the person, then he may by judgment and 
 by law seize the lands and chattels and all the purchase 
 of his villain. 
 
 CHAPTER VIII. 
 
 Of Charters. 
 
 1. It has been said above in the chapter concerning' 
 Debt that it is necessary for an obligation to be clothed 
 in five different ways. The same clothing is also neces- 
 sary for gifts and purchases. And as to that clothing 
 by writing, which is called Charter, it must be under- 
 stood that there are several kinds of charters, as 
 charters of kings and charters of private persons ; and 
 of the king's charters some are single, some common, 
 some universal. *Of simple charters, some are of pure 
 feoffment and single, others of conditional feoff men t ; 
 some are charters of confirmation, and some of quit- 
 claim. 1 
 
 2. Single charters of pure feoffment without condi- 
 
 1 This is from Bracton ; but there is some confusion arising 
 from the equivocal use of the word simple. The word privata is 
 similarly employed in Bracton to denote, on the one hand, a 
 charter made by a private person ; and on the other, one granted 
 by the king to an individual, in distinction from one granted to 
 a community or to the entire kingdom.
 
 I, *99 J.] OF CHARTERS. 207 
 
 tion ought to remain with the purchasers and their 
 heirs. Conditional charters ought to be indented in 
 two or three parts, so that one part sealed by the pur- 
 chaser may remain with the donor, and another part 
 sealed with the seal of the donor may remain with the 
 purchaser and his heirs, and the third part be put into 
 an impartial hand, 1 so that no one may afterwards 
 demand a right in anything by form of gift or by con- 
 dition, but that our court may be certified of the form 
 by the charter. For no action or exception avails un- 
 less it can be proved, and it is useless to pray the court 
 that the adverse party may be compelled to produce a 
 deed, because no one is obliged to arm his adversary. 
 
 3. As to royal charters, whether they are allowable, 
 or false or doubtful, can be adjudged by none but our- 
 selves. For it is the office of the author to determine 
 and judge concerning them. Wherefore we will that 
 such doubts and illegalities be referred to none but 
 ourselves, and that all interpretations be made by us. 
 
 *4. In single gifts it is sufficient to say thus : ' Know 
 all men present and to come that I, John, have given 
 to Peter so much land with the appurtenances in such 
 a town ; ' and it is proper to specify between what 
 boundaries. And it is not necessary to say, ' to Peter 
 and his heirs,' where Peter intends to purchase fee and 
 frank tenement, but the heirs will be specified after- 
 wards, thus : ' To have and to hold to the same Peter 
 
 1 Bracton advises, that the deed should be either in two parts, 
 or, if in one, should be deposited in cequa manu. Bracton, 
 t 33 b. So Flete, 196 ( 2).
 
 208 BIUTTON. [I, *100. 
 
 and his heirs.' Neither is it necessary to say, ' grants 
 and confirms,' though it is usual to do so ; nor is there 
 occasion to say, ' for homage,' nor ' for service,' if it is 
 not intended by the contract ; for however homage or 
 service are expressed in the charter, yet the chief lord 
 of the fee shall not lose anything. Some persons how- 
 ever may do so in an exchange of seigniories, 1 as in 
 making a feoffment by custom of knight's service ; and 
 in such case it is proper to specify the homage in the 
 feoffment. Appurtenances are named to include both 
 corporeal things, such as hamlets appurtenant to chief 
 manors, and common of pasture, turbary, fishery, or 
 the like ; and things incorporeal, as franchises, and 
 servitudes of tenements. Then follows : ' to have and 
 to hold the aforesaid land with the appurtenances, to 
 the same Peter and his heirs, doing therefore to the 
 chief lords of the fee the services thereto belonging.' 
 * And it should be understood, that it is a very necessary 
 clause to specify the service by number, quality, and 
 quantity, and to what persons they are due, so that 
 neither the lords of the fee nor any other may demand 
 more than right, without the feoffors being specially 
 obliged to acquit and defend the purchasers. Then 
 follows: ' for all services, customs, and demands.' And 
 if the gift is made for term of life, or for term of years 
 
 1 There is a difficulty in the interpretation of this passage, 
 which I confess I cannot clear up. The full effect of the statute 
 Qnia emp'ores terrarum, recently passed at the time when this 
 book wjis composed, does not appear to have been understood. 
 See p. 236 note.
 
 I, *100 &.] OF CHARTERS. 209 
 
 over, or in marriage, or in fee tail, or upon condition, 
 the condition shall be specified in the charter indented, 
 us above mentioned. 
 
 5. In absolute feoffments it is not proper to say. ' to 
 hold of the donor and of his heirs ; ' for whatever be 
 said, it will not follow but that the purchaser will 
 become tenant to the lord of the fee, in chief without 
 mesne. And beyond this there is no occasion to say, 
 4 freely, quietly, well, and in peace.' For these words 
 belong rather to the form than to the substance of the 
 business; but if such words are put in, they are harm- 
 less. "With respect to tenements given in marriage, 
 the form and issue supply the place of a charter ; never- 
 theless a charter does no harm. 
 
 6. Sometimes a gift may be enlarged, sometimes 
 restricted. It may be enlarged in this manner : ' to 
 have and to hold to the aforesaid Peter, his heirs, and 
 assigns ; ' and sometimes further thus : ' and to the 
 heirs and assigns of his assigns.' *It may be restricted 
 as follows : ' to hold until I pay him ten pounds,' or 
 'until I or my heirs pay him ten pounds,' or 'until I 
 or my heirs or assigns pay Peter or his heirs or assigns.' 
 In another way thus : ' to hold to him and his heirs 
 without making alienation,' or 'without making aliena- 
 tion to such a one,' or ' except to such a one,' or thus, 
 * to hold during the life of Peter, and after his decease 
 that the gift revert to Thomas and the heirs is- 
 suing from him, and if he has no such heirs, then 
 return to Theobald, his heirs and assigns.' And 
 
 in all these cases we will that the intention of the 
 14
 
 210 BJJITTON. [I, *100 I. 
 
 donor be observed, so far forth as law and right will 
 allow. 
 
 7. It must be understood that no feoff or is bound by 
 the general clause of acquittance to acquit the fee from 
 making contribution for the knighting, of the lord's 
 eldest son, or the marrying of his eldest daughter, nor 
 from sheriff's aid. nor from common amercements or 
 lines of the county or hundred, nor from suits due to 
 the county or hundred court or elsewhere. Any one, 
 however, may by a special clause bind himself to acquit 
 his purchaser from all these services, and such obliga- 
 tions are enforced by writs of mesne. 
 
 8. Then there is the clause, ' And I and my heirs will 
 warrant the tenement with the appurtenances, and will 
 acquit and defend the same to the aforesaid Peter, his 
 heirs and assigns for ever.' And this clause of war- 
 ranty may be more full thus : ' his heirs and assigns 
 and the assigns of his assigns.' And by reason of this 
 clause it is useful in many cases for purchasers to take to 
 themselves the charters of their feoffors, so that if the 
 the feoffors have nothing whereby they can warrant if 
 need be, then the purchasers by virtue of the charters of 
 their feoffors may vouch to warrant the feoffors of their 
 feoffors, to which voucher the\ r shall be admitted where- 
 soever it is found that the warranty of the first feoffors 
 extends to warranty without mesne. Acquittance and 
 defence are inserted to the intent that the person of 
 whom the purchaser is to hold in chief may be obliged to 
 acquit and defend him, 1 in case any lord paramount or 
 
 1 This sentence appears to imply that the purchaser will hold
 
 V*101.] OF CHAKTEKS. 211 
 
 other should demand of him other services than the 
 *purchaser shall owe to the lord, of whom the purchaser 
 holds in chief. 
 
 9. As to charters of comfirmation and of quitclaim, 
 let every one know that such charters made between 
 persons out of seisin of any right are of no avail, where 
 the parties to them are divested of the right of posses- 
 sion or the right of property. 1 Therefore it is a good 
 precaution for those who are having charters prepared, 
 to take care that the date of the place and of the year 
 be inserted. 
 
 10. Afterwards let some of the neighbours who are 
 freemen be called as witnesses, in whose presence the 
 charter should be read and sealed, and the names of the 
 witnesses should be written in the charter. It would 
 also be a good precaution to procure the seals of the 
 witnesses to be affixed, together with the seal of the 
 lord of the fee ; or in the presence of the parties to 
 have the charter enrolled in a court of record. And al- 
 though the witnesses be not called, it is sufficient if the 
 deed be afterwards recorded and acknowledged before 
 them. If the feoffor has no seal of his own, a bor- 
 
 of the donor, who promises to acquit and defend him, and there- 
 fore to be inapplicable to the law as altered by the statute Quid 
 emptores terrarum. (18 Ed. I. c. 1.) 
 
 1 This passage appears to be taken from Fleta, where, however, 
 the text is scarcely less obscure. I understand the meaning to 
 be, that, in order to give validity to a charter of confirmation, 
 the confirmee must be in possession, and the confirmer must have 
 the right of property.
 
 212 BRITTON. [I, *101 b. 
 
 rowed seal will be sufficient. There are many modes 
 of purchase in which no charter is required ; as by law- 
 ful judgment of our court ; by surrender ; by release 
 and quitclaim ; by default ; by assignment of dower ; 
 by having issue by the law of England ; and by several 
 other ways. 
 
 11. But inasmuch as, although a charter is made, 
 witnesses called, and the deed sealed in their presence, 
 yet whatever has been done and said avails nothing 
 unless livery of seisin be made by *the donor to the pur- 
 chaser, we must therefore say somewhat concerning 
 induction into seisin, how seisin ought to be delivered, 
 and how purchasers ought to receive it, of what things 
 a man may be put into seisin immediately, and of what 
 not until a certain time; and of what things induction 
 into seisin is unnecessary. 
 
 CHAPTER IX. 
 
 Of Seisins. 
 
 1. Forasmuch as the mere grant and authorization 
 of the donor is not in general sufficient for purchasers, 
 unless possession follows, with respect to possessions 
 it must be understood, that possession is properly the 
 seisin and holding of anything in fact and in intention, 
 together with the property. There are some things 
 however of which one cannot commonly retain posses- 
 sion or seisin ; for of things incorporeal there can be no
 
 I, *J02.] OF SEISiJS'S. 213 
 
 delivery ; nor any proper seisin without a corporeal 
 substance. But usage by long prescription supplies in 
 time a legal title. 
 
 2. Livery and induction of seisin is a voluntary trans- 
 lation of a corporeal thing belonging to the person 
 transferring it or to another, from the seisin of the 
 true owner to the person of the purchaser, whether 
 the owner transfers it in person, or by another on his 
 behalf attorned and appointed by his letters patent. 
 *Such letters should be in duplicate, one to remain with 
 the attorney, the other with the purchaser. 
 
 3. When any livery of seisin is to be made, the donor 
 should first remove all his movable things which he 
 has in the tenement, and his wife and children and all 
 his family, so that there be nothing of his which he 
 has not either removed or sold or let to farm, so that 
 there may be no presumption that the donor intends 
 to retain anything. For as long as he has any inten- 
 tion of retaining, no freehold ever accrues to the pur- 
 chaser. 
 
 4. But if the donor vacates the tenement in fact and 
 in intention, and delivers the seisin thereof to the 
 purchaser, who receives it in fact and in intention, and so 
 keeps it, a freehold, and fee (if the purchase be in fee) 
 immediately accrue to the purchaser, by only setting his 
 foot in the tenement, by virtue of the right, and of the 
 union of wills which are joined, to wit, of the true owner 
 in whose person both the right and the seisin were 
 united, and of the purchaser who receives both the 
 right and the seisin. Therefore, if any one ejected the
 
 214 BRITTON. [I, *102 b. 
 
 purchaser from the land immediately after the gift, 
 he should recover it by this assise as his freehold, 
 although he had not taken any esplees, by virtue of the 
 seisin. For neither user nor esplees are of the sub- 
 stance of the gift, but are equivalent to a declaration 
 and evidence of seisin . And whereas the purchaser will 
 thus have had the seisin in deed and in intention, *so 
 without both act and intention he can never so lose it, 
 as not to be able to recover it. 
 
 5. But where any farmer has a term in the land, and 
 is neither ejected nor attorns to the purchaser, if the 
 donor dies during that term, his heir may recover the 
 land by reason of the continuance of the seisin of the 
 termor, who occupied it in the name of the donor. 
 Wherefore no seisin can be legally delivered, except by 
 judgment of our court unless while the seisin be vacant. 
 The heir also shall recover seisin in case the seisin of the 
 farmer has continued with that of the purchaser, inas- 
 
 ' much as the purchaser never had peaceable seisin in 
 the lifetime of the donor. But if the farmer attorns 
 to the purchaser, although he continues to hold his 
 term, provided he has admitted that he holds of the 
 purchaser, the gift is not thereby of less validity ; for 
 in such case the feoff ment and term may well exist 
 together in different persons. 
 
 6. Where there is nothing of the donor's in the 
 tenement, and the tenement is a principal manor or 
 mansion, there it is enough for the donor in the pres- 
 ence of some free neighbours as witnesses, and of 
 some of the tenants, to deliver seisin to the purchaser
 
 I, *103.] OF SEISINS. 215 
 
 by the hasp or ring of the door, or by shutting the 
 gate ; and thereby the purchaser becomes seised not 
 only of the mansion, but of whatsoever was named in 
 the charter and was properly the donor's, annexed to 
 the mansion, as demesnes, rents, woods, ^meadows, pas- 
 tures, and other frank tenements. But if a villain of the 
 donor has made a free purchase, of which the donor has 
 never been seised, the purchaser does not immediately 
 become seised of such purchase. If seisin is to be 
 make of a tenement where there is no house, then 
 .sufficient livery is made by a rod or by a glove in the 
 presence of good witnesses. 
 
 7. It is to be understood, that the freehold never 
 yalidly attaches to the purchaser until it is extinct in 
 the donor, except by long and peaceable seisin. Nor 
 can anything prevent the freehold from remaining in 
 one of the two persons, and it may happen to remain 
 in the person of the donor, although the donor may 
 intend that the freehold and right should be transferred 
 to the person of the purchaser, and although he may 
 put the purchaser in seisin thereof, as by his family 
 or chattels remaining in the tenement, which creates 
 a presumption in favour of the heirs of the donor, that 
 the donor retained the fee and freehold in intention, al- 
 though he made it otherwise appear by colour of deed. 
 And in such case if the purchaser be ejected by the heir 
 of the donor, he shall not recover by this assise, by rea- 
 son that the donor did not wholly divest himself in his 
 lifetime, but the purchaser found the tenement full, and 
 the 'donor always in seisin by his chattels and family ;
 
 216 BRITTON. [I, *103 b., *104. 
 
 for by the continuance of the seisin it appears that the 
 donor did not intend to part with the freehold. *But 
 if the chattels be stolen or otherwise lost upon the 
 tenement, and the bailiffs and servants of the donor are 
 ordered by him from that day forward not to remain 
 there, unless to wait upon the purchaser as owner of 
 the tenement, in such case there is no presumption 
 that the donor meant to retain anything. So if it 
 was not by the donor's consent or allowance that any 
 of his family or of his chattels remained in the tene- 
 ment in his name. 
 
 8. If a single person or a single beast abides on the 
 part of the donor in the tenement given, the donor 
 thereby retains the seisin as well as by several ; as in the 
 case of a feoffor who having given his common of 
 pasture still causes the common to be fed by one 
 beast ; for by that one beast the donor retains all the 
 common. So a lord may retain a rent by the hand of 
 one tenant, where several tenants are jointly bound 
 to pay the rent, and the lord has sold it and yet retains 
 the rent, as above said, by means of one of the par- 
 ceners. And because such presumptions are prejudi- 
 cial, it is proper that in every regular livery of seisin 
 the possession be absolutely vacant before the free- 
 hold can attach to the purchaser by the livery. 
 
 *9. When a lawful livery of vacant seisin has been 
 made with the solemnity of witnesses, so that the donor 
 is voluntarily ousted of the seisin and the purchaser put 
 therein, the donor may not afterwards repent thereof. 
 For if he should return immediately after his departure,
 
 I, *104 &.] OF SEISINS. 217 
 
 and eject the purchaser, the ejected would recover by 
 this assise. 
 
 10. If the donor perchance return after such seisin 
 made to the purchaser, and pray to be admitted into 
 the tenement as a stranger, although the donor die in 
 the tenement, yet by such abode and such seisin no 
 right accrues to his heirs, unless they can prove that the 
 donor conducted himself in the tenement as owner in 
 the same way as he had before done, and not as bailiff 
 or servant of the purchaser. But to remove all disputes, 
 it is better for donors to make their abode elsewhere 
 than in tenements of their own gift. And if any donor 
 by the good nature of the purchaser is after the gift 
 admitted into the tenement, and the purchaser perceives 
 that the donor intends to eject or disturb him in his 
 seisin, or to act as if in his own property, let him im- 
 mediately proceed by this assise, or if he thinks it better 
 eject him without judgment. And if the assise pass in 
 favour of the purchaser his estate is so far confirmed. 
 
 11. If the donor or the purchaser dies before livery 
 of seisin, ^nothing accrues by the gift to the heirs of 
 the purchaser, nor is anything lost to the heirs of the 
 donor ; and if the purchaser thrust himself in after the 
 decease of the donor, the heir of the donor is not to be 
 prevented from putting himself in; and if he be ejected 
 or disturbed, he shall recover by this assise. And if by 
 his own negligence he cannot avail himself of this assise, 
 he shall recover by assise, of Mortdancestor, or by other 
 writ according to the occasion. 
 
 12. If any person has made a purchase in another's
 
 218 BKITTCXN. [I, *105. 
 
 name, and by virtue thereof keeps himself in seisin, 
 and he in whose name the purchase is made disavows 
 the deed and the purchase, and some stranger ejects 
 the procurator, the ejected shall not recover by this 
 assise, because he did not hold the seisin in his own 
 name, neither shall he in whose name the purchase was 
 made recover, since he never was in seisin either in 
 deed or in intention. Therefore, as the freehold is not 
 in the heirs of the purchaser, it still remains in the 
 donor, and in such case the donor shall recover by this 
 assise. Children however under age, and such as want 
 discretion, cannot to their own detriment disavow a 
 purchase ; for, as a general rule, their estate may be 
 rendered better but not worse. 
 
 13. If any donor appoints a servant or friend to put 
 the purchaser in seisin, and livery of seisin is accord- 
 ingly made to the purchaser in the lifetime of the feof- 
 for, the feofment shall be good. *So likewise, if livery 
 be made soon after the death of the feoffor, before the 
 purchaser knows of his death. But if the heir of the 
 feoffer after his death prohibits the seisin, before livery 
 is made to the purchaser, the gift will be annulled, and 
 the heir shall recover the tenements, because his an- 
 cestor died seised. 
 
 14. Advowsons of churches cannot be given or pur- 
 chased simply without some corporeal thing annexed, 
 as soil, rent, or other thing issuing out of the soil. And 
 even if they should be so aliened, yet purchasers can- 
 not be in full seisin of the advowsons until they have 
 presented to the churches, and their presentees have
 
 I, *105 &.] OF SEISINS. 219 
 
 been admitted and instituted by the bishop. For if the 
 purchaser sell the advowson before he has been so seised 
 by his clerk, and the buyer be impleaded by another, 
 and thereupon vouches his feoffor to warranty, the 
 feoff or may plead that he is not bound to warranty, by 
 reason that he never was seised of the advowson, the 
 church not having been void, but the seisin still re- 
 mains in the first donor by reason that it never took 
 affect in the person of another. And this reason would 
 be allowable, inasmuch as no one can give that which 
 he hath not, although the feoffor or the purchaser 
 was fully seised of the manor with all the appurte- 
 nances. 
 
 15. It is to be understood, that in some cases an ad- 
 vowson may be included in appurtenances, and in some 
 not. For if one give a manor with all the appurte- 
 nances without any reservation being specified in the 
 gift, and the advowson of one or more churches is ap- 
 pendant thereto, in such a case the purchaser purchases 
 the advowsons under the word appurtenances. But 
 where the donor gives the manor entirely or by parcels, 
 und in eacli gift the appurtenances are expressed, yet 
 if the donor reserves to himself any parcel of the 
 whole, entire with the appurtenances, in such case the 
 advowson remains in this parcel, unless the advowson 
 is specified in the alienation. So if the manor be aliened 
 in parcels to divers persons, without anything being re- 
 served to the donor, and each parcel be aliened with 
 the appurtenances without specif\ T ing the advowson, 
 the advowson shall belong to the last purchaser.
 
 220 BR1TTON. [I, *106. 
 
 CHAPTER X. 
 
 Of Purchase of Rent. 
 
 1. There still remains another kind of purchase, 
 which is made by attornment of rent or other service, 
 with or without the consent of the tenants ; as where 
 one attorns his tenant to become subject to a stranger, 
 as concerning his services issuing out of some tenement. 
 *In this manner are purchased seigniories, which some- 
 times by forfeiture or default of blood fall into demesne. 
 But in order that a tenant may be attorned without 
 his consent, it will be necessary to have the aid of our 
 court by levying a fine. 
 
 2. There is likewise another kind of purchase, which 
 is made of an annual fee, in money or other things, in 
 fee or for term of life, given in reward of service or for 
 exchange of land, or other thing, and for which the 
 donor may charge his tenement with distress if any 
 part thereof be in arrear to the purchaser, either by 
 recognizance in our court or by charter. The charter 
 may be in the following form. 
 
 3. * To all who shall see or hear this letter I, J. of B., 
 send greeting. Know that I have given to P. for the 
 service which he has done me (or for some other thing 
 certain) 100 of annual rent in N. and in S., so that out 
 of the manors aforesaid he may take the aforesaid rent 
 from year to year on the day of St. Michael, in whose-
 
 I, *106 &.] OF PURCHASE OF RENT. 221 
 
 soever hands the manors shall come, during the life of 
 the same P. (or in fee to him his heirs and assigns), and 
 whereof in the name of seisin I have delivered to him 
 1005. beforehand, and to the intent that the aforesaid 
 fee may not be detained from him, and that this grant 
 may be firm, I bind the aforesaid manors to the distress 
 of the same P. (or to P. his heirs and assigns), so that 
 they may *distrain in whosesoever hands they come, so 
 far forth as I myself might do, until they are fully paid 
 the principal fee and their damages. And I and my 
 heirs will warrant the aforesaid fee to the aforesaid P. 
 his heirs and assigns for ever.' As to the date and the 
 witnesses, let that be done which is mentioned in the 
 chapter concerning Charters. 
 
 4. Therefore, if there be any arrear of the annuity 
 due to such a purchaser, he may distrain the tenements 
 charged, and if he be disturbed therein, he shall have 
 remedy by this assise, provided the writings are proved 
 to be genuine.
 
 222 BRITTOK [I, *107. 
 
 CHAPTEE XL 
 Of Disseisins. 
 
 1. Petty assise is the recognizance of twelve jurors 
 concerning the plaintiff's right upon the possession ; 
 and it is called petty to distinguish it from the great 
 assise, after which there is no action or remedy. 1 
 This is not the case with the petty assise ; for though 
 the cause is lost in the petty assise, yet the plaintiff 
 may recover by attaint, or by writ of right, in respect 
 of property. 
 
 2. A person may be disseised in many ways. For 
 one is properly said to be disseised who is wrongfully 
 ejected out of any tenement which he peaceably held, 
 and in whose person the right of property in the fee, 
 and the right of possession of the freehold, and the 
 seisin were united. 
 
 *3. All seisins do not equally give a freehold title. 
 For the right heir hath sooner a freehold than he who 
 hath no right ; for the seisin of every right heir is so 
 tender, that the mere setting of his foot in the capital 
 
 1 ' There is no remedy beyond the great assise, on account of 
 the solemn dignity of the knights, who are as it were the king's 
 companions : for a knight cannot be attainted of falsehood but 
 by battle and by his peers. Therefore it is not to be supposed 
 that so noble persons will perjure themselves for any considera- 
 tion (a nul foer.)' Note in MS. N.
 
 I, 107 6.] OF DISSEISINS. 223 
 
 mansion of liis inheritance is sufficient for title of free- 
 hold, if it is done in the name of seisin, and while the 
 inheritance is vacant, no other person being found in 
 seisin. And the reason is on account of the conjunc- 
 tion of the right of possession with the right of prop- 
 erty. So likewise of every seisin taken to his use. 
 Wherefore if such heirs so seised by themselves, or by 
 their procurators or bailiffs or others who may be put 
 in seisin in their name, be ejected by any but ourselves, 
 we will that, of what age soever they be, they shall 
 recover by this assise. Also, if they be under age, and 
 have been in their lords' ward and admitted as heirs, 
 and their lord afterwards refuse to acknowledge them 
 as heirs, such heirs shall be forthwith aided by this 
 assise, whether the lord or any other be found tenant. 
 
 4. And if any lord after the death of his tenant finds 
 Ins fee vacant, and holds possession thereof, claiming a 
 freehold in the fee for default of appearance of the heir, 
 *and is ejected by one who is not heir, he shall be aided 
 to recover the possession by this assise, saving to every 
 one his right. 
 
 5. Where any younger brother finding the inheri- 
 tance of his ancestor vacant, enters and sets himself up 
 for heir, claiming fee and freehold, if he be ejected by 
 the right heir or another out of his peaceable seisin, 
 the disseisee shall recover his estate by this assise. 
 For the right of proximit} r , or which of them is the 
 nearest heir, cannot be tried but by writ of right only, 
 unless by consent of the tenant. But if the right heir 
 ejects his bastard or younger brother, or other person,.
 
 224: BRITTON. [I, *10S 
 
 within fifteen days after their entry, the ejected shall 
 never reoov T er by this assise. But if they have had 
 peaceable seisin so long that they might have aliened 
 the inheritance to a stranger, and such purchaser might 
 have enjoyed his seisin so that an action would lie to 
 recover his seisin by this assise if he was ejected, in- 
 asmuch as the same time, and Less, suffices to constitute 
 a right in the person of one privy in blood to the right 
 heir, than in a stranger, it is reasonable that those 
 who might claim by the same descent in an assise of 
 Mortdancester, should, if they are ejected from their 
 seisin, recover by this assise against the right heirs and 
 all others, as well as a stranger enfeoffedin the *mean- 
 time by such intruders might do, if he were ejected 
 from his purchase. 
 
 G. He, in whose person were united the right of 
 possession. of the freehold and the seisin from which 
 he was ejected, is considered as disseised, although the 
 fee be all the while in the person of the desseisor or in 
 another. And not only is he disseised who is ejected 
 from his freehold in his proper person, but he is disseised 
 if his wife, bailiff, attorney, or farmer, be ejected, al- 
 though he is not himself present. Moreover, not only 
 he who is ejected from his freehold is disseised, but he 
 also who, at what time he returns from market, or 
 pilgrimage, or elsewhere, finds any one else in his free- 
 hold who will not suffer him to enter the tenement, or 
 at least keeps himself therein together with the right 
 owner, claiming a freehold in the demesne of the true 
 owner. A person is likewise disseised from the time
 
 I, 108 5.] OF DISSEISINS. 225 
 
 that he or his family is disturbed in the enjoyment of 
 his peaceable seisin by another, who by such disturb- 
 ances claims freehold therein, either as to the whole 
 or part, and either in the principal or in the appurte- 
 nances. 
 
 7. So likewise is he disseised, who is disturbed in 
 such a manner that he cannot freely enter into his fee 
 and distrain for arrears of services due from the tene- 
 ment, of which services the lord has been seised. Like- 
 wise if the tenant has impeded his distress *by a wall, 
 ditch, or hedge, or by driving his cattle into another's 
 fee ; or if no distress is found therein, or any other 
 ^ict has been done, so that the lord cannot go in and 
 out at his pleasure as he was wont to do. Also he is 
 disseised to whom reasonable distress is refused, or 
 rescued by the tenant, where the lord has been seised 
 thereof. Also if the tenant wrongfully replevies the 
 distress made upon him by the lord for arrears of 
 services, whereof the lord has been seised. 
 
 8. So likewise is he disseised who is ejected from his 
 freehold by a judgment which is not binding, as by a 
 judgment given without our original writ. 
 
 9. Some persons also are disseised who hold for 
 terms of their own life or of the lives of those who 
 had only a freehold. But if he in whom both rights 
 rest leases his land for the term of the lessor's life, no 
 freehold thereby accrues to the purchaser, although 
 the lease of the land be made to the purchaser and his 
 heirs to have and to hold for all the life of the donor; 
 and therefore if the purchaser or his heirs should be
 
 226 BRITTON. [I, *109. 
 
 ejected, this assise will not avail them. Those also 
 are disseised who are ejected from tenements which 
 they held by judgment of our court, or without judg- 
 ment, until such or such a thing be done, or for a 
 qualified term, as in gage or by conditional feoffments. 
 *10. Disseisin is not only made of lands and tene- 
 ments, but also of rents, estovers, and all kinds of an- 
 nual profits due for the term of the life of the disseisee, 
 where view can be given of any certain place from 
 whence these profits are to arise. 
 
 11. A person is also disseised at what time another 
 disturbs and deforces him of his freehold, and does not 
 deliver it up after our command to deliver it. One is 
 likewise disseised when the seisin of his inheritance is 
 denied him by the chief lord his guardian, to whom he 
 has done homage, and in whose ward he has been for 
 the same inheritance, so as he can prove the same, 
 although he was in ward but a very short time. 
 
 12. Although there be several disseisors, it is suf- 
 ficient to name two, or one, where the same person is 
 found to be both disseisor and tenant. For one dis- 
 seisor and one tenant at least must always be named in 
 the plaint. And if several disseisors are named as 
 having done the wrong and force, it does not hurt. 
 But in case of disseisin by a judgment which is not 
 binding, where a person is ejected from seisin of his 
 freehold by judgment in a freeman's court, or in the 
 county or hundred, or in any franchise without our 
 writ, the names of the suitors, together with those of 
 the bailiff and tenant, must be mentioned ; but if in our
 
 I, *109 I., *110.] OF DISSEISINS. 227 
 
 *court before our Justices, then it will be proper to men- 
 tion the name of the Justice who pronounced the judg- 
 ment, and the name of the sheriff, and of the bailiff, and 
 of the tenants. 
 
 13. A disseisin is also done by those who convey a 
 freehold to others, where they themselves have none ; 
 and in such case the donor as well as the disseisor 
 should be named. But in all disseisins if the writ of 
 novel disseisin falls by the death of the disseisor, or of 
 the tenant, a writ of entry in the second degree takes 
 its place. 
 
 14. There are several nusances, which may be pros- 
 ecuted by this assise, and yet not to recover a freehold, 
 but to remove wrongful nusances, as if a watercourse 
 or way is wrongfully turned or enlarged or straightened, 
 or a ditch, house, wall, hedge, or market wrongfully 
 set up, or a pond wrongfully raised or lowered to the 
 annoyance of his neighbour. Some nusances however 
 are determinable by sheriffs in county courts and not 
 by assises, as in the case of encroachments of curtilage 
 upon common weirs, watering-places for cattle, erection 
 of gates, folds, cowhouses, windmills, ovens, or sheep- 
 cotes. 
 
 15. There is another kind of disseisin, as of a fishery. 
 For none can have a warren in other's demesnes, ex- 
 cept by special deed ; but the fishery belongs to him 
 whose land adjoins the river on both sides. And if it 
 adjoins on one side only, then the fishery is his as far 
 as the line of mid-stream, unless it be a common fish- 
 en-. ^Therefore where a stranger disturbs such an
 
 228 BRITTOK [I, *110 1. 
 
 owner for fishing in right of his soil, claiming a free- 
 hold in the fishery, he commits manifest disseisin of 
 the owner of the soil, if he has had seisin of the fishery. 
 The like of a woman to whom such a fishery has been 
 assigned in right of dower. Disseisin may also be made 
 of corrodies, and of bailiwicks, and of many other 
 profits, as is said in our statutes. 
 
 16. Assise of disseisin will also lie in some cases for 
 a husband against his wife, when after having left her 
 husband for adultery, she attempts without his leave, 
 and without any award of court Christian, to keep her- 
 self by force in her husband's freehold or in her own, 
 whereas she has forfeited everything for their two 
 lives by her offence. So in all cases where the wife dis- 
 seises her husband. 
 
 17. This assise lies also for the lord of any fee against 
 all persons wrongfully distraining his tenants, and also 
 against the tenants jointly with the wrongful dis- 
 trainers, if the tenants subject themselves to any wrong- 
 ful services, to impose on the fee a greater service than 
 it ought to bear, on account of the disherison and dam- 
 age which may accrue to the lord, if the fee should by 
 any means fall into his hands by escheat. 
 
 18. If any one denies his service and disavows hold- 
 ing of his lord, *in such cases distress does not lie, ex- 
 cept where distraining and disavowing are compatible, 
 but this assise takes place, as in the case where the 
 tenant replevies reasonable distress out of the hands of 
 the lord, by which contest he makes himself a peer to 
 his lord, and so far denies the seigniory, although he
 
 T, *111.] OF DISSEISINS. 229 
 
 does it tacitly ; and by reason of this assertion of 
 equality this assise holds in both cases. 
 
 19. This assise lies also in the person of a villain and 
 his free wife against the lord of the villain, as in case 
 where a villain, holding nothing in villenage, marries 
 a free woman, having a free tenement where the vil- 
 lain and his wife dwell, if the lord eject them after the 
 year and day, they shall recover by this assise although 
 the lord can prove him his villain by suit of his kin- 
 dred. The son likewise of a villain ejected from, the 
 purchase of his father, who died in a free estate, may 
 recover by this assise as well against his lord as against 
 a stranger. 
 
 20. This assise also takes place in favour of those 
 who are ejected by false warranties, as in the following 
 and like cases. John brings an assise of Mortdan- 
 cester wrongfully against Peter. Peter comes into 
 court and vouches to warrant Theobald. Theobald 
 makes default, whereupon the assise is thus awarded 
 for his default, that although he come another day, 
 yet he shall not be heard to allege any cause where- 
 fore the assise should remain to be taken. *Suppose 
 that for some cause another day is given, as for default 
 of jurors or for any other reason, if Theobald comes at 
 the second day, and says thus, I warrant to Peter, and 
 surrender the tenement to John, if the Justices are so 
 unadvised as to admit such warranty, Peter shall re- 
 cover by this assise. And the Justices and the sheriff 
 or bailiff, who delivered seisin of the tenement, will be 
 disseisors as well as the tenant ; for they had no war-
 
 230 BRITTOK [I, *111 I. 
 
 rant to take cognizance of anything concerning Theo- 
 bald, inasmuch as he had then no day. And if Theo- 
 bald has given land in exchange to John, he shall 
 never recover it, because he did it of his own accord 
 without another judgment. For no one vouches an- 
 other to warrant in order to be disseised by him, but 
 to be defended by him in his possession. 
 
 21. If any man takes seisin of a tenement under col- 
 our of f eoif ment, but is not put into seisin by the feoifor, 
 if the feoffee be presently ejected by the feoffor, he 
 shall not recover by this assise. But if two or more 
 thrust themselves into seisin under colour of feoffment, 
 and a contest or dispute arises between them which 
 shall have the seisin in several, he whose seisin is rati- 
 fied by the donor shall have the best right to recover. 
 And if there is a contest between feoffees who have no 
 right beyond a naked colour of feoffment, this assise 
 shall assist the one who has been ejected from peace- 
 able seisin, against the other who had no right to 
 eject him, by reason of the possessory right which he 
 had, whereas the disseisor had no sort of right to 
 eject him. *And if two or more contend about a tene- 
 ment to which neither of them has any right, as if 
 both of them are bastards, he who was first in seisin 
 may avail himself of this assise, and shall retain the 
 seisin, until it is recovered by him who has a better 
 right. 
 
 22. And as one may be disseised of his own proper 
 tenement which he held in demesne and in several ty, 
 so several persons may be disseised of a tenement
 
 I, *112.J OF DISSEISINS. 231 
 
 which they hold jointly, as in the case of a husband 
 and his wife, neither of whom shall be aided b}' this 
 assise or heard without the other, except in the case 
 of adultery, where the wife has eloped from her hus- 
 band. It is the same with respect to boundaries and 
 landmarks between neighbours whereof both are dis- 
 seised ; for then neither shall be assisted by bringing 
 this assise separately by himself, since such boundaries 
 were never held in severalty ; but if such boundaries 
 are ploughed up, moved, or taken away, by any stranger 
 -appropriating the soil as his own freehold, the two 
 neighbours or more according as the boundaries were 
 held must be joined in the plaint. For as a river, un- 
 less it be a common river dividing counties or hundreds, 
 belongs, as far as the line of mid-water, to him whose 
 soil joins the water, so it is with boundaries of land, 
 xcept in case of a common way, which none may turn 
 or narrow, and other such like boundaries. *And if a 
 boundary between neighbours be ploughed up by one 
 of the neighbours, then this assise lies to have the 
 boundaries restored to their proper state. Running 
 water however is no longer a boundary than whilst it 
 continues its proper course ; but as soon as it changes 
 its channel in its course, it shall no longer be a bound- 
 ary between neighbours. 
 
 23. Parceners and others holding in common, so that 
 none can distinguish his several, may suffer a common 
 disseisin ; or, although there has been at one time a 
 severalty, if by the common consent of the parceners 
 the tenement has been afterwards assigned to some
 
 232 BRITTON. [I, *112 1. 
 
 common use, they may avail themselves of this assise 
 if they be afterwards ejected or disturbed. And if one 
 of the parceners be ejected or disturbed of his seisin, 
 by one or more of his co-parceners, the disseisee may 
 have recourse to this assise by a several plaint against 
 his co-parceners, and shall recover ; but not to hold in 
 severalty but in common, as he did before. *And if 
 two or more parceners are disseised by the other par- 
 ceners, each parcener shall have his several assise, and 
 they shall recover to hold in common. And like judg- 
 ment shall be given in all other possessory writs be- 
 tween parceners before the join-tenancy is severed. 
 But when their tenements have been severed, so that 
 each knows his own part, and one of the parceners is 
 afterward disseised by the other, then this assise lies 
 between them as between strangers holding in severalty ; 
 and one or more parceners disseised shall have the like 
 judgment against their co-parceners, disseisors, as 
 against strangers. Where there are several disseisins, 
 several assises shall be instituted, and each disseisor, 
 whether parcener or other, shall answer for his own 
 wrong. What we have said of parceners holding- 
 jointly as one heir, by reason of the unity of right of 
 them all, shall be equally understood of neighbours, 
 who though strangers in blood, jointly hold as par- 
 ceners, by feoffment, and in like cases.
 
 I, *112 .] ASSISE DOES NOT LIE. 
 
 CHAPTER XII. 
 
 Where an assise does not lie. 
 
 1. All persons have not equally a right of action to 
 recover by this assise. For this remedy shall not be 
 granted to any person ejected from a possession which 
 he held in another's name, as bailiff, guardian, or 
 attorney, or to a farmer holding for term of years, or 
 to those who hold any demesnes by villain customs 
 without title of gift or feoffment, 1 or to persons in 
 religion or others who shall have purchased land of 
 another's fee in mortmain, if they be ejected by the 
 lords of the fee, according to the ordinance of our 
 statute. A villain, of whom his lord has been seised 
 
 1 ' Note, that he who holds ancient demesnes without charter, 
 if he enfeoff a stranger, is as a disseisor. And the proof is this. 
 He who makes a higher estate to another than he himself had, 
 as he who makes frank tenement, where he hath none himself, is 
 a disseisor. And the tenant in ancient demesne hath not frank 
 tenement, for he who hath frank tenement can recover by 
 assise, which the sokeman cannot do. And the lord of the 
 manor hath the freehold, wherefore by such alienation he is dis- 
 seised. And as soon as the sokeman withholds his services, the 
 lord may take the tenement in his hand, and if he were tenant, 
 then the lord would need to recover by way of distress or by 
 cessavit.' (Note in MS. N.) See Judge Blackstone's argument as 
 to the status of a tenant in ancient demesne, Considerations on 
 Copyholders, Blackstone's Tracts, p. 199-237. See also Bracton, 
 165 &, 166, 168.
 
 234 BRITTON. [I, *113. 
 
 within a year and day as his villain, can never recover 
 against his lord ; *nor a freeman who has in our court 
 acknowledged himself to be the villain of the disseisor. 
 Nor can an intruder ever recover if he be presently 
 ejected by the true heir, within the year and day. 1 
 
 2. Nor shall he recover by this assise, from whose 
 soil buildings are removed, which were erected thereon 
 through the ignorance of another and afterwards taken 
 away as soon as the builder perceived his folly. But 
 if the owner of the soil shall carry to the builder our 
 prohibition against his removing them, or if he built 
 them contrary to the forbiddance of the owner of the 
 soil, or in ill faith, and not through ignorance, or 
 where anything is sown or planted in another's soil 
 through ignorance, and that plant remain till it has 
 taken root, if the builder or planter afterwards carry 
 it away without judgment, the owner of the soil shall 
 recover damages as much as if they had been of his 
 own building or planting. 
 
 3. Neither shall those persons ever recover against 
 the true heirs by this assise, who shall be ejected from 
 
 1 ' To that he saith, that an intruder shall not recover if he be 
 ejected within the year, I do not agree (ne m'i acorde je mie) ; 
 because it seemeth that he should not be in a worse condition 
 than the disseisor would be.' (Note in MS. N.) In Bracton and 
 Fleta the time is not even limited to a year ; non competit 
 [assisa] intrusori, nisi tempus habuerit longum et pacificum. 
 quod sufficere possit pro titulo (Brae. 168). A comparison of 
 those statements shows the rapidly growing inclination on the 
 part of the king's court to repress the practice of recovering 
 possession without judgment.
 
 J, *113 &.] ASSISE DOES NOT LIE. 235 
 
 tenements which they claim to hold by the law of Eng- 
 land presently after proof made that the children in 
 whose name they must hold were bastards, or such as 
 cannot be heirs, or where they had no issue by *their 
 wives, or were not the first husbands, even if they had 
 
 issue. 1 
 
 4. Purchasers with whom the donors have all along 
 continued in seisin until their death, shall not recover 
 if such purchasers are presently ejected by the right 
 heirs. Nor can a husband recover his wife's freehold 
 without the wife, nor the wife without the husband ; 
 nor the husband alone where the wife is jointly erv- 
 feoffed of the freehold with the husband. Nor shall 
 those ever recover by this assise who have been ejected 
 by their own consent, where such consent can be shown 
 and verified by deed covenant or by the country. Nor 
 shall he recover by this assise who is prevented from 
 using his seisin by reason of waste committed by 
 the tenant, until satisfaction be made for the waste and 
 
 1 The opinion, that tenancy by the curtesy is a privilege of a 
 first husband only, is supported by Fleta, but not by Bracton. 
 (See the passages referred to above.) The contrary appears to 
 be implied by the statute De donis (13 Ed. I.), which enacted, 
 that for the future the second husband should not have any 
 estate per legem Anglice in a tenement of which his wife had been 
 enfeoffed in frank-marriage with her first husband. And in a 
 case in the Cornish Iter, 30 Edw. I., an estate by the curtesy 
 was allowed to the second husband, of land which had been given 
 in frank-marriage with the first before the statute De donis, 
 upon the ground of this implication. (Year-book, 30 Edw. I., 
 p. 126.)
 
 236 BRITTON. [I, *114. 
 
 destruction. 1 Nor shall the lord recover by this assise, 
 when he complains that the tenant has disseised him, 
 before he has distrained for his arrears of service, or 
 until he has been in some way prevented from distrain- 
 ing. 
 
 5. Nor will this assise assist one who has before with- 
 drawn himself in the same action of assise from his 
 writ against the same person, if it can be proved by rec- 
 ord of the rolls of the Justices. Now a wife ejected 
 from her dower, of whom it is proved in court Chris- 
 tian that she was never joined in lawful matrimony to 
 the husband by whose assignment she claims to be en- 
 dowed, if she be ejected by the right heir. *Nor those 
 who by quitclaim, exchange, or in some other manner, 
 have made accord of the wrong done them. Nor one 
 who by another writ of earlier date has brought his 
 plaint for the same assise, or where an action is pend- 
 ing for the same tenement between the same persons 
 by a writ of higher nature. 
 
 6. Nor can he avail himself of this assise, who was 
 enfeoffed upon an express condition specified in writ- 
 ing, or a tacit condition which can be proved by the 
 country, if he be ejected by the feoffor after he has 
 failed to perform the covenant. Thus, if John gave 
 
 1 It appears to follow from this and the parallel passages in 
 Bracton and Fleta, that when waste had been committed by the 
 freeholder, the reversioner might enter without judgment upon 
 the tenement, and hold it until satisfaction had been made for 
 the waste ; and further (according to Bracton) , until security 
 had been given against further destruction.
 
 I, *114&.] ASSISE DOES NOT LIE. 237 
 
 land to Peter upon condition that Peter took to wife 
 one of the kindred of John, or some other, or the re- 
 verse; if the feoffee changes his mind and takes another 
 wife, and the feoffor afterwards ejects him from the 
 tenement, this assise will not avail the disseisee. 
 
 7. Nor will this assise avail him who shall have been 
 ejected pursuant to a judgment of our court, as in the 
 following and similar cases. A younger brother, by 
 default of the next heir, recovers an inheritance by 
 award of our court by judgment in this form, that if 
 the right heir appear, he may presently after his ap- 
 pearance eject whomsoever he may find tenant, whether 
 it be he who so recovers upon the decease of his ancestor 
 or a stranger feoffee ; and in that case if the heir is not 
 able to eject the tenant, yet, *where he is known to be 
 the next heir, if he can prove the setting of his foot in 
 the house in the name of seisin, and he is thrust out, he 
 shall be aided by this assise. 
 
 8. This assise does not lie for a person ejected by the 
 chief lord, who put himself in seisin of his fee presently 
 after the death of his tenant, where some one who 
 wrongfully pretends to be the next heir ejects the chief 
 lord, and the chief lord again ejects him, once or 
 oftener ; and if such pretended heirs bring this assise 
 against the lord, it shall avail them nothing, because 
 they did not find the fee vacant. But if they had found 
 the fee vacant, and had entered as heirs, and had been 
 afterwards ejected by the lord, or any other, from their 
 peaceable seisin, in such case this assise would have 
 availed them.
 
 238 BRITTOK [I, *115. 
 
 9. Nor does this assise help him who is disturbed 
 from distraining for a rent not issuing out of land ; nor 
 one who is distrained in accordance with his liability. 
 
 10. This assise does not take place in respect to 
 churchyards, common ways, walls of boroughs or cities, 
 or of like things common to everybody, because uo 
 single person can claim any property or severalty in 
 such common things ; and therefore in such cases the 
 remedy is by plaint of trespass. 
 
 *CHAPTEH XIII. 
 
 Of Remedies in Disseisin. 
 
 1. The first remedy in disseisin is for the disseisee to 
 gather friends and force, and without any delay after 
 he may have knowledge of the disseisin to eject the 
 disseisors. And if he can do no more, he should at 
 least keep himself in possession with the disseisors, and 
 make such use of his seisin as he can ; in this way the 
 disseisor will never gain a freehold without the consent 
 of the true owner. 
 
 2. But if the disseisors have "been for a long time in 
 peaceable seisin in the presence of the disseisee, then it 
 is not lawful for the disseisee to eject the disseisors 
 without judgment. In such case inquiry may be made, 
 where the disseisse was at the time of the disseisin ; l for 
 
 1 The time allowed for re-ejeotrnent is not very clearly stated 
 in the text ; ami the readings in several of the MSS. vary. The 
 following note is from MS. N. Where the disseisin is done in
 
 I, *115&.] OF KEMEDIES IN DISSEISIN. 239- 
 
 if he was present, and knowingly suffered the disseisor 
 to enjoy his peaceable seisin, the disseisee has no such 
 right after a long space of time to eject the disseisor, 
 but that the latter may recover his seisin by this assise, 
 with his damages ; for in such case it may reasonably 
 be presumed that the disseisees were willing that the 
 tenements should belong to the disseisors ; inasmuch 
 as they suffered their right to lie so long dormant. 
 
 3. But if the disseisee was in a distant country at 
 the time when the disseisin was committed, then it is 
 proper to consider and determine within what time 
 his family might have reasonably given him intelligence 
 of the disseisin, and in what time he might have re- 
 turned to assemble his friends and eject the disseisors. 
 *And that such determinations may not be arbitrary, 
 
 presence of the disseisee, the disseisor must be ejected within 
 five days ; because the law of ancient time granted that the 
 disseisee should go one day to the east, the second day to the 
 west, the third day to the south, and the fourth day to the 
 north, to seek succour of his friends all the country round. If lie 
 be disseised in his absence, then if he was out of his district in 
 any other place within the realm, let him be warned forthwith 
 by his household, and let his reasonable days of journey (ses 
 resnables journees) be allowed, and then four days. If beyond 
 sea in pilgrimage, he shall have forty days, two floods and an 
 ebb, and fifteen days to come from the sea to his house, and then 
 four days. If beyond the sea of Greece in simple pilgrimage, he 
 shall have a year, and two floods and an ebb, and fifteen days, 
 and four days. If beyond the sea of Greece in a general passage, 
 then let three years, two floods, one ebb, fifteen days, and four 
 days be allowed.' This statement of the law agrees with Brae- 
 ton. As to the time allowed in essoins, see below, book vi. c. 7..
 
 240 BRITTOX. [I, *116. 
 
 we will that they be adjudged according to the periods 
 allowed in essoins ; so that if the disseisee be gone in 
 a general passage to the land of Jerusalem, and after 
 his return he eject the disseisor, or any other who may 
 have been enfeoffed by the disseisor, it is lawful for 
 him so to do, whether it be an infant within age or 
 any other whom he find therein, so as it be done within 
 the fourth day from his return into the country, three 
 days being allowed him to collect arms, friends, and 
 forces ; and although the person so ejected brings this 
 assise against the ejector, yet he shall not recover any 
 freehold ; for we will not that the absence of such 
 persons be so prejudicial that they be in any way 
 damaged thereby. If the disseisee went on a simple 
 pilgrimage to the holy land, then let there be reckoned 
 a year and a day, and one ebb and flow for delays at 
 sea, and fifteen days for his journey to the land, and 
 four days for assembling his force ; and if he has within 
 such time ejected whosoever was found in his tenement, 
 the person ejected shall not recover the land by this 
 assise, even though his ancestor died seised thereof. 
 And if the pilgrimage of the disseisee was on this side 
 of the Grecian sea, the reckoning shall be four months, 
 one ebb and flow, fifteen days, and four days ; if in 
 England, fifteen days. And if the disseisee after that 
 time eject the disseisors * without judgment, inasmuch 
 as they have been all that time or longer in peaceable 
 seisin with the knowledge of the disseisees, the dis- 
 seisors shall have recovery of their estate by this assise ; 
 for we will that all persons after the prescribed time
 
 I, *116 &.] OF EEMEDIES IN DISSEISIN. 241 
 
 of limitation proceed rather by judgment than force ; 
 and the first disseisees shall not be afterwards aided by 
 this assise ; for he who acts in opposition to the law 
 has no right to claim aid of the law. 
 
 4. And as such disseisors have after a certain time 
 and term a right of action to recover against the dis- 
 seisees by this assise, so they have also before the time 
 so limited a right of action to recover by this assise 
 against all other disseisors having no right to eject 
 them. For where neither of two persons has any right, 
 the disseisee has a greater right than the disseisor. 
 And although the original disseisor may thus recover 
 by judgment of our court, yet the true owner shall 
 not lose anything of the right when he shall choose to 
 bring his plaint. So also, if during the time limited 
 for ejectment he cannot recover his seisin without our 
 aid, our writ shall be granted to him returnable at the 
 eyre of our Justices, or we will assign him Justices to 
 hear and determine the plaint according to the case. 
 
 5. Where a woman is disseised, and afterwards takes 
 a husband, if they will afterwards proceed by this 
 assise, the form of the writ shall be thus : ' John and 
 Peronel his wife have cem plained to us that Peter has 
 wrongfully disseised the aforesaid Peronel.' *And if 
 the husband desires to purchase a writ against his wife, 
 then thus : ' John and Peronel his wife have com- 
 plained to us that Peronel of such a town has disseised 
 the aforesaid Peronel ' : so that the wife is plaintiff 
 although she is disseisor ; but the surname is altered 
 
 before she is named as disseisor. 
 16
 
 BRITTON. [I, *11T. 
 
 CHAPTER XIY. 
 
 Of Views in Disseisin. 
 
 1. If the person ejected cannot or ought not to eject 
 his disseisor, or if the tenant hinders him from using 
 his seisin together with him, he must then complain to 
 us, and we will thereupon grant him our writ to the 
 sheriff of the county in whose bailiwick the tenement 
 is ; which writ shall contain the names of the disseisors, 
 of the tenants, and of those who come with force and 
 aid to help the disseisors, and the name of the plaintiff. 
 But let every plaintiff beware of putting in his plaint 
 any who were not wrongdoers, because for every one 
 named in the writ who can acquit himself of the wrong 
 the plaintiff shall be in mercy for his false plaint. 
 
 2. When any one has purchased our writs, and also 
 letters from our Justices to the sheriff to inform him 
 of the day and place of their session ; the *original writ 
 and the Justices' letter shall be immediately taken to 
 the sheriff ; and the plaintiff shall keep our letters 
 patent by him until the day of the plea, and then he 
 shall deliver them up to the Justices to be their war- 
 rant ; for without either a general or special warrant 
 they cannot determine anything. 
 
 3. In the next place it is the sheriff's duty to take 
 pledges, two at least, distrainable to himself, that the
 
 I, *117 .] OF VIEWS IN DISSEISIN. 243 
 
 plaintiff will prosecute his plaint, except where on ac- 
 count of his poverty we have permitted him to sue his 
 plaint upon the pledge of his promise only ; and then 
 he shall find no other security to the sheriff. And if 
 he goes without our aid, and is unable to recover his 
 seisin, he may then obtain our writ, returnable at our 
 eyre or that of our Justices, or we will grant him Jus- 
 tices to hear and determine the plaint according to the 
 case. When pledges to prosecute are found to the 
 sheriff, or to us in our Chancery, whereof two pledges 
 are sufficient though there are several plaintiffs in one 
 writ, the plaintiffs are not to be required to find any 
 other security, although the return is to be made in a 
 franchise. 
 
 4. Security being thus taken if the writ require it, 
 let two freeholders of the neighbourhood be im- 
 mediately enjoined to summon the neighbours to be at 
 a certain day and place before our Justices to make 
 recognizance upon their oaths, whether the plaintiff 
 has been disseised, as he complains, of his freehold, 
 in such a certain place or not, and that in the mean- 
 time they view the tenements in this manner, whether 
 the disseisin be made of land or of rent, of private 
 property or of common ; and if of common, whether 
 common to everybody, or only to a certain number of 
 people ; also to how much in quantity the thing whereof 
 the *plaint is made amounts, so that they may be pre- 
 pared with a certain answer when they shall be asked 
 whether the plaintiff hath put too much or too little 
 in his plaint. They ought also to see whether all the
 
 244 BRITTOK [I, *118. 
 
 tenement is situate in the count} 7 and in the vill named 
 in the writ or not. It is not the sheriff's or bailiff's 
 office to give them the view, but the plaintiff's, who is 
 bound to inform them within what boundaries and 
 divisions the tenements named in the plaint lie. 
 
 5. If the plaint be made of corrodies or estovers, or 
 of the delivery of corn yearly, or other provisions or 
 necessaries, or of bailiwicks or wardenships, or of the 
 keepership of a park, or the ward of gates, or other 
 kind of annual office, or of common of pasture, turbary, 
 fishery, or other easements, then the jurors are required 
 to make view of the tenement from whence the ease- 
 ments or estovers arise, or at least of those tenements 
 where the annual necessaries are accustomed to be 
 delivered or are assigned to be received. 
 ' 6. And if the plaint be made of rent, then the jurors 
 must view the soil from which the rent issues ; and not 
 only the soil, but the thing also for which the rent is 
 paid ; as in the following and like cases, where rent is 
 granted by one neighbour to another to have a right of 
 driving cattle through anv tenement, *or where a rent 
 
 o o */ f 
 
 issuing out of any tenement is partly or wholly released 
 on condition of having an easement in another soil. 
 For although the one party does not require the ease- 
 ment, yet he cannot refuse to pay the rent, or prevent 
 the covenant from being binding in relation to him who 
 is willing to keep it ; and the contract shall never be 
 dissolved but by common assent as it was at first made ; 
 and therefore, although the person who has granted a 
 rent in fee or for term of life whereof the purchaser
 
 I, *118 ft.] OF VIEWS IN DISSEISIN. 245 
 
 has been seised, does not wish to have the driftway or 
 other easement in the soil of his neighbour, yet if he 
 refuse to pay the rent according as it was covenanted 
 between them, he to whom the rent is due may distrain 
 for the arrears of the rent ; and if he cannot find any- 
 thing to distrain, or if he be hindered from distraining, 
 he shall recover by this assise, if he can show that 
 any soil is charged with the rent ; and if not, it is 
 sufficient to view the tenement for which the rent wqs 
 given. 
 
 7. If the plaint is made of a nusance, then let them 
 view the nusance, whether it be a wall, ditch, hedge, 
 or market, or a pond raised or lowered, or otherwise 
 injurious ; and in such case it is not sufficient to view 
 the nusance only, but they must also view the tenement 
 to which the annoyance is done. *And in the preced- 
 ing case also, if the disseisin be by a disturbance of an 
 easement, such as having common in another's soil, or 
 right of drift or way, or water at another's well, or 
 other like easement, it is sufficient to view the tenement 
 subject to the easement, but the tenement to which the 
 pasture belongs must likewise be viewed. 
 
 8. The parties, if they please, may be present at the 
 view, and challenge the jurors ; and if the parties agree 
 upon jurors, the names of those upon whom they have 
 agreed shall be imbreviated, to be presented to the 
 Justices at the day of plea. 
 
 9. Afterwards let the tenant and all the disseisors, 
 or their bailiffs if they cannot themselves be found, be 
 attached, and required to find pledges to be present at
 
 246 BRITTON. [I, *119. 
 
 the day of the plea to hear the recognizance of the 
 jurors upon the plaint, so that they may know of what 
 offence they are to be accused. 
 
 CHAPTER XY. 
 
 Of the Proceedings in Assises. 
 
 1. When the Justices are come, they shall forthwith 
 receive the essoins, and afterwards adjourn them. And 
 if the plaintiff in this assise neither appears nor causes 
 himself to be essoined, the writ shall be immediate! v 
 taken out of the hands of the sheriff, and the names of 
 the jurors presented ; and the plaintiff shall be called. 
 *And if he makes default, Jet him and his pledges to 
 prosecute be in mercy. Then let the tenant or his 
 bailiff and the rest of the disseisors be demanded, and 
 if they make default, or cause themselves to be essoined 
 (since in this assise no essoin avails them,) and it be 
 proved by the sheriff that they were attached by 
 pledges, then their pledges shall be in mercy, because 
 they have not produced them in court according to 
 their engagement. Afterwards let the jurors of the 
 assise, according to the panel, be required to answer to 
 their names ; and let such as do not appear according 
 as they have been summoned be in our mercy. 
 
 2. If the plaintiff appears, or causes himself to be 
 essoined, and neither the tenant, nor his bailiff, nor his 
 attorney, is present, the pledges as before mentioned 
 shall be immediately amerced, and by way of punish-
 
 I.-*119J.] PROCEEDINGS IN ASSIZES. 247 
 
 ment for the default of the parties it shall be awarded 
 that they be not afterwards allowed to allege any 
 reason for staying the assise, and that the assise be 
 taken by their default. 
 
 3. And it should be known that in this and in no 
 other assise every disseisor may answer either in person 
 or by attorney, or by bailiff. Yet they have not all an 
 equal power ; for a bailiff cannot do all that his lord 
 oan. For a bailiff cannot acknoAvledge or grant that 
 the disseisin was committed by his lord, so as to prevent 
 the necessity of taking the recognizance, as the dis- 
 seisor might himself do, if present. ^Moreover the bailiff 
 cannot make any accord or partition, nor put the right 
 of his lord into hotchpot, whereby the lord might lose 
 any freehold without the recognizance of the assise. 
 Yet the bailiff may, as well as his master, allege any 
 objection, wherefore the assise ought not to pass, or for 
 the purpose of barring the assise by dilatory or per- 
 emptory exceptions, as by an exception, against the 
 judge, or the plaintiff, or the jurors, or against the writ, 
 and by all other exceptions and replications. 
 
 4. An attorney may do all that his lord can, except 
 make accord, for as soon as the proceeding in court is 
 ended, the power of the attorney ceases, and in making 
 the accord another proceeding is begun, which was not 
 before in court, when he was appointed attorney only 
 in the proceeding then in court. This however must 
 be understood of special, not of general attorneys. 
 For a general attorney can do as much as his client 
 from the commencement to the end of the suit.
 
 BRITTOK [I, *120. 
 
 5. When both the plaintiff and the defendants are in 
 court, if the plaintiff declares that he will not further 
 prosecute his writ, in whatever suit this may occur, he 
 shall not afterwards resort to another like writ, *but 
 both he and his pledges to prosecute shall remain in our 
 mercy. And if he withdraws himself from the action, 
 he shall be barred of his action for ever; but if he has 
 leave to seek a better writ, or if the writ be abated for 
 error or for other fault, and likewise if the plea be 
 opened, and in the course of pleading the writ be found 
 defective, although the plaintiff in such case say that 
 he will not further prosecute that writ, } r et he shall not 
 thereby be barred from resorting to a better writ of 
 the like kind, because no proceeding is as yet com- 
 menced upon the action, but the whole is to the writ, 
 whereby the action remains entire. But if any one 
 withdraw himself from his writ after the action is 
 opened, he shall never resort to the like writ against 
 the same persons for the same tenement, but the writ 
 shall be liable to abate, if the fact be averred by ex- 
 ception. But if upon replication it can be averred that 
 the tenant against whom the first writ was brought 
 was not tenant of the tenement when the writ was 
 abated, and that he obtained it by some means since 
 that time by purchase, succession, or escheat, in such 
 case the plaintiff may resort to another like writ, and 
 the writ shall hold good, in respect of the right of ac- 
 tion which commenced after the writ abated. 
 
 6. If any person attached declare in court that he has 
 nothing in the tenement nor claims anything, without
 
 I, *120 ft.] PROCEEDINGS IN ASSIZES. 
 
 *making any reservation, and such confession be re- 
 corded, he will be thereby for ever after foreclosed of 
 every right which he may have had until that time in 
 the tenement, if this exception be used against him. 1 
 
 7. If when the parties are come to trial the plaintiff 
 has not our letter patent for trial of his suit, the Justices 
 have no power to hear or determine anything. And if 
 the tenant enter nevertheless into his defence, and lose, 
 he may still recover his former position, and whatso- 
 ever the Justices shall do in such case shall be held en- 
 tirely null and void. But if the plaintiff has the patent, 
 let it be immediately read in audience, and if any 
 doubt arises thereon, the tenant my have on that ac- 
 count a dilatory exception to ward off the assise. 2 After- 
 wards let oyer be had of the writ close. And let it be 
 immediately demanded of the plaintiff of what free- 
 hold he makes his plaint, and let the quality and 
 quantity be imbreviated. Next let our Justices ex- 
 amine how and by what title the plaintiff had a free- 
 hold therein ; for in every demand it is not sufficient 
 merely to demand, but the plaintiff must show by what 
 right he demands ; and this rule applies not only to 
 things movable, but to things immovable, and not only 
 
 1 ' Suppose A to bring a writ of novel disseisin against B, who 
 is tenant. B disclaims. The writ abates. A desires to enter. 
 B will not suffer him. What remedy shall A have? qu.' Note 
 in MS. N. 
 
 2 ' Note, that if the Justice takes cognizance of any plea with- 
 out or beyond their warrant or otherwise, recovery may be had 
 upon them by bill to the king's parliament.' Note in MS. N.
 
 250 BIUTTOK [I, *121. 
 
 to claims of possession, but to claims of right. And 
 whoever will not make that appear, is not entitled to 
 be answered. 
 
 ^CHAPTER XYI. 
 Of Title to Freehold. 
 
 1. A title of freehold may be acquired several ways, 1 
 as by succession of inheritance, by feoffment, confirma- 
 tion, quitclaim, recognizance of gift in court of record, 
 chirograph, judgment of our court, escheat, reversion, 
 
 1 ' Note, that albeit the first part of this chapter saith, that 
 there are sundry titles of frank-tenement, John de Longeville of 
 Northampton tells you shortly (Johan de Longeville de Northamp- 
 ton vus dist curtement) that there are but two, and no more, to 
 wit, inheritance and purchase, which are principals, and all the 
 rest are accessories and comprised in the two. For recog- 
 nizance and judgment of court are sometimes given by reason of 
 purchase, sometimes of inheritance. But confirmation, quit- 
 claim, action of dower and of curtesy of England, and in all 
 other cases, (except inheritance and its accessories, as reversion 
 and escheat,) are comprised in purchase. Seignory purchased 
 also gives rise to escheat. And if the lordship descend before 
 the escheat happens, this is rather inheritance than purchase ; 
 for the purchase is the acquisition (conqueste) of some right to 
 which the purchaser before was entirely a stranger.' (Note in 
 MS. N.) I have extracted this note, principally on account of 
 the light which it may throw on the origin of the whole series of 
 notes of which I have made such frequent use. See the Introduc- 
 tion by the Editor.
 
 I, *121 I.-] OF TITLE TO FREEHOLD. 251 
 
 <io\ver, curtesy of England, fee-tail, in mortgage, or by 
 condition, or until so much money be levied by judg- 
 ment of our court, or by simple feoff men t, or by peace- 
 able seisin after a wrongful entry, or by the other 
 cases aforesaid ; in which it is necessary for the plain- 
 tiff, if he expects to be answered, to set forth his title, 
 or at least to say that he was in peaceable seisin so 
 long a time, that he ought not to have been disseised 
 without judgment, so that a freehold had accrued to 
 him by the sufferance and negligence of the true owner, 
 whatever his entry may have been, and that this seisin 
 continued until the tenant and the other disseisors 
 named in the writ wrongfully and without judgment 
 disseised him, and thereof he prays the assise. 
 
 2. If the plaintiff states his title by succession of in- 
 heritance, then it must be inquired whether he found 
 the fee vacant or not. For if he found no other person 
 in seisin, and he is next heir to the ancestor whose in- 
 heritance he claims, the bare setting his foot in the 
 capital messuage of his inheritance is enough to give 
 him a seisin, whoever may be the *deforceor, whether 
 brother or stranger, and that not only of the messuage 
 but of as much of the inheritance whereof his ancestor 
 died seised as belongs to the messuage, by reason of 
 both rights being united in him, that is to say, the pos- 
 session and the property. In like manner it is with 
 respect to a right by escheat, reversion, or formedon, 
 and in all cases where the possession is actually united 
 with the property. 
 
 3. It is otherwise where both rights are not imme-
 
 252 BRITTOK [I, *122, 
 
 diately united in one person, as in the case of intruders, 
 bastards, pretended heirs, and others who have no 
 right of property but only the naked possession. The 
 same is true of some purchasers, as those who under 
 colour of f eoffment thrust themselves into any tenemen t 
 whereof the feoffors never so far put them in seisin 
 but that they themselves died seised thereof. So it is 
 of those who are excepted in feoffments, as Jews, 
 persons in religion, and other excluded or prohibited 
 persons. So of those who enter by disseisin or through 
 disseisors, and of all others who enter to the damage or 
 prejudice of any one. For those who enter into any 
 tenement by such as have no right to give or alienate 
 the same, as by farmers or termors, or by those who 
 hold under condition, or by bailiff, guardian, ^villains, 
 or others not being the true owners, can have no free- 
 hold unless by peaceable seisin and lapse of time, or 
 where the alienation was conditional, until the con- 
 dition be satisfied. Neither can such as enter by those 
 who have committed felony of which they are after- 
 wards attainted. JSTor those who enter by virtue of 
 feoffments made by bastards, where the bastards were 
 not themselves enfeoffed to them and their assigns ; for 
 it was in favour of bastards that the word assigns was 
 first devised to be inserted in feoffments. 
 
 4:. When the plaintiff shall have set forth his intent 
 and title, it then behoves the tenant to make out his 
 defence, if he can, and to show what right he had to 
 eject or disturb the plaintiff. And if the tenant in 
 support of his title produces a charter of the plaintiff,
 
 I, *122 &.] EXCEPTIONS TO THE WHIT. 253 
 
 that shall not avail him, unless livery of seisin was 
 made to him by the free will of the donor. 
 
 5. And if the tenant say that he has no title and 
 claims none, still it does not follow but that inquisition 
 be made by the assise, whether he disseised the plaintiff 
 tortiously or not, and whether with arms or by force, 
 and whether in the night or by day. And concerning 
 the damages and the other circumstances, let judgment 
 be given as shall be hereafter mentioned, according to 
 the verdict. 
 
 ^CHAPTER XVII. 
 
 Of exceptions to the writ. 
 
 1. The immediate taking of this assise is prevented 
 in many ways, as by peremptory exceptions, such as 
 exceptions of naif ty or villenage, of condition, covenant, 
 quitclaim, confirmation, release, difficulty of judgment, 1 
 fine and chirograph, lapse of time and others ; and also 
 by dilatory exceptions, as by exceptions to abate the 
 writ, exceptions to the judge, and to the person of the 
 plaintiff, and to the tenant's own person ; but excep- 
 
 1 ' Difficulty of judgment is a shameful reason for delay (un 
 delay mult honteus) ; because the king, who ought to govern the 
 people by the law, ought not to be ignorant of it (la mesconus- 
 tre) ; nor his Justices, unless it be in some outrageous and per- 
 plexed case (cas horrible e deguise,) then common counsel is 
 better than private haste.' Note in MS. N.
 
 254 BKITTOK [I, *122 b. 
 
 tions to abate the writ must be proposed before the ex- 
 ception to the person of the plaintiff. 
 
 2. Supposing the jurisdiction of the Justice to be 
 confirmed, the tenant may then aid himself by ex- 
 ceptions in abatement of the writ, as for a defect found 
 in the writ, as by an erasure in a suspicious place, or 
 if the writ was never sealed with our seal, or if the 
 ordinance or style of our Chancery is not observed. 
 The writ is also abatable and defective for want of 
 date ; likewise for a defect in the writing, as being^ 
 written in t\vo hands, or with different inks ; and for 
 damage to the writ, as if it be torn, marred, or can- 
 celled ; likewise for defect of the patent, as on account 
 of an erasure, or by reason of the seal being fraudulently 
 attached thereto. And in all cases of falsification of 
 our writs, we will that such suspicions be cleared up, 
 and the like as to illegal distresses ; J but these cases 
 shall be determined only by Justices thereto author- 
 ised. The suspected persons however shall be forth- 
 with attached. 
 
 3. The words in the writ, ' has complained to us,' 
 may furnish ground for an exception to abate the writ 
 
 1 The text in this passage seems to be corrupt, and the true 
 reading is not recoverable with certainty. I have ventured to 
 introduce the word pnrgez (perhaps originally written puriez) , 
 of which there appear to be traces in the various readings. I 
 think the whole may possibly have stood as follows : ' qe les 
 suspecciouns soint puriez et les mauueis brefs detenus et cleter- 
 minez,' &c. : ' that the suspicions be cleared up, and the forged 
 or suspected writs impounded.' The verb purger is similarly- 
 used in 1. i. c. 2. s. 6, ante, p. 11.
 
 I, *123.] EXCEPTIONS TO THE WE1T. 255 
 
 *for want of another who has as much or more right to 
 complain than the plaintiff ; as where the plaint is of the 
 wife's freehold, and the husband only is named, 1 and 
 in other like cases, where the writ ought to run, ' have 
 complained to us,' &c. 
 
 4. The writ is also abatable if purchased before the 
 disseisin, and also if the cause of action has ceased 
 though the disseisin was in fact committed, as if the 
 disseisor has restored the tenement to the disseisee, 
 who has consented to take it back by such surrender. 
 But if he had retaken it by his own force, then it should 
 be worse for the plaintiff. Also if the plaintiff has 
 before withdrawn himself from a like writ, or a like 
 assise, if this be verified. So likewise if the plaintiff 
 has before made his plaint by a writ pending, founded 
 upon the seisin 'of another, or by a writ of a higher 
 nature, because the order of pleas has not been ob- 
 served. 
 
 5. The writ is also abatable if it is not well framed 
 according to the case. So if the writ be badly pur- 
 
 1 The annotator in MS. N. discusses the law here laid down at 
 some length, and distinguishes as follows : ' If the husband lias 
 had issue and consequently action to hold by the curtesy, he 
 shall be answered; otherwise not. For the husband detained 
 by his wife out of his wife's right, whereof an estate by the 
 curtesy has accrued to him, shall recover against the wife by the 
 assise, much more against the sti'anger. So likewise of their 
 common purchase, and of the several right of the husband. But 
 suppose the wife to keep out her husband from the wife's right, 
 qucero whether he shall recover.' See above, c. 11. s. 16, c. 13. s. 
 5, and below, c. 18. s.
 
 256 BRITTON. [I, *123 b. 
 
 chased, as if several plaintiffs are named in a writ 
 where there ought to be different assises or the reverse. 
 So where any tenement is acknowledged to two men 
 to hold jointly, if one has seisin thereof, and is after- 
 wards ejected, and he brings plaint alone of being 
 ejected and disseised of the Avhole, the writ fails, though 
 the other parcener was never in seisin ; for the seisin 
 was delivered to him as well in the name of his par- 
 cener as in his own proper name ; *and he is sufficiently 
 seised in whose name the seisin is taken, if he holds 
 good what was done in his name. 
 
 o 
 
 6. The writ may be faulty in several ways, as if it is 
 purchased against him who is tenant in the name of 
 another, as against a bailiff, or farmer, or a guardian, 
 -or a canon, or a servant, without naming the principal 
 in the writ. Also by mistake of Christian names in 
 the writ, as Reynard for Reyner, Amice for A vice, or 
 for mistake of surnames ; likewise for omission of syl- 
 lables or of letters in the words or sentences ; likewise 
 for want of a surname of dignity, as if John is a secular 
 man, and Master of a Hospital, and complains that he 
 is disseised for a freehold appendant to the same hos- 
 pital, and is not named Master of the Hospital. The 
 same rule holds in the case of a parson of a church, and 
 all prelates and persons of religion, demanding tene- 
 ments as appurtenant to their churches or prebends, 
 where they have not named themselves parson of such 
 a church, or archbishop or bishop or canon or prelate. 
 So if a canon secular has a certain dignity in any 
 ohurch whereof he is a canon, to which dignity he
 
 I, *124.] EXCEPTIONS TO THE WRIT. 257 
 
 claims the tenant in demand to be appendant, as to a 
 deanery, treasury, or chantry, if he is not named in the 
 writ by the same surname of dignity or office, the writ 
 is abatable. So, in case of the tenant, *if the dignity 
 and office to which he claims the tenant named in the 
 plaint to be annexed are not specified. 
 
 7. The writ may also abate for mistake in the town, 
 as if a hamlet is named where the town to which the 
 hamlet belongs ought to have been named. The dif- 
 ference between manors, townships, and hamlets will 
 be noticed in the chapter concerning Recovery of 
 Right. So likewise for want of distinction in the writ 
 between vills of a like name in the same county ; as 
 also if the tenant is not situate in the vill named in the 
 writ. 
 
 8. If the situation be disputed between the parties, 
 the truth shall be inquired by office, but not so that the 
 gaining or losing of the action shall be at stake, though 
 the parties be willing that it should be so. For the 
 exception is put forward to abate the writ, and not 
 against the assise. And if the jurors say that the tene- 
 ment is not in the vill named in the writ, the writ 
 abates, but the assise and the wrong nevertheless re- 
 main undetermined, and the plaintiff may resort to an- 
 other like writ, whether he withdrew himself from his 
 writ with or without leave. And if they say that the 
 tenement is in the vill named in the writ, then let the 
 assise be taken. And if the jurors do not know for 
 certain in which of the two vills the tenement lies, 
 then let it be demanded of the plaintiff whether he
 
 258 BRITTON. [I, *124 I. 
 
 claims anything of this tenement in any vill not named 
 in the writ, and afterwards of the tenant, whether he 
 claims anything in the vill named ; and if they say no, 
 then *let the jurors of the assise and others of the- 
 neighbourhood be ordered to set up proper metes and 
 bounds between the two vills. The like shall be done 
 where a difference arises between parties concerning 
 the boundaries of two manors or two counties, so that 
 the plea and dispute shall be tried and determined by 
 perambulation. And if the plaintiff is under age, the 
 plea must be suspended and respited until he is of age ; 
 for no infant can answer to his own prejudice, whether 
 he claims such a thing in such a county, or in such a vill 
 or manor, or not, on account of the perambulation 
 which follows, whereby the right as to the boundaries 
 would be determined for ever. Therefore the plea and 
 perambulation shall stand to be taken at the plaintiff's 
 majority, for before that time he cannot give his assise 
 to the perambulation. 
 
 9. If the jurors say, that part of the tenement is in 
 one vill or one county and part in the other, then let 
 the assise be taken for that part of the tenement which 
 is in the vill or in the county named in the writ, and 
 not for the rest. It may thus happen that both the 
 parties remain in our mercy. In the same manner 
 perambulation shall be made in case of a difference 
 between the parties, where the contest is in what fees 
 or in what baronies the tenement lies, where one says 
 in one fee and the other in another, and in particular 
 where the jurors are uncertain ; saving that in all these
 
 I, *125.] EXCEPTIONS TO THE WKIT. 259 
 
 *cases it shall be demanded of the parties, as before 
 mentioned, whether they claim anything or not. 
 
 10. The writ will also abate, if one demands a tene- 
 ment in privileged soil, where such writs do not run, 
 as in our ancient demesnes, where no writs run except 
 a writ of right close according to the custom of the 
 manor. Exceptions may also be founded upon those 
 words of the writ which say, ' of his freehold,' inasmuch, 
 for example, as the freehold never was the plaintiff's, 
 but his wife's ; and if the husband and wife are both 
 plaintiffs and complain that they are disseised, they 
 thereby suppose that they both had a freehold, and 
 that they held in common ; and upon this an exception 
 may chance to arise to abate the writ. So also, for 
 not distinguishing between the father and the son, 
 where the son has committed the disseisin and bears 
 the same Christian name and surname as his father. 
 And where any one has two surnames, that surname 
 shall hold by which he is best known. There are 
 several other exceptions to abate the writ which shall 
 be noticed among exceptions in a plea of right. 
 
 12. If the writ be lost or maliciously taken off the 
 files, then the authority of the Justice ceases ; for 
 without warrant by original writ out of our Chancery 
 no Justice hath record. But if there be any suspicion 
 of malice, let it be forth with inquired by whose malice 
 the writ was removed ; and whosoever shall be con- 
 victed thereof shall be taken and punished by imprison- 
 ment and heavy ransom.
 
 260 BEITTOK [I, *125 I. 
 
 *CHAPTER XVIII. 
 
 Of exceptions to the person of the plaintiff. 
 
 1. The writ being established, the tenant may still 
 aid himself by exceptions against the person of the 
 plaintiff, as that he is excommunicated. For a person 
 excommunicate is one that is out of communion on 
 account of a leprosy of the soul, as a leper is for the 
 disease of his body ; and so long as a person is ex- 
 communicated, he ought not to commune with any one 
 nor any one with him, neither is he entitled to be 
 answered in any action, as shall be noticed in the plea 
 of right. 
 
 2. The tenant may also aid himself in a proper case 
 by exception of villenage against the plaintiff in the 
 following form : ' Assise ought not to lie, inasmuch as 
 the plaintiff is my villain.' But then he must also add, 
 that he is seised of his suit and of his chattels, or that 
 he holds of him in villenage ; not however for the 
 purpose of recovering him for his villain, but to bar 
 the assise in the plaintiff's action. But if the plaintiff 
 has by his pleading or by consent put himself upon the 
 jury concerning any circumstance of his estate, and he 
 be thus as it were attainted for the villain of the tenant, 
 the tenant may well take him away and put him in the 
 stocks, or drive him off the land, as he should his
 
 I, *126.] TO THE PERSONS. 261 
 
 villain, yet not so as to be justified by the judgment 
 of our court without another writ, but at his own peril. 
 *For if the alleged villain can prove himself to be of 
 free condition, as having been enfeoffed to himself and 
 his heirs by his lord, or in any other manner, he shall 
 have an action by writ of trespass or otherwise, against 
 every one who has done him wrong or grievance. 
 
 3. So likewise the exception will fail if the plaintiff 
 can prove by the assise or by attaint that he has lived 
 out of the lord's fee and out of his seisin for a year and 
 a day, claiming free estate, without claim by the lord ; 
 so that the lord cannot take or recover him as his villain 
 without a writ of naifty. For no one can claim any 
 right to the appurtenances or accessories who has no 
 right in the principal subject of action ; and therefore 
 the lord in such cases should first demand the body of 
 his villain by writ of naifty ; and after he has recovered 
 the body, he shall have the goods and the land and all 
 that belongs to the body. And if the lord take any- 
 thing from such fugitive without judgment of our 
 court, he acts against our peace. And therefore we 
 will that such fugitives shall have their action to 
 recover from their lords what their lords shall have 
 taken from them by force after a year and a day 
 from their flight, until the right in the bodies be 
 proved. 
 
 4. Therefore in this exception it is proper to examine 
 whether the lords who put forward such exceptions 
 are at that very time seised of those whom they allege 
 to:be their villains, and of their suit and chattels, or
 
 262 BRITTOK [I, *127. 
 
 whether they were formerly their villains, and have 
 since fled from them ; and if so, how long since. For 
 if they have been fugitives above a year, there is no 
 room for the exception, as has been before said ; but 
 if the lords can aver their seisin within a year and day, 
 then it holds good ; and in like manner, if the lord 
 can aver diligent suit to reclaim and recover him as 
 his fugitive and villain, although he has not been seized 
 of him within the year and day. 
 
 5. If the tenant pleads that the plaintiff is the villain 
 of another, he must further say, that he does not hold 
 the tenements which he demands in his own name, but 
 in the name of the lord whose villain he is ; in which 
 case the assise shall stand over, unless the plaintiff can 
 show by charter of feoff men t that he was enfeoffed 
 to him and his heirs. And even if he proves such a 
 purchase, this proof will not avail unless he further 
 show that his lord was never seised thereof since his 
 purchase ; and if it be found that the lord seised the 
 tenement after it had been purchased by his villain, 
 although he afterwards delivered it back to the villain 
 to hold at his will, the assise fails, because the villain 
 was not tenant in his own name, but in the name of 
 his lord. * And if the lord was never seised of the land, 
 then the exception of villenage shall not hold against 
 any stranger. 
 
 6. If the plaintiff pleads in replication to the ex- 
 ception of villenage, that he will not nor ought to 
 have his condition, whether lie be free or not, tried by 
 the assise, in such case the assise shall be taken upon
 
 1, *127 &.] TO THE PERSON. 263 
 
 the disseisin ex qfficio judicis, unless the tenant will 
 waive the exception ; and judgment shall be given ac- 
 cording to the verdict ; for we will that in favour of 
 liberty no one of free estate be in such case obliged to 
 put himself upon the jurors of the assise to determine 
 his condition without his consent ; but it is just that 
 the spoliation, which is founded simply upon possession, 
 be first tried, and afterwards the right concerning the 
 condition, which is of a higher nature. 
 
 7. But in writs which concern the property and the 
 right, as in the writs of right of customs and services, 
 where no other customs or services are demanded than 
 those which are due of right, and in other writs of right 
 this exception is of so great force, that if the villain, or 
 he who is alleged to be a villain, refuses to take issue 
 upon it, judgment shall thereupon be given against 
 him ; and if the plaintiff puts himself upon the assise, 
 and the assise passes against the lord, then the villain 
 shall for ever after be quit from the claim of his lord ; 
 and if against the villain, he shall for ever after remain 
 *his villain as much as if he had recovered him by writ 
 of naifty. 
 
 8. Bat in a possessory writ it has not so much force, 
 for although it pass against his condition, it is not 
 thereby impaired or prejudiced. For the exception 
 serves only to bar the plaintiff of his demand, and 
 does not alter the condition in any point, whether the 
 inquiry of the jury be concerning the plaintiff or con- 
 cerning his father, whether he died a villain, or in the 
 condition of a freeman although he was a villain. An
 
 204 BRITTOK [I, *12S. 
 
 inquest upon bastardy is similar in its effect ; for if an 
 inquest be taken upon the exception that the father or 
 other ancestor of the plaintiff died a bastard, although 
 it be taken by consent of the parties, and the inquest 
 find that he did die a bastard, yet the status of na 
 person is thereby altered or changed. 
 
 9. Other exceptions there are against the person of 
 the plaintiff, as if the writ is purchased in his own 
 name, where the complaint is of a wrong done to an- 
 other as well as himself ; as where the husband alone 
 is named in the writ, and the freehold is the wife's, ex- 
 cept in the case of disseisin done by a wife to her hus- 
 band. And if the writ be purchased in the name of 
 the husband and his wife, jointly enfeoffed of the free- 
 hold of the wife, and one of them die pending the writ, 
 the writ is thereby abatable. And the like, where any 
 woman takes a husband pending her writ in which she 
 alone is named. 1 Some plaintiffs also may be debarred 
 from their plaints, inasmuch as they have no several 
 action to demand anything certain in severalty ; as par- 
 ceners and others holding in *common, none of whom 
 could ever tell where his own share was. But if the 
 plaintiff demands to hold in common, he shall be heard. 
 
 10. Sometimes an exception arises on behalf of the 
 
 1 ' Ex hoc nota, that none can be party to the purchase, if he 
 be not expressly named, as when the husband marries the 
 disseisee after purchase of her writ. But it is not so of a, feme 
 sole disseiseress who takes husband after a writ purchased [against 
 her] ; because she may do it of malice [to defeat the action].* 
 Note in MS. N.
 
 I, *128 b.} TO THE ACTION. 265 
 
 tenant, from his own person, as where he can prove by 
 the assise that he is not disseisor. Also, where the 
 lord of the fee is plaintiff for arrears of his rent, with 
 which the tenement that has been viewed is charged, 
 before he has tried to distrain his fee. For if the 
 tenant demand judgment, whether the assise ought to 
 pass, before the lord has essayed to distrain his fee, or 
 is disavowed as lord, where the tenant acknowledges 
 the services in whole or in part, in such case this assise 
 does not lie, but distress from time to time for the 
 service acknowledged. 1 And if the lord by reason of 
 his poverty is not able to distrain his tenant, then let 
 the sheriff be commanded by precept of the Justices 
 that he aid the plaintiff in distraining his i'ee. 
 
 CHAPTER XIX. 
 
 Of Exceptions to the Action. 
 
 1. To the words in the writ, ' unjustly and without 
 judgment,' the tenant may plead that it was by judg- 
 ment ; and then it must be examined whether by judg- 
 ment of our court or of that of another, and whether 
 by our writ or without. *And if it was by judgment 
 of our court or of another without our writ, then the 
 exception shall not avail, but all that was done shall be 
 
 1 There appears to be some corruption in the text, which the 
 MSS. do not enable us to set right. Possibly we ought to read, 
 ' destresce soulement del service conu et otreie,' ' distress only 
 for the service acknowledged and granted.'
 
 266 BRITTOK [I, *129. 
 
 annulled. For without an authority given and defined 
 by us no one can be judge over another, especially to 
 take cognizance of or determine concerning the free- 
 hold of another. If the plaintiff admits that the judg- 
 ment was by original writ, but says that it \vas wrong- 
 ful, the assise in such case shall fall, and he must be 
 told to seek his remedy by writ of false judgment. 
 But the assise shall not stand over for any judicial writ 
 not issuing out of an original. 
 
 2. If any one puts in view a tenement consecrated 
 by the bishop, or any other thing which ought not to 
 be the property of any one, the action and assise there- 
 by fall, and the plaintiff shall be in mercy for his false 
 plaint. And as such tenement ought not to continue 
 in the possession of the tenant, let inquiry be made 
 concerning the tenement ; and if it be found that the 
 tenement ought not to remain with the tenant, let the 
 tenant be in mercy for his tortious occupation, and the 
 tenement be restored to its former state. Let like 
 proceedings be taken with regard to a tenement oc- 
 cupied in several ty which ought to be common to any 
 general body, or other community. With respect to 
 the king's highway, or other like thing, an assise 
 shall always fall and be turned into trespass ; and in- 
 quiry shall be made of the trespass and purpresture, 
 and judgment shall be given according to the verdict. 
 
 *3. Sometimes the assise falls for uncertainty, al- 
 though it is not on that account turned into a jury or 
 perambulation, 1 as happens between a woman and 
 1 See c. xvii. s. 8, p. 319. and c. xx. below.
 
 I, *129 &.] TO THE ACTION. 267 
 
 the warrant of her dower before any assignment is 
 made to her of her dower in certain, where if both are 
 ejected, and the woman alone complains and puts in 
 view the third of the whole tenement as her dower, 
 yet she shall not recover any tenement or any seisin 
 by the assise, inasmuch as her portion was never as- 
 certained. But if general seisin has been made to her, 
 then it is sufficient to put her in such seisin as she had 
 before; and if special seisin was given her, but she 
 cannot now tell in what place by reason of the bound- 
 aries being removed, or by a like accident, then let 
 land of the like value be assigned to her by the estima- 
 tion of the jurors of the assise, as much as they can 
 estimate among themselves to have been the amount 
 of the tenement whereof she was disseised. 
 
 4. The assise also falls for uncertainty in the person 
 .of the plaintiff, as if the jurors have no knowledge of 
 him at all. So, where they do not know for certain 
 whether he held the seisin in his own name or in the 
 name of another. The assise also falls where the 
 jurors do not know who has the better right, the plain- 
 tiff or the tenant, as well to the possession as to the 
 property. *Likewise, where the plaintiff claims by title 
 of gift or feoffment, if he was never seised in the life- 
 time of the feoffor. The assise also falls, when brought 
 by two sisters, who complain in common with their 
 husbands, but the husband of one of them is not named, 
 and this whether he be a felon or not, so long as he is 
 living. 1 So if the principal town is not named ; for in 
 
 1 -' A freeholder (un prudome) has four daughters, two of whom
 
 208 BKITTON. [I, *130. 
 
 one town there may be several parishes, and in one 
 parish several manors, and several hamlets may belong 
 to one manor, as shall be mentioned in the plea of 
 right ; but if the principal town is not named, the assise 
 shall stand over. 
 
 CHAPTER XX. 
 
 Of Assises turned into Juries. 
 
 1. Assises are put off several ways, some for a time, 
 some for ever ; and some are turned into juries by assent 
 of the parties, where he who refuses his assent after he 
 has pleaded shall be held to fail in his plaint, or be con- 
 demned as undefended ; others ex officio judicis, as 
 where the parties differ in what vill, county, manor, 
 fee, or barony, the tenement is. Assises are put off 
 for a time by pleas in abatement and dilatory exceptions. 
 By peremptory exceptions they are barred for ever. 
 
 *2. Some are turned into juries by the exceptions 
 being denied, as in this case, where the plaintiff says 
 that he was seised by title of succession after the 
 death of his ancestor, who died seised, and whose next 
 heir he is, and after whose death he presently entered 
 
 take husbands. The husband of one commits felony, for which 
 he is outlawed, and abjures the realm. The father then dies. 
 The inheritance is occupied by a stranger, and the four daugh- 
 ters are to purchase by the assise. Qu. Whether it is proper to 
 name the felon, husband of one of the daughters, or not. Note 
 in MS. N.
 
 I, *130J.J INTO JURIES. 269 
 
 and kept himself in seisin until the disseisor wrongfully 
 and without judgment ejected him, if the tenant 
 meets this by saying that the ancestor of whom he 
 Speaks never died seised in his demesne as of fee, inas- 
 much as he held only for term of life, and that there- 
 fore the plaintiff cannot have a freehold by any title 
 of succession ; and if the plaintiff replies that the 
 ancestor died seised as of fee, then the assise shall drop, 
 and by the assent of the parties the jurors become as 
 it were arbitrators ; and judgment shall pass accord- 
 ing to their verdict ; l nevertheless upon such verdicts, 
 though passed by common assent of the parties, an 
 attaint may lie. 
 
 3. So if it be disputed between the parties whether 
 the ancestor held the tenement in gage or under any 
 other condition or not, and whether the condition was 
 satisfied or not. The like, where the younger brother, 
 or bastard, or other, is ousted by the true heir, if the 
 contest be which is eldest or legitimate, the truth of 
 these questions shall be inquired by a jury by assent 
 of the parties ; and the like in other such cases which 
 are numberless, in which the assise is turned into a 
 jury by dilatory exceptions between the parties. 
 
 *4. If the plaintiff says that he was seised by title of 
 gift, until he was wrongfully ejected, it may be said 
 in answer, that he by whose gift he claims title was never 
 
 1 ' These things are necessary to succession, true ancestor, true 
 ownership in him, true succession, true heir, and true seisin ; of 
 which the four turn the assise, and the fifth makes the assise in 
 its proper nature (en sa grasse nature).' Note in MS. N.
 
 270 BRITTOK [I, *131. 
 
 in seisin, so as to enable him to make any gift ; or if 
 the donor was seised, he never divested himself of the 
 seisin in his lifetime ; nor was he who is plaintiff ever 
 seised in the lifetime of the donor, but after the death 
 of the donor he by his own force abated himself into 
 the tenement, out of which the tenant as next heir 
 presently ejected him, so that he was in only by mere 
 abatement ; and if the parties by common consent pray 
 averment, the assise shall cease, and it shall be inquired 
 by jury whether the plaintiff was seised by his own 
 abatement or by the livery or induction of seisin by 
 the donor in his lifetime ; and judgment shall be given 
 according to the verdict. 
 
 5. If the jurors know nothing of the facts, the 
 plaintiff shall take nothing by his plaint, but be in 
 mercy for not proving his contention. And if the jurors 
 are in doubt, the assise shall be stayed, and it shall be 
 adjudged, as before, against the plaintiff. 
 
 6. If the plaintiff derive his title under gage or con- 
 ditional purchase, and the adverse party say that the 
 condition was satisfied, or that satisfaction was ready to 
 made be on the day *named in the deed, by denial of the 
 party the assise shall cease, and shall be turned into a 
 jury, if the parties consent, to inquire whether such satis- 
 faction or tender was made or not. For suppose now 
 that the plaintiff should say that he is disseised of his 
 freehold, and should derive his title under a gift and 
 feoffment, and say that by the gift and feoffment of 
 the disseisor himself he was seised of this tenement, and 
 did homage to him, and took the profits, and enjoyed
 
 I, *131 &.] INTO JURIES. 271 
 
 his peaceable seisin from Easter until Christmas, when 
 the feoffor himself wrongfully ejected him ; if the 
 tenant answer, he may well acknowledge the gift and 
 the feoffment, and the charter and the homage, but if 
 he can prove by writing that all these acts were con- 
 ditional, 1 as thus, I enfeoffed you and took your 
 homage upon this condition, that if I find within the 
 year and day that you hold land anywhere of the king 
 in chief, I may put myself in seisin and eject you with- 
 out wrong, so that when I shall have found for certain 
 that you hold elsewhere of the king in chief, I shall law- 
 fully eject you by virtue of that condition to which you 
 assent, if such conditions can be shown by writing on 
 one side and on the other, then the plea shall proceed 
 according as the writings are admitted or denied. 
 
 *7. And if the conditional writings are falsely denied, 
 although this falsity be afterwards proved, yet as it 
 may happen that the condition has not been satisfied, 
 an inquiry must of necessity be made concerning such 
 
 1 ' Nota, quod modernis diebus no charter can be conditional on 
 account of the statute Quia emptores terrarum. For the pur- 
 chaser must hold either of his feoffor or of his chief ; and of his 
 feoffor only in fee tail. For when once the purchaser is in right- 
 ful seisin of the fee and freehold, he cannot be ousted except by 
 his own consent ; neither can the donor, who has once divested 
 himself, have it again except by a new title. But as soon as he 
 gives to hold of the chief lord, he divests himself entirely (se 
 demet tot nettement). Wherefore the charter must be absolute 
 (simple) ; and if there be any collateral deed of covenant, the 
 donor cannot retain his seisin by his own force, but must use 
 his writ of covenant.' (Note in MS. N.) See above, pp. 236, 
 238, and notes there.
 
 272 BRITTOX. [I, *132. 
 
 satisfaction, and judgment shall go accordingly, as ap- 
 pears in the chapter concerning Right. For although 
 the charter be proved good, yet it may be void and of 
 no force by reason of its false testimony in saying, I 
 have given, whereas no gift was ever made, although 
 there was some proposal of a gift. Hence it is not suf- 
 ficient to prove the charter alone, unless the gift is 
 proved ; for it may be that the charter is good and 
 genuine, and yet the purchaser did not acquire the tene- 
 ment by the gift of him who made the charter, but by 
 his own abatement, or by disseisin or intrusion. So on 
 the other hand, although the charter be proved to be 
 false, yet it may be that the gift was good and lawful ; 
 wherefore both the gift and the charter must be 
 proved. 
 
 8. If such conditions are set up without evidence of 
 any writings, the adverse party may deny by their law, 
 with eleven compurgators, that there ever was such a 
 condition. And if the charter be one of simple feoff- 
 ment without condition, and the gift be admitted or 
 proved, then no credit need be given to an oral allega- 
 tion of a condition on account of the presumption aris- 
 ing from the charter which does not mention any con- 
 dition. 
 
 *9. If the donor by virtue of any condition contained 
 in the deed between him and the purchaser cannot put 
 himself in seisin and eject the purchaser according to 
 the condition, he must in that case be aided by writ of 
 covenant, in which the process shall be by the great 
 .and little Cape, as is in a real action.
 
 I, *132 &.] INTO JUKIES. 273 
 
 10. It often happens that the plaintiffs are prevented 
 from recovering seisin by means of their plaints; as 
 where the jurors of the assise have no kind of knowledge 
 or presumption as to the agreements affecting the plain- 
 tiff, 1 or concerning the thing whereof the plaint is 
 made. They may also be impeded by their own will, 
 as incase of conditions ; also by release and quitclaim ; 
 and by accord, as where the person ejected has agreed 
 to accept the value ; also, by charter of confirmation 
 from the person ejected ; also by consent, as if the 
 disseisor makes a gift of the tenement, and the person 
 ejected executes a charter of confirmation. They may 
 also be prevented from recovering by their own force 
 and usurpation, as if they take back by their own force 
 what they ought to have repurchased by judgment. 
 Difficulty of judgment is another impediment. So also 
 a legal judgment. And in all these cases upon a dif- 
 ference between the parties the assise shall be turned 
 into a jury, and by way of jury such questions shall be 
 determined. 
 
 *11. Where the plaintiff grounds his title on the ' law 
 of England,' and the tenant pleads that he cannot have 
 a freehold by this title because he never had issue by such 
 a wife, or if he ever begat a child the child died in the 
 womb, or if born alive it was not a child but a monster, 
 or supposing it to be a child it was never heard to cry ; 
 and if the plaintiff replies to the contrary, the assise 
 
 1 The sense of the original is doubtful. There appears to be 
 some corruption in the text, which I have found it impossible to 
 .remove. 
 58
 
 27 BRITTON. [I, *133 
 
 shall cease and be turned into a jury. And if the jurors 
 say that they saw the plaintiff in full seisin, and that 
 he was ejected therefrom, but that they know nothing 1 
 concerning any child by reason that the wife of the 
 plaintiff died in childbed in another part of the country, 
 then the sheriff of that place shall be commanded that 
 he take with him the coroner of the country, and in the 
 presence of the parties, if they choose to be there, in- 
 quire where the wife of the plaintiff died, and whether 
 she died in childbed or not, and whether she ever had 
 a child by this plaintiff after he espoused her, and 
 whether it was heard to cry or not, and that he make 
 his return, on such a day and at such a place, of that 
 which he shall find by inquest ; and judgment shall be 
 given according to the return. 
 
 12. Or the tenant may admit that the woman in 
 whom the fee and freehold were vested had children 
 by the plaintiff, yet that the same ought not to avail 
 him, inasmuch as those children were afterwards proved 
 to be bastards ; and if the plaintiff denies this, the 
 assise shall cease and be made a jury by consent of 
 the parties. And if the plaintiff demands how they 
 *were bastards, and the tenant answer, because they 
 were born before the plaintiff married their mother, 
 in such case the truth shall be inquired by means of a 
 jury, and not in the form of an assise. And if he says, 
 by reason that the plantiff never married their mother, 
 and the plaintiff alleges the affirmative, then the assise 
 shall stand over until it be determined in court Chris- 
 tian whether he ever married her or not. The mode
 
 I, *133 5.] INTO JURIES. 275 
 
 of proceeding in such cases shall be described in treat- 
 ing of exceptions in the Plea of Right. 
 
 13. The assises are sometimes also turned into juries 
 on account of trespass, as where any one desires to use 
 the soil of another against the consent of the owner. 
 And if any parcener or other would make severance of 
 what is common against the will of the commoners, or 
 if any commoner commits excess by taking more than 
 his due, the act amounts to a disseisin ; and yet it may 
 be a trespass according to the distinction, as where he 
 does not claim any freehold ; and then the assise shall 
 cease and be turned into a jury to inquire of the trespass 
 and damages. But because one cannot in such case 
 immediately discover the intention of the trespasser, 
 the plaintiff acts prudently if he proceeds by this assise. 
 And if the act be done a second time, then the assise 
 holds, so that the plaintiff may recover his peaceable 
 seisin. *If it be done a third time, the penalty of 
 redisseisin shall be incurred. If the disseisor claims 
 a freehold, upon this the assise shall take place ; 
 and if the assise say that he has a freehold as a com- 
 moner and not in severalty, let him be adjudged to 
 have the same seisin as he had before, and be punished 
 as a disseisor for the excess. 
 
 14. But in the case of common tenements where 
 disseisins are made secretly and are begun by little 
 and little, it is expedient to take pledges of the tres- 
 passers, and to impound the beasts, if any do damage 
 in the commons or surcharge them with cattle, so that 
 upon such seizures satisfaction may be made by the
 
 276 BUITTOX. [I, *134. 
 
 award of neighbours. And if any one claims a free- 
 hold, the owner will act wisely, in the first place, if he 
 keeps him out, so that he may not do any disseisin ; 
 and if he cannot be prevented, then this assise takes 
 place. 
 
 15. So likewise for trespass by waste and destruc- 
 tion, and also for excessive distress. For excess in 
 distraining sometimes breeds disseisin, and sometimes 
 trespass ; disseisin, where any one distrains another, 
 whereby husbandry is disturbed, whereas there is no 
 occasion for the distress ; trespass, where one distrains 
 the tenant of the tenant instead of the mesne tenant, 
 the mesne being of sufficient ability. So if the de- 
 mesnes are distrained when the villenages are suffi- 
 cient ; or the distress is by immovables where there 
 are movables enough to be distrained, *or within the 
 house when enough may be found out of doors, or by 
 beasts of the plough where there are enough of other 
 beasts not used for labour, or by apparel or riding-horse 
 or vessel where the other chattels may be distrained, 
 or if the distress taken be in excess, as twenty pounds 
 for twenty shillings, or if the distress be driven out of 
 the county or out of the fee. And according as it shall 
 be found to be disseisin or trespass, the assise is held 
 as an assise or is turned into a jun r to inquire of the 
 trespass. There are more exceptions that cannot all 
 be particularly mentioned here, some of which hold in 
 other pleas, as will further appear in treating of chal- 
 lenges of jurors.
 
 I, *1345.] OF CHALLENGE OF JURORS. 277 
 
 CHAPTER XXL 
 
 Of tlie challenge of jurors, and of the trial of the assise. 
 
 1. When the parties have pleaded to an assise or to 
 a simple jury upon any exception, the day may be de- 
 layed many ways, as for default of jurors. Or if a 
 sufficient number of jurors appear, yet some may be 
 removable by the just challenge of the parties. 
 
 2. Sometimes the day is delayed on account of the 
 season ; for all seasons are not fit. For it is forbidden 
 in the Canon by holy Church upon pain of excommu- 
 nication, that from Septuagesima until the Octaves of 
 Easter, and from the beginning of Advent until the 
 Octaves of *the Epiphany, and on Ember days, and on 
 the days of the greater litanies, and on Rogation days, 
 and in the week of Pentecost, and in the time of har- 
 vest or vintage, which last from St. Margaret's day 
 until fifteen da^ys after Michaelmas, and on solemn fes- 
 tivals of Saints, no one shall be sworn upon the holy 
 Gospels, or hold any secular plea, or make any sum- 
 mons in the times aforesaid, so that all these seasons 
 be set apart for prayer, and for appeasing of quarrels 
 and reconciling those who are at variance, and for 
 gathering the fruits of the earth which are to be the 
 food of man. Nevertheless the bishops and prelates of 
 holy Church do sometimes grant dispensations, that
 
 278 BRITTOK [I, *135. 
 
 assises and juries be taken in such seasons for reason- 
 able cause. 
 
 3. When the day cannot be put off on account of the 
 season being improper, the jurors may be challenged, 
 and sufficient and reasonable exceptions alleged why 
 they ought not to be sworn or be in verdict against the 
 party. For the same objections lie against jurors tak- 
 ing the oath as against a suspected witness giv r ing his 
 testimony, inasmuch as no one who has been once con- 
 victed of perjury ought to be sworn, for such are held 
 to have forfeited their free law, so as not to be cred- 
 ited upon any oath which they take. Nor ought those 
 to be sworn who have suffered judgment of life and 
 limb, or punishment of pillory or tumbrell ; nor those 
 who want discretion ; *nor excommunicated persons ; 
 nor lepers removed from society ; nor priests or clerks 
 within holy orders; nor women; nor such as dwell 
 away from the neighbourhood ; nor those who are 
 above seventy years of age ; nor allies in blood ; nor 
 such as can claim any right in the tenement ; nor vil- 
 lains ; nor persons indicted or appealed of felony ; nor 
 those of the household of any of the parties ; nor those 
 who are liable to be distrained by either of the parties ! 
 nor their lords, or counsellors, or accountants. 
 
 4. When the parties have agreed upon the jury, then 
 let the first juror, touching the holy Gospels, swear 
 after this manner. ' Hear this, ye Justices, that I will 
 speak the truth of this assise,' (if the assise is to be 
 taken in manner of an assise and not as a jury,) ' of 
 the tenement of which 1 have had the view bv the
 
 I, *135 J.] OF CHALLENGE OF JUKOES. 279 
 
 king's precept ; ' or thus : ' of the tenement whereout 
 such rent is said to arise ; ' or thus : ' of the pasture 
 and of the tenement,' or ' of the common, whereof I 
 have had the view.' Thus the words of the oath must 
 be varied according to the form of the writ and dec- 
 laration ; and if the plaint be made of nusance, then 
 it shall be said thus : ' of the nusance and of the tene- 
 ment to which the nusance is said to have been com- 
 mitted ; ' or thus : ' of the wall, or pond, and of the 
 tenement,' without adding ' whereof I have had the 
 view.' Then it continues thus : ' and I will not fail for 
 anything to speak the truth, so help me God and his 
 Saints.' Then let the rest swear thus : ' The same oath 
 which such a one hath thus sworn, I for my part will 
 keep, so help me God and the Saints.' Then let the 
 Gospels be kissed with all reverence as *our faith and 
 salvation. If several assises are to be taken under one 
 oath, then it shall be said : { of the assises and of the 
 tenements whereof I have had the view ; ' or thus : ' of 
 all assises, and of those tenements whereout such rent 
 is supposed to arise ;' or thus: 'of those tenements, 
 and of the common of pasture, or turbary, or other, 
 and of the tenements to which it is said they ought to 
 belong, whereof I have had the view ; ' or thus : ' of 
 this assise, and of the corrody, and of the tenement,' 
 and so of others. And in the other assises of mort- 
 dancester and darrein presentment the oath shall be 
 taken in the same manner. 
 
 5. When twelve are sworn, and their names enrolled, 
 then let the writ be read to them by the clerk pro-
 
 280 BKITTON. [I, *136. 
 
 thonotary, who shall address them in this manner : 
 ' You shall say by the oath you have taken whether 
 such a one wrongfully and without judgment has dis- 
 seised the plaintiff of his freehold in such a vill within 
 the term, or not.' The Justice also shall straightway 
 rehearse the substance of the plaint thus : ' John, who 
 is present here, complains of Peter that he has wrong- 
 fully and without judgment disseised him of his free- 
 hold in such a vill, whereof he puts in his view ten 
 acres of land (or more or less), with the appurtenances ; ' 
 and then let him mention the declaration of the plaintiff 
 and the allegations of the defendant for the informa- 
 tion of the jurors. 
 
 *6. The jurors shall immediately withdraw by them- 
 selves to confer together ; and then let them be so kept, 
 that none of them speak with any other person except 
 the jurors, nor any other person with them. And if 
 any do so maliciously, and be found guilty thereof, let 
 him be punished by imprisonment and fine, and let the 
 jurors be amerced, if they have not themselves accused 
 him. Moreover let the jurors be watched, that they 
 do not give warning to any one, by motion or the e} T e 
 or by other sign, against which of the parties they 
 intend to pronounce their verdict; and whosoever shall 
 do so, and be found guilty thereof, shall be amerciable 
 or otherwise punishable according to the mischief 
 which may arise. 
 
 7. If the jurors cannot agree, let others be added to 
 the majority of the jury, if the parties consent ; and if 
 not, let the judgment be against him who refuses to
 
 I, *136 &.] OF JUDGMENTS. 281 
 
 consent, so that if the plaintiff refuses, the seisin shall 
 remain as before, and he be in mercy ; and if the dis- 
 seisor refuses, he shall be adjudged as undefended. If 
 the jurors cannot pronounce the truth, nor return any 
 verdict as to the fact, let the seisin remain in the tenant, 
 and let the plaintiff be in mercy for not having proved 
 the case made by his plaint. If the jury refuse to 
 pronounce any verdict in the matter through favour to 
 either of the parties, or for any other reason, then let 
 them be shut up without meat or drink until they 
 have given their verdict. 
 
 *CHAPTER XXII. 
 
 Of Judgments. 
 
 1. "When the jurors are all agreed, let them immedi- 
 ate^ go to the bar before the Justices, and declare 
 their verdict ; and according to their verdict let judg- 
 ment be given for one of the parties, unless any doubt 
 or difficulty arise, which may make it necessary to ex- 
 amine the facts by the jurors or others, or to defer 
 judgment until another day, so that the Justices may 
 in the mean time be advised and consult what is best 
 to do therein. Where the Justices however are doubt- 
 ful about the verdict, and the jurors have not been 
 sufficiently examined, or have been too hasty in their 
 judgment on account of some word or sentence which 
 might have a double intendment, in such case a certifi- 
 cation may be taken by the same or other Justices.
 
 282 BRITTON. [I, *137. 
 
 But it is better and safer for the Justices thoroughly 
 to examine the reasons of the jurors so that they may 
 give a good and sound judgment, and that no error 
 may be found either in their office or in the proceed- 
 ings. 
 
 2. When the jurors have declared their verdict upon 
 the substance of the assise, or upon any exception, and 
 such verdict is given against the plaintiff, then let it 
 be awarded that the tenant and the others named in 
 the writ go quit of that assise without day, and that 
 the plaintiff take nothing by his writ, but be in *our 
 mercy for his false plaint. Nevertheless his pledges to 
 prosecute shall not in such case be amerciable, inas- 
 much as the plaintiff has prosecuted his suit to the end. 
 
 3. When the assise is taken after the manner of an 
 assise, regard must be had to the quantity and quality 
 of the plaint, and ho\v much the plaintiff has put in 
 his view and set forth in his plaint ; since the oath of 
 the jurors does not extend to that which he has not 
 put in his plaint. And if the Justice awards to the 
 plaintiff more than be has pat in his plaint, or if the 
 jurors give him seisin of more than he has put in his 
 view, they commit a manifest disseisin on the tenant : 1 
 as does the sheriff also, who puts in execution the com- 
 mand of the judge, because in such a case, or in any 
 
 1 ' Ex lioc nota, that the plaintiff's demand is the Justice's 
 warrant, and the foundation of the judgment. Wherefore if the 
 judgment is given upon a demand other than that which the 
 plaintiff has truly made, whether more or less, the judgment is 
 false.' Note in MS. N.
 
 I, *137 &.] OF JUDGMENTS. 283 
 
 other where the Justice's jurisdiction does not extend, 
 no bailiff ought to obey him in executing his commands. 
 The plaintiff is in a like position who receives such de- 
 fective seisin. So likewise where the plaintiff en- 
 croaches upon the disseisor more than right under 
 colour of judgment. And if the plaintiff puts too 
 much in his view, he is amerciable for his excessive 
 demand. 
 
 4. If the verdict be given for the plaintiff, it shall 
 be forthwith inquired who were present at the disseisin, 
 and the manner of the fact, whether the disseisin was 
 committed with banner displayed, or horses harnessed, 
 or by other force of arms, and by what force, and by 
 what arms. And it should be understood that there 
 are divers sorts of arms and divers kinds of force. For 
 all those are said to be armed who carry anything 
 wherewith they may do hurt to people or overpower 
 others, as well as bows, arrows, knives, hatchets, and 
 staves, as hauberks, lances, and swords. So there is 
 armed force, and simple force without arms, as by 
 multitude of people. 
 
 *5. And because many a man, having no right, gains 
 seisin by such force, upon which the tenant who has a 
 right to retain and abide in possession leaves the tene- 
 ment to avoid further mischief, and forasmuch as such 
 ways of obtaining seisin are in part against our peace, 
 we will that the Justices inquire, who came in the force 
 along with the principal disseisor, so that the disseisor 
 and those of the force be punished by imprisonment 
 and fine if they are convicted of a disseisin effected by
 
 BRITTON. [I, *138. 
 
 force, and if by arras, then ransomed. And if any be 
 convicted of a disseisin done under colour of right, and 
 without breach of the peace, as by a simple disseisin 
 done in the daytime, without force and arms, with a 
 white wand in sign of peace ; in such case let the dis- 
 seisor be amerciable by their peers, and also make sat- 
 isfaction to the plaintiff in damages. The penalty 
 above mentioned, which is to be imposed upon disseisors 
 who eject people from their freehold, whether by force 
 or arms, or, as it should be done, after a peaceable 
 manner, shall also be imposed upon disseisors who 
 with force or arms, or simply without arms, keep a 
 man out of his freehold when he expects to enter 
 peaceably therein. 
 
 6. Sometimes it happens in this assise that the dissei- 
 sors shelter themselves by us, and say that they neither 
 have or claim anything in the tenement, *but whatso- 
 ever they did was done in our name, and that without 
 us the assise cannot pass, nor the fact be brought in 
 judgment without prejudice to us ; in which cases we 
 will not that under such pretext the assise shall stand 
 over ; but if the disseisin be clear and manifest, let it 
 be adjudged for the plaintiff, and let the common law 
 take its course against the tenant as against any other 
 person ; and if any doubt be perceived, let judgment 
 be respited to another day, and let the proceedings in 
 the meantime be laid before us, so that judgment may 
 be ordained by our advice. 
 
 7. And because it often happens that the tenant has 
 not committed an}^ disseisin or wrong, but has possibly
 
 I, *138&.] OF JUDGMENTS. 285 
 
 purchased the tenement by feoffment of the disseisor ; 
 in such case it is reasonable that the tenant should be 
 iible to vouch to warranty the disseisor, so that he 
 who has done no wrong may not be punished for the 
 trespass of another, without recovering to the value 
 from his feoffor ; and then let the same proceeding 
 be observed as shall be mentioned concerning warranties 
 in the assise of Mortdancester. If two or more assises 
 are prosecuted by several persons against one, the last 
 seisin shall be first tried, and so backwards to the first 
 disseisin. 1 
 
 *S. Afterwards let it be inquired of the jurors what 
 damages the disseisors and the tenants have committed 
 in houses, woods, gardens, warrens, vivaries, parks, 
 rabbit-warrens, and elsewhere ; and how much has or 
 might have been by good husbandry received in the 
 
 1 ' A is disseised by B. B continues seised, and is ejected 
 by C. C is ousted by D, who enfeoffs E ; A brings assise 
 against B and E ; B brings assise against C and E ; C against 
 D and E. Qucestio, whether E, tenant, ought to answer to 
 all at the same time, or if not to all, to whom first ? 
 Solutio : The Justices ex offieio ought to inquire of the last 
 seisin in this manner : ' Good people of the assize, you shall tell 
 us by your oaths which of these three, who bring assise of the 
 same tenement against the same tenant E, was last seised, 
 whether A or B or C.' And if they say C, and before him B, and 
 before him A, then the judgment shall be thus : ' For as much 
 as we find that B hath disseised A, and C hath disseised B, and 
 D hath disseised C ; therefore this Court doth award that B and 
 C, being disseisors, do take nothing by their writs, but be 
 amerced, and that A do recover his seisin against E by your 
 views.' (Note in MS. N.) Compare Bracton, 177, 178.
 
 286 BRITTOK [I, *139. 
 
 meantime of all kinds of issues of the tenement, and 
 what profit in value the plaintiff might have had if he 
 had not been disseised ; and it shall be awarded ac- 
 cordingly that the plaintiff recover his full damages. 
 And if the Justices perceive that the jurors are dis- 
 posed to relieve the disseisor by assessing light damages, 
 because on the other hand they have made him suffer 
 by the loss of the tenement, let the lands be extended 
 by the same jurors at their true value in the presence 
 of the parties, if they will be there ; and according to 
 the yearly value let the damages be taxed by the Jus- 
 tices, single or double, according to the ordinance of our 
 statutes, and according as the assise shall have been 
 falsely defended or not. 
 
 9. If the disseisors have taken away or detained from 
 the plaintiff any vessel, robe, or chattel, it shall be in 
 the election of the plaintiff either to sue for his chattels 
 by appeal of robbery or trespass, or to have them taxed 
 with the rest of his damages. The damages for wild 
 animals taken in parks or chases, and for fish taken out 
 of ponds, shall be assessed by the jurors ; for in such 
 cases the penalty of three years' imprisonment does not 
 lie, *nor in any case except where judgment of felony 
 can be given, if the offender is in peril of life and limb, 
 If houses have been burnt or other damage has happened 
 in the meantime, although it was by an unforeseen ac- 
 cident, without any human malice, yet the disseisor is 
 not thereby discharged from making satisfaction as 
 well for the chattels of the disseisee as for the goods of 
 others wrongfully detained by the disseisor.
 
 I, *139 J.] OF APPURTENANCES. 287 
 
 CHAPTER XXIII. 
 
 Of Appurtenances. 
 
 1. HAVING spoken above of disseisins of things corpo- 
 real, we must now speak of disseisors of things incorpo- 
 real, as of appurtenances. For although a tenement be 
 freehold according to the definition of it, yet in respect 
 of the services wherewith it is charged another tenement 
 may be more free ; and yet both are free tenements. 
 "Wherefore if one tenement be charged with any serv- 
 ice to another tenement, such service is properly an ap- 
 purtenance to the tenement to which the service is due, 
 which appurtenances no one ought to disseise another, 
 and if any one does so, the disseisee may be aided by 
 this assise, or by our writ to the sheriff, as shall be 
 hereafter mentioned. 
 
 2. It should be known that some appurtenances are 
 free, others servile ; free as in respect of the *persons 
 and tenements to which they are due, servile as regards 
 the tenements from which they issue, 1 and such servi- 
 tudes are always due from the tenement of another ; 
 
 1 Unless the text is corrupt, the above sentence appears to be 
 a mistaken rendering of the parallel passage in Bracton or Fleta, 
 when the sense is, that the same things which are rights or lib- 
 erties (jura sive libertates) in relation to the dominant, are servi- 
 tudes (servitutes) in relation to the servient tenement. This 
 observation is found subsequently in Britton, post, s. 8, p. 292.
 
 288 13R1TTOX. [T, *140. 
 
 although no one can subject the soil of any one to ser- 
 vitude but his own. And in this way some tenements 
 are more free than others ; for that soil is more free 
 which owes nothing to the soil of its neighbour, than 
 that which is bound to a servitude. 
 
 3. A person may subject his tenement to a servitude 
 in several ways, as by granting that another, who has 
 nothing therein, shall have a right of pasturing or 
 mowing, or fishing, or of driving cattle, or of way, or 
 of carrying therein, or by other servitudes which may 
 be infinite and numberless, according as the} 7 are simple 
 or compounded of other appurtenances. For there are 
 appurtenances, and also appurtenances of appurtenances. 
 For to a watermill, the course of water is one of the 
 appurtenances, and way is another, to which cleansing 
 and repairing are appurtenant, and are therefore 
 appurtenances to appurtenances ; and if any one 
 be disturbed thereof, remedy may be had by this 
 assise. 
 
 4. And whether the servitude be due from one soil 
 to that of another or to the person of another by the 
 consent of the true owners, for a certain service or by 
 reason of vicinage, they are not bound to the soil only, 
 or to the person only, but to the certain soil of another, 
 and also to the owner of the soil, whosoever the owner 
 may be. Hence it follows, that whosoever purchases 
 the soil ^purchases the appurtenances due to the soil, 
 unless hindered by special exception. Some of which 
 servitudes are ordained and established by those who 
 have power to charge the soil, and others by long
 
 I, *140 &.] OF APPURTENANCES. 289 
 
 usage on the one side, and by sufferance and negli- 
 gence on the other. For in such a case it is presumed 
 that sufferance with knowledge amounts by prescrip- 
 tion of time to consent. For although a tenement be 
 not burthened with any kind of servitude by appoint- 
 ment or other good title from the owner of the soil, 
 yet if the neighbour has taken by encroachment upon 
 the soil of his neighbour any servitude, as the depastur- 
 ing of the herbage on his neighbour's soil, and the 
 hindering of the owner from pasturing, and has been 
 seised thereof, claiming freehold, without force and 
 without asking leave of the owner of the soil, and this 
 continually, and not privately by stealth, but boldly 
 and openly, he can never be ejected or disturbed with- 
 out being disseised. And if he to whom the wrong is 
 done by his own consent, disseise such purchaser by 
 force and not by judgment, that presumption shall be 
 so far prejudicial to him, that if the ejected recover 
 his seisin by judgment of our court, he shall not after- 
 wards eject him but by plea in the right by writ of 
 Quo Jure. But by a precarious or secret disseisin, as 
 in the absence of the owner of the soil, *although the 
 bailiffs of such owner be present or consenting, a free- 
 hold never accrues to such purchasers. 
 
 5. Sometimes the soil is subject to a servitude by 
 law, although not by any man's appointment, or by 
 the establishment of peaceable seisin, as, for example, 
 to the obligation that no one shall do anything in his 
 own soil that may be a grievance or annoyance to his 
 neighbour ; of which annoyances there are various
 
 290 BRITTON. [I, *H1. 
 
 sorts; for some annoyances may be lawful, and in. 
 particular such as no neighbour can forbid another to 
 do, as to erect a mill on his o\vn soil ; and some may 
 be tortious, as if any one do in his own soil a thing 
 which is a grievance to his neighbour, and which he 
 by law may be prohibited from doing. For the law 
 forbids any one to raise or heighten his pond so as to 
 drown the tenement of his neighbour, or to make a 
 ditch in his own soil whereby the water is diverted 
 from his neighbour, or whereby it is hindered from 
 remaining in its ancient course, or to do any act in his 
 own soil wherebv his neighbour mav be less able to 
 
 *> O 
 
 use his seisin of the servitude wherewith the soil is 
 bound and charged to him, or to use his peaceable seisin 
 where and when he ought, in all such ways as he was 
 wont and ought to use it, in number, kind, quality, and 
 quantity. 
 
 6. For there is secret as well as open disseisin ; for- 
 asmuch as he is equally disseised who is not suffered 
 to have his driftway over ^another's soil which is sub- 
 ject thereto, or is not permitted to repair and put in 
 order the way, as if the way was entirely destroyed, 
 or the whole soil turned into a fishpond ; and he who 
 is hindered from cleaning out the watercourse of his 
 mill is as much disseised as if the whole watercourse 
 were disturbed or diverted ; for to a right of water- 
 course the right of cleansing is appurtenant, as the 
 right of repairing is appurtenant to a right of way. 
 And he is as much guilty of disseisin who partly hinders 
 another's seisin, as if he disturbed him of the whole.
 
 I, *U1 *.] OF APPUKTENANCES. 291 
 
 And if any one has common in another's soil with free 
 ingress and egress by a certain place, if the owner of 
 the soil commits disturbance by making a hedge, wall, 
 or ditch, whereby the ingress and egress is less easy 
 than before, inasmuch as he must drive his cattle a 
 long way round where he could formerly drive them 
 straight, these and like acts may be treated as disseisins, 
 unless the nusances are redressed by presentment in 
 the sheriff's tourn, or in view of frankpledge. So in 
 this case, where any one has a right of pasture granted 
 to him for his cattle at whatsoever times he pleases, 
 and he is afterwards disturbed so that he can put them 
 in only at a certain time, or when he has a right to 
 pasture throughout the whole and he is hindered from 
 having it except in certain places, or where he ought 
 to have pasture for all manner of beasts and he is al. 
 lowed to have it only for one kind of beasts, or where 
 he ought to have pasture for a certain number and he 
 is suffered to have it only for a less number ; or if it 
 is granted to any one that he may draw away water 
 at his pleasure from another's well and he is disturbed 
 *as above mentioned concerning pasture, in all these 
 cases this assise is applicable, as much as if complete 
 disturbance had been made of the whole. 
 
 7. In all cases where this assise lies for the grantee 
 of such a franchise, it lies also for the owner of the 
 soil if he to whom the franchise is granted uses his 
 seisin in a different or more extensive manner than he 
 ought. Nevertheless it is well to hinder such excesses, 
 so far as possible, at the beginning, so that the dis-
 
 292 BTttTTON. [I, *142. 
 
 seisors may not avail themselves of peaceable seisin as 
 title of freehold. 
 
 8. The servitudes to which a man may subject his 
 land are innumerable ; and such rights and franchises 
 are purchased in the same manner and for the like 
 causes as corporeal things. But for the purchase of 
 these franchises the same formality of giving seisin is 
 not requisite, as in purchases of corporeal things. For 
 if the parties are agreed, the delivery of the deeds 
 together with the view of the tenements in^the presence 
 of neighbours is sufficient ; and if the purchaser be 
 thereafter hindered from enjoying the franchise granted 
 to him by one who had power to grant it, he shall be 
 helped by this assise, although he has not taken any 
 esplees. Thus, where pasture in another's soil is 
 granted in fee or for term *of life, and the writings are 
 delivered, and the soil assigned by view of neighbours, 
 if the purchaser, whether the next clay or a long while 
 after, has a mind to feed his cattle on the pasture of 
 that soil according to the tenor of his purchase, and is 
 hindered by the donor or another, he shall be aided by 
 this assise, although he never enjoyed the pasture. For 
 such franchises are so simple that they do not admit 
 of delivery of seisin, as gross, coarse, and material 
 things do. It should be understood that such purchases, 
 in relation to the purchaser and also to the tenement 
 to which they are assigned to belong, are franchises 
 and rights, and with regard to the owner of the soil 
 which is charged, and to the tenement bound thereto, 
 such purchases are servitudes.
 
 I, *142 ft.] OF APPURTENANCES. 293 
 
 9. But although the purchaser is thus in seisin, this 
 does not prove that such seisin is sufficient for ever. 
 For until he has taken other seisin of the pasture, he 
 cannot alien the same ; as in the like case of the ad- 
 vowson of a church, which cannot be granted before 
 the donor has been seised of the advowson by presen- 
 tation. The purchaser may also be barred of his seisin, 
 if the soil be aliened to a stranger before any other 
 seisin was taken thereof beyond the bare delivery of 
 the writings. Therefore it is proper to put in the 
 beasts forthwith. *For the putting in of one beast is a 
 sufficient seisin for all the rest which he might have 
 put in, although the beast be borrowed by the pur- 
 chaser of some other person, so it be not the donor, 
 unless it be specially excepted in the gift that he shall 
 depasture his own beasts only, and not those of others ; 
 and if he omits doing this he may lose his purchase 
 by his negligence, since it is presumed that he did not 
 intend to take any seisin. 
 
 10. If the purchaser has neither beast of his own 
 nor can borrow another for the purpose, then it is 
 sufficient to hinder the owner of the soil as much as 
 he can from ploughing and sowing, so that by such 
 molestation he retains a kind of seisin, and may put in 
 his beasts whensoever he chooses to send them, 
 although the land be ploughed and sown, or although 
 the corn be ripe. But if he has been so negligent as 
 to suffer the owner of the soil to plough and sow with- 
 out any dispute, and then takes seisin for the first time 
 while the corn is growing by feeding his beasts in the
 
 294 BRITTON. [I. 
 
 corn, in such case he commits a disseisin against the 
 owner of the soil ; and if the owner recovers by this 
 assise, the purchaser shall be barred of his pasture for 
 ever after by his negligence in too long delaying the 
 taking of seisin. But some one may say on the other 
 hand thus, Although you till and sow my land without 
 my leave and I knowingly suffer it, yet no wrong is 
 done me until you carry the produce away ; how then 
 is my negligence and the sufferance more dangerous in 
 the one case than in the other ? In answer to this, 
 it is to be observed that there is a negligent sufferance 
 and a sufferable caution. *For by suffering lands to 
 be ploughed the lands are improved, and by sowing 
 also ; and in such case the sufferance is good and pru- 
 dent to permit a man to sow another's land ; and it is 
 no disseisin to the owner of the soil, since nothing has 
 been done against his consent : but where no profit 
 accrues to him by the sufferance, but on the contrary 
 loss, as in the case in question, then it is negligent suf- 
 ferance ; for in the one case the condition of him who 
 permits the ploughing is made better, and in the other 
 worse. 
 
 11. Some enjoy the seisin of common in their own 
 right, and some in the right of others. And as a guar- 
 dian enjoys the seisin of common in the name of the 
 infant under age whose guardian he is, so likewise the 
 parson of a church enjoys it in the name of his church. 
 For a church is always supposed to be in the same 
 state as an infant under age, by reason of its always 
 being under the guardianship of its parson, by which
 
 I, *143 &.] OF APPURTENANCES. 295 
 
 guardians churches may purchase and amend their es- 
 tate, as infants may by their guardians ; but they can- 
 not assent to anything to their damage. Wherefore if 
 any church is seised of a common, although the parson 
 dies, yet the church does not in any manner lose its 
 seisin of its common, or any other seisin, any more 
 than an infant under age does by the change of his 
 guardians, by which change his estate is not impaired 
 or altered in any point. *Therefore every parson may 
 use that seisin which his predecessor left to the church ; 
 and if he be disturbed therein, he shall recover by 
 this assise. But if the predecessor was beforedisturbed, 
 or if the church was disseised in the time of its avoid- 
 ance, then another remedy is required, as by our writs 
 of entry, or of Quod permittat. 
 
 12. Forasmuch as there are several kinds of servi- 
 tudes, as we have before said, and the most important 
 of these is the right of pasture in another's soil, we 
 shall therefore first treat of common of pasture.
 
 296 BRITTOK [I, *144. 
 
 CHAPTER XXIV. 
 
 Of Common of Pasture. 
 
 1. Common is a general name, and no community 
 can be so restricted but that it be understood that there 
 are at least two or more parceners to whom it is com- 
 mon. And it properly signifies that one person has a 
 rio-ht to common with another in another's soil. Pas- 
 
 o 
 
 ture likewise is a general name for herbage, acorns, 
 mast, and nuts, and for leaves and flowers, and for all 
 things comprised under the name of pannage. 
 
 2. Purchases of common may be large or limited, as 
 at all times, or only at certain hours ; and as per my et 
 per tout, or onty in certain places; or as for all manner 
 of beasts, or only for certain kinds. Reasonable pro- 
 hibitions are nevertheless excepted in such purchases, 
 sometimes expressly and sometimes tacitly ; *for none 
 ought to common in respect of any purchase in seasons 
 of reasonable prohibition, as in hay time or harvest 
 time ; so in places particularly reserved for the pasture 
 of lambs or calves, oxen or cows, no more than within 
 the curtilage, or in gardens, orchards, or parks, or in 
 demesnes, which the lord may fence in or enclose at 
 his pleasure. 
 
 3. Common is acquired several ways ; as by gift, 
 where one gives to another any soil with common ap~
 
 I, *144 &.] OF COMMON OF PASTURE. 297 
 
 purtenant ; and by sale, as if one buy common in an- 
 other's soil, so that for ever after it be appurtenant to 
 his own soil, although the two soils be in different fee& 
 or different baronies or counties, so long as they are ad- 
 joining; by vicinage also, as if one neighbour gives com- 
 mon to another, and the reverse ; or by long sufferance 
 without other title, with the knowledge and consent 
 of the owners of the soil ; for neither the sufferance nor 
 consent of their bailiffs will ever give title of freehold, 
 nor will any arbitrary usurpation, if he who thus ac- 
 quired it hath not continued and used his seisin with 
 the knowledge of the owners ; *vet notwithstanding, if 
 any one having no right but only recent seisin by his 
 own abatement be ejected by another who has less 
 right, he who is thus ejected from his posession shall 
 recover such estate as he had by this assise. For al- 
 though he has no right to be thus in seisin, yet the 
 disseisors have no right to eject him from his seisin, 
 such as it is. But if he in whose person the property 
 is vested ejects him as soon as he knows of the usurpa- 
 tion, the ejected shall never recover by this assise by 
 title of peaceable continuance in seisin. 
 
 4. If any one purchases common of pasture in an- 
 other's soil, and has no tenement to which the common 
 may belong, this is not properly a purchase of common, 
 but a hiring of the pasture or herbage. 
 
 5. As common is acquired by the will and mutual 
 agreement of the donor and purchaser, so is it extin- 
 guished and destroyed by the mutual agreement of the 
 parties to the contrary, so that the assent or disassent of
 
 298 BKITTON. [I, *145. 
 
 one is of no avail either for purchasing common or for 
 waiving the purchase, unless there be a union of assents 
 or disassents by their common will. And as common is 
 sometimes purchased by long sufferance, so it is lost by 
 long negligence, but only on cases where seisin has been 
 openly enjoyed with the knowledge of the owners. 
 
 6. By mutual consent also that may become several 
 which before was held in common. For as land which 
 is common among parceners may by division become 
 several, in the same way any tenement of which the 
 pasture is ^common may be divided among the com- 
 moners, to be held in severalty. But for this the assent 
 of all the commoners is necessary. And when they 
 have once consented, and the boundaries are fixed, and 
 every one knows his several, no dissent afterwards will 
 avail. 
 
 7. Where any soil is charged with a servitude, the 
 servitude may be lessened, restrained, altered, and 
 limited, and in the same manner enlarged and increased, 
 but not against the consent of the donors and pur- 
 chasers. For if any one should do it against their 
 consent, this assise would lie for him whose soil it was 
 intended to burthen with more than was right ; or, on 
 the other hand, the remedy may belong to him to whom 
 the servitude is due, where less is performed than is 
 right. 
 
 8. When a gift is to be made of a common, there 
 must be a transfer of it from one person to another, 
 and from one tenement to another, and the persons 
 and tenements should be specified on both parts, as
 
 I, *145 .] OF DISSEISIN OF COMMON. 299 
 
 well the persons of the purchasers and the tenements 
 for which the common is purchased, as the persons of 
 the donors and the tenements which are to be charged 
 with the common ; for it is a general rule that there 
 can be no common without soil, that is to say, without 
 soil to which it is servient, nor without soil charged 
 with the service. 
 
 ^CHAPTER XXV. 
 
 Of the Remedy for Disseisin of Common. 
 
 1. Those who are ejected or disturbed of their com- 
 mon may have remedy by our writs, when they shall 
 be unable to retain or peaceably to enjoy their seisin. 
 The forms of remedy however are to be distinguished. 
 For according to the diversities of the cases the writs 
 must be varied ; for the same soil may be charged with 
 several servitudes to several soils, as well in the whole 
 as in part : and this may be true in divers ways ; one 
 way, on account of the different tenements to which 
 the servitudes belong ; another way, by reason of the 
 different persons to whom they are due ; and the third 
 way, by reason of a diversity both of the persons and 
 of the tenements. In the first case one writ is suf- 
 ficient, because of the unity of the person of the plain- 
 tiff ; but in the second and third cases there are divers 
 rights, and of divers rights there may be divers dis- 
 seisins, and for divers disseisins there must be divers 
 writs.
 
 300 BKITTOK [I, *146. 
 
 2. But if there be a unity in the tenement to which 
 the servitude is due, although there are divers persons, 
 as in case of parceners who hold a tenement in com- 
 mon, in such case, whether there be one plaintiff or 
 more, there need be only one writ, and that by reason 
 of the unity of their right, although they are divers 
 persons, and on account of the unity of the tenement, 
 which is held in common. *But if the tenement be 
 divided between the parceners, and any one of them be 
 afterwards disseised of common belonging to his part, 
 to such case separate plaints and separate writs lie, so 
 that each parcener shall bring a separate assise. If a 
 parcener is disseised of his common by one of his co- 
 parceners, the disseisor and disseisee only are to be 
 named in the writ, without naming the other parceners, 
 whether the parceners be merely neighbours or entitled 
 as one heir. 
 
 3. When we have thus granted our writs to the 
 plaintiffs, let them be forthwith attached by pledges ; l 
 and let jurors be chosen, and let the soil and place of 
 the common be viewed, as well as the tenement to 
 which it is due, so that the jury may be certified of 
 the extent and boundaries of the common, and for 
 what sort of cattle, and how many, and of all the 
 circumstances as to which they will be charged by 
 our Justices. 
 
 1 The French text is somewhat obscure ; but it is clear from 
 the parallel place in Bracton that the pledges spoken of aro 
 pledges to prosecute. The expression attachiato brevi occurs in. 
 Fleta, 259.
 
 I, *146 6.] OF DISSEISIN OF COMMON. 301 
 
 4. When our Justices are come into the county, and 
 the patent has been read, let the parties be immediately 
 called ; and if the plaintiff does not appear, or cause 
 himself to be essoined, whether the disseisor be present 
 or not, in every plea, it shall be adjudged that the 
 plaintiff and his pledges to prosecute be in mercy ; 
 whereby the writ is abated, so as never after to be of 
 service to the plaintiff, but he must purchase a new 
 writ. *If the plaintiff be in court, whether the disseisor 
 be there or not, let the original writ be read. 
 
 5. Afterwards let the plaintiff be asked of what com- 
 mon he makes his plaint, and of how much, and to 
 what tenement he claims the common to belong. And 
 then let him declare his title, as above is said. For if 
 he has no fee tenement to which the common may be- 
 long, he shall fail in his plaint without any other rec- 
 ognisance of the assise. He may then say that the 
 common is appurtenant to his free tenement in such a 
 vill by reason that he was enfeoffed of such a tenement, 
 at which time that common was appurtenant thereto, 
 and by such purchase he was seised thereof, and his 
 seisin peaceably enjoyed, until he was ejected or dis- 
 turbed. If he says that he is disseised of one hundred 
 acres of common, he may fail in his plaint, inasmuch 
 as he ought to say that he is disseised of the pasture 
 of one hundred acres of common.
 
 302 BKITTON. [I, *14T. 
 
 CHAPTER XXYI. 
 
 Of Exceptions to Common. 
 
 1. The plaintiff's contention being thus set forth, if 
 the tenant or his bailiff does not appear, the assise shall 
 proceed by his default ; but if the tenant is in court, 
 let him first consider how he may aid himself by ex- 
 ceptions against the judge, or against the plaintiff ; 
 against whom he may object, that the action and plaint 
 do not belong to him, inasmuch as he is only a farmer, 
 bailiff, or guardian ; *or he may say that he is his vil- 
 lain. Nevertheless, in case where a villain of whom 
 his lord is not seised has married a free woman, who 
 holds of her own inheritance the tenement to which 
 the common is appurtenant, and whereof the lord of 
 the villain has disseised them, the assise shall not be 
 barred by the exception of villenage, but the common 
 shall be united again to the freehold ; and the lord may 
 take proceedings to prove his right to the person of 
 the plaintiff if he thinks proper to do so. 1 
 
 2. There are several other exceptions ; thus, whereas 
 writ says ' hath unjustly disseised him,' the tenant 
 may traverse this statement, and say that he was 
 
 1 The above case is more fully explained in Bracton, where it 
 appears that even though the villain was in the lord's seisin, yet 
 the common might be recovered by the assise, as accessory to 
 the wife's freehold. (Bracton, 224 b, s. 8.)
 
 I, *147 b.] OF EXCEPTIONS TO COMMON. SO* 
 
 never seised ; and if he can verify this, the writ shall 
 fail. But before proceeding to the assise, the plaintiff 
 should be asked in what manner he was seised ; and 
 if he says by title of gift, then a slighter seisin is suf- 
 ficient on account of the union of the wills of the donor 
 and the purchaser, together with the view and assign- 
 ment of the tenements in the presence of the neigh- 
 bours, than where the title is by succession. For in 
 case of a feoffment, if the purchaser be ejected im- 
 mediately after the assignment of the donor, although 
 such purchaser has not put his beasts in the pasture, 
 yet it does not follow that he shall not recover by this 
 assise. But in case of succession it is otherwise. For 
 it may well be that the predecessor was disseised in 
 his lifetime ; or the seisin may have been usurped by 
 intrusion of the tenant during the vacancy *of seisin ; 
 in which case this assise will not avail the successor, 
 as above is mentioned. 
 
 3. To that which is contained in the writ, ' of his 
 common of pasture appurtenant to his freehold in such 
 a vill,' it may be answered that the soil of the com- 
 mon, and the tenement to which the plaintiff alleges 
 the common to belong, are of diverse baronies or diverse 
 fees, and that the fee in which the common is demanded 
 is so free that it is not charged with any sort of servi- 
 tude to the other fee, and that the plaintiff never com- 
 moned or had any right of common either by title, 
 usage, vicinage, or otherwise ; and if, notwithstanding, 
 he ever did common, it was by force, or secretly by 
 stealth, or by leave, or at will ; and if he otherwise
 
 304: BRITTON". [I, *148. 
 
 commoned, he never did so peaceably, but his beasts 
 were driven away or impounded, and he and his serv- 
 ants released upon security. To which the plaintiff 
 may reply, and allege the contrary, if he thinks fit to 
 do so. 
 
 4. Or the tenant may say, that the soil where the 
 plaintiff demands common is his several, which he may 
 plough, sow, and enclose at his pleasure, and at all 
 times keep enclosed. Or he may say that the plaintiff 
 hath no land or tenement to which that common was 
 ever bound or appurtenant ; or if he hath land or tene- 
 ment, yet no common is appurtenant thereto, for the 
 same tenement to which he claims the common to be- 
 long used to be forest, or heath, or marsh, or other 
 waste, and *common to all those of the neighbourhood, 
 though the same be now asserted and ploughed up, 
 and that one common cannot be appurtenant to another. 
 Or he may say that the principal disseisor named in 
 the writ is dead. Or he may say that he recovered the 
 common by judgment of our court as appurtenant to 
 such a tenement which he recovered. 
 
 5. Or he may say that the plaintiff wrongfully com- 
 plains, for that at the time of the plaint, and on the 
 day of the date of the writ, the plaintiff himself was 
 seized, and that the present plaint cannot try a fact of 
 more recent time; and therefore at the time of the 
 plaint he had no cause of action, and consequently the 
 plaint is null ; or that, if he was disseised at the time 
 he complains, yet he had no cause of action, for that 
 after he was disseised he took back his seisin without
 
 I, *148 &.] OF PASTUKE. 305 
 
 judgment, whereby he is become a disseisor, and that 
 an assise is therefore commenced against him. And 
 according as such exceptions shall be made good, 
 judgment shall be given for one party or the other. 
 
 CHAPTEK XXVII. 
 
 Of Admeasurement of Pasture. 
 
 1. Although a person has some right of common, 
 yet he ought not to exceed by putting in more cattle 
 or usurping more common than he is entitled to, or than 
 belongs to his freehold, but only to that to which the 
 common is appurtenant. *For if any person holds an 
 hundred acres of land and common be appurtenant to 
 all the land, and if he aliens this land and purchases 
 other to which common is not appurtenant, in such case 
 he cannot retain any part of the common, except by 
 title of usage beyond the term of limitation running in 
 an assise of Mortdancester. And although he has re- 
 served one acre to which common is appurtenant, yet 
 he ought to have common only in proportion to the 
 quantity of land so reserved. 
 
 2. If he will perforce have more, the lord or owner 
 of the soil should apply a remedy by impounding the 
 surcharge or excess of his cattle. And if he cannot 
 do it by himself, he may avail himself of the remedy 
 by this assise for the excess of the cattle, in like man- 
 ner as this assise would also lie between the owner of 
 
 20
 
 306 BRITTON. [I, 
 
 the soil and any one who in spite of the owner insisted 
 upon cornmoning where he had no manner of right or 
 title to claim common. 
 
 3. If the lord will not interpose, a remedy is afforded' 
 at the plaint of the commoners by our writ to the 
 sheriff of the county, to remove every outrage, and 
 bring every excess to a certain limit ; in which writ 
 our command runs thus : 
 
 ' John has complained to us that Peter has un- 
 justly surcharged his common of pasture in N., and 
 has put in more beasts than belongs to him to put ; 
 therefore we command thee, that without delay thou 
 cause the aforesaid common to be admeasured, so that 
 the same *Peter shall not have more beasts than to him 
 belongs to have according to the free tenement which 
 he holds in the same vill ; and that the aforesaid John 
 have as much common as belongs to him, and that we 
 hear no further complaint.' 
 
 4. In such case it is the sheriff's duty to take pledges 
 to prosecute, and afterwards to cause the lord of the 
 soil and all the commoners and other neighbours, as 
 well as the person against whom the plaint is brought, 
 to be summoned, to be upon the same common at a 
 certain day, to cause the common to be measured ac- 
 cording to our command ; and that the parties be then 
 prepared, the one to show his grievances, and the other 
 his right, if he chooses to appear. At the day named, 
 if the plaintiff does not come, he and his pledges shall 
 remain in mercy of the sheriff, and nothing more shall 
 be done upon that writ. If the plaintiff appears at
 
 J, *149 &.] OF PASTURE. 307 
 
 the day, although his adversary does not appear, yet 
 the admeasurement is not to be put off. 
 
 5. If the defendant comes and produces his muni- 
 ments ant explains his title, then let the sheriff cause 
 twelve good men * to be chosen, who are to swear that 
 they will lawfully do what the sheriff shall charge them 
 on our behalf. Then let them be charged to declare 
 whether he against whom the plaint is brought has any 
 freehold to which the common is appurtenant, and how 
 many beasts the commoners may common there in 
 respect of every acre, and what sort of beasts ; and 
 whether at all times in the year, or only at certain 
 times ; and whether all kinds of beasts, or only a certain 
 number ; and whether in each part and all parts, or only 
 in a certain part. 
 
 6. If the defendant claims common by title of gift, 
 then it shall further be inquired whether he was seised 
 thereof before the *soil was given to become common 
 to the other commoners, or not. And if before, let 
 him remain in his seisin ; and if after, then it must be 
 asked whether he enjoyed his seisin under that gift or 
 not, and whether the donor was himself seized of the 
 thing which he is supposed to have given ; and judg- 
 ment shall be given accordingly. And if the gift be 
 prejudicial to the commoners, the gift shall be good 
 only to the extent to which the donor might give with- 
 out prejudice to any. 
 
 1 The word prodehomme, as well as the similar expression good 
 and lauiful man, implied the possession of a freehold. Compare 
 the note in p. 267.
 
 308 BRITTOK [I, *150. 
 
 7. If he claims his seisin and title by usage in the 
 same manner as the other commoners, and can verify 
 this title, then let the pasture fall into hotchpot among 
 the commoners according to every freehold to which 
 the common is appurtenant, so that every acre be put 
 on equal terms with the others. 
 
 8. When the jurors have brought in their verdict, 
 let it be immediately put in writing, and sealed under 
 the seals of the jurors, and also entered on the roll, so 
 that if the defendant would again surcharge the pasture, 
 the plaintiff may have his remedy by the penalty pro- 
 vided in our statutes for a second surcharge of pasture. 
 
 9. With regard to a tenement held jointly among 
 parceners, and turned into common by their mutual 
 consent, if one of the parceners will surcharge this com- 
 mon with more cattle than he ought, or in any other 
 manner than according to the purport of the first agree- 
 ment, a remedy lies for the other parceners by our writ 
 of admeasurement, and also by the assise if they please, 1 
 *as is above explained concerning the owner of the 
 land. 
 
 1 That is, if they decide upon treating the wrong as a disseisin 
 of their freehold, and not merely as a surcharge of common. 
 See Brae. S29& ; Fie. 263 ( 4)r.
 
 I, *150 &.] OF QUO JURE. 309 
 
 CHAPTER XXVIII. 
 
 Of Quo jure. 
 
 1. Although some acquire common through negligence 
 of the owners of the soil by long usage and peaceable 
 seisin, and by the folly and sufferance of the owners 
 with knowledge of the fact, and although, if any one 
 who has thus enjoyed his seisin be ejected or disturbed, 
 he may recover his seisin by this assise, yet because 
 there would be a great defect in the law if the common 
 thus purchased should remain in that manner with the 
 purchaser, such title arising rather by time than by 
 right, and because the law will not deprive the owners 
 of their remedy in the right of property, therefore a 
 writ upon the right called Quo jure has been provided, 
 by which the owner shall recover in the right of prop- 
 erty that which he has lost in the right of possession. 
 
 2. Not every one however can proceed by this writ. 
 For no one is allowed to have his action by this writ 
 except the chief lord of the manor or vill in which the 
 common lies, or of the principal part thereof. It is 
 moreover necessary, in order that this writ may lie, 
 that the tenement to which the plaintiff alleges the 
 acommon to belong, and the soil of the common be of 
 different fees or of ^different baronies or of different 
 feoffments, so that the plaintiff and the person of whom 
 he complains do not hold their tenements and their
 
 310 BIUTTON. [I,* 151. 
 
 pastures in common but in severalty. For in cases 
 where there are several feoffees of one lord in the 
 same manor or vill, this writ does not take place be- 
 tween the neighbours, because between neighbours res- 
 ident in one fee such common is more properly called 
 vicinage than common ; as where one neighbour al- 
 lows another to common with him, provided the other 
 allows the same, but not otherwise. When therefore 
 any lord has lost by judgment in the possessory right, 
 and another has gained by assise of Novel Disseisin 
 by reason of his usage and seisin, yet the latter may 
 lose by this writ if he can show no other title, unless he 
 has enjoyed his seisin before the time limited in a writ 
 of right. And one chief lord or more may im plead one 
 chief lord or more, as well as one lord another, whether 
 their tenements lie in one or several vills, so long as they 
 are of diverse fees. 
 
 3. When this plea comes into court, the person im- 
 pleaded may be essoined on the first day as well as the 
 plaintiff, and shall by his essoiner have another day ; 
 at which day if he makes default an attachment shall 
 be awarded against him, as in personal pleas, because 
 no pasture is here demanded, as is sometimes demand- 
 ed in a writ of right. But when the person impleaded 
 has appeared in court, and it is specified in our court 
 what common *he claims, then from this point the same 
 process lies as in a writ of right ; and therefore if the 
 party impleaded afterwards makes default, the pasture 
 shall be taken into our hand by the little Cape. 
 
 4. At the day of plea, the parties being present, the
 
 I, *151 &.] OF QUO JURE. 311 
 
 plaintiff shall state bis declaration in this form : ' This 
 showeth to you John, who is here, that Peter and the 
 others named in the writ, who are there, (if there are 
 more than one impleaded,) wrongfully demand common 
 in his lands in N., which they ought not to have : ' he 
 should also specify the quantity of acres and number 
 of cattle, and in what seasons, according as the person 
 impleaded specifically claimed in our Court : ' and here- 
 in wrongfully, in that the same Peter or the others do 
 not pay him any rent, or perform to him any service, 
 nor does he elsewhere common with them, whereby 
 they ought to common in his lands ; and if they deny 
 it, then he tenders averment b} 7 suit and proof.' 
 
 5. Then let it be asked by the Justice what common 
 they claim, and how much, and let their answer be en- 
 rolled. And then let it be inquired of them what 
 services they perform for having such common ; or, if 
 they were enfeoffed of any tenement to which this 
 common is and then was appurtenant, let it be specified 
 what service and what tenement, and the quantity, 
 and who are tenants thereof. So likewise, where they 
 set up peaceable seisin as a title. 
 
 *6. Then let the defendants answer and defend them- 
 selves by proper words of defence in this manner : 
 * Peter (and the others named in the writ) defend the 
 wrong and force, and well show unto you that they 
 rightfully demand to common in the land of the same 
 John in N. by reason that they and their ancestors 
 and their tenants of N. have commoned there by con- 
 tinuance of peaceable seisin before the term limited ia
 
 312 BKITTOK [I, *152. 
 
 the writ of right, performing to John the following 
 service, to wit, that every astrier in the same vill was 
 used to give to the same John and his ancestors a hen 
 yearly at Christmas, whereof they put themselves on 
 God and the great assise, whether they and their people 
 of N. have better right to common in the lands of the 
 aforesaid John in N. by such service that every com- 
 moner who has his hearth in the same vill of N. ought 
 to give to the aforesaid John one hen by the year at 
 Christmas, as is aforesaid, or the same John to hold his 
 land in N. as his several, without the aforesaid Peter 
 and the others having any right to common there.' 
 
 7. There are several sorts of services which are per- 
 formed to the owner of a fee for having common in his 
 fee, as service in money, or by reaping at harvest time 
 so many days or one day ; so likewise by mowing or 
 ploughing one day or more, or by some *other compli- 
 ment of annual courtesy reduced to certainty and of a 
 certain value, so that such rent may be comprised in 
 the extent of the manor. 
 
 8. Or the defence may run thus : ' well and truly say 
 that they lawfully demand common by reason that the 
 same John hath commoned throughout all the lands of 
 the .same Peter (and the others) until within three years 
 last past, when he of his own accord maliciously with- 
 drew himself therefrom, with the intent thereby to 
 exclude the same Peter (and the others) from common- 
 ing in his lands.' And if this be verified by a jury, or 
 acknowledged by both parties, Peter and the others 
 shall retain their common, and John shall remain in
 
 I, *152 b.} OF QUO JURE. 313 
 
 mercy ; but he may nevertheless common in their lands 
 as he used to do ; and if he be disturbed thereof, he 
 shall recover by assise of novel disseisin, unless he has 
 by his own folly acknowledged in our court that he does 
 not claim any common. 
 
 9. If the persons impleaded can neither assign any 
 service or consideration of vicinage, then they must 
 show some other title, as title of purchase or long seisin 
 by prescription of time. Or they may say, that if John 
 does not now common with them, he may impute it to 
 his own negligence, or to the negligence of his an- 
 cestors, inasmuch as they used to common in their lands 
 in N. in return for having this common now in dispute; 
 but *that the ancestors of John were ejected, and suf- 
 fered the soil to be ploughed or built upon, the which 
 common he might still obtain if he had not excluded 
 himself from his action by non-claim. If the parties 
 go to a jury upon this point, the truth thereof shall be 
 inquired by these words, whether John and his men of 
 such a vill, and Peter and the others and their men of 
 the other vill, were ever used to common together in 
 such a place or not ; and according to the verdict judg- 
 ment shall be given. Other exceptions may be used, 
 some of which have been before, and others shall be 
 hereafter mentioned. 
 
 10. If the tenements are of one fee, then one neigh- 
 bour cannot hinder another from reasonable common 
 in respect of vicinage, unless by virtue of some special 
 saving, but that the person disturbed shall recover his 
 seisin by the assise.
 
 3U BRITTOK [I, *153. 
 
 11. With regard to seisin of common of pasture re- 
 covered by theassise, and afterwards lost by a Quo jure 
 in the manner pointed out in this chapter, we will 
 have it understood that seisin may also be recovered, 
 and then got back again by him who has the better 
 right by means of a Quo jure in the case of all other 
 commons, such as common rights of digging, of fishing, 
 of watering cattle, or of chase, and others which are 
 innumerable, with their appurtenances, which are free 
 ingress and egress. 
 
 *CHAPTER XXIX. 
 
 Of reasonable Estovers. 
 
 2. There is another sort of common, as of mowing, 
 lopping, digging, or cutting in another's wood, or in a 
 forest or quarry, marsh, heath, or waste, to the extent 
 of such reasonable estovers as are required for burning, 
 building, or fencing, and doing such other necessary 
 things according as one tenement shall be subject and 
 charged to another, to be enjoyed at least for term of 
 life ; and if any one be ejected or disturbed in his seisin 
 thereof, he shall have remedy by this assise, provided 
 that he can aver certain soil to be charged or appointed 
 where he is to receive his estovers, and which he can 
 cause to be viewed by the jurors of the assise. He may 
 be disturbed thereof many ways, as if the owner of the 
 wood cause the whole of the wood to be cut down to the
 
 I, -153 &.] OF REASONABLE ESTOVERS. 315 
 
 ground, so that none remains, or at least if as much as 
 is required for common is not planted again ; or if he 
 is not permitted to take any, or not sufficient, or only 
 by delivery, or only at certain times. 
 
 2. And because great dispute may be set at rest by 
 proper specification in the writings upon the first 
 contract, it is well that all estovers should be plainly 
 expressed in writings, whether they are to be taken in 
 every part, or whether in a certain place, and whether 
 at all times or only at certain times, and of what woods, 
 and in what places, and within what boundaries, and for 
 what tenement ; *so that all things be reduced to a cer- 
 tainty and to just measure, and that the one party 
 may not commit waste, nor the other hinder a measure- 
 ment. 
 
 3. But if turbary, heath, herbage, mast, wood, waste, 
 or other thing just above named, be held in common 
 between parceners or neighbours, and any one of them 
 commit excess, waste, or destruction, then let such 
 remedy be applied as is ordained in our statutes.
 
 316 BEITTON. [I, *15-k 
 
 CHAPTER XXX. 
 
 Of Nusances. 
 
 1. There still remain other kinds of disseisins, which 
 are to be remedied by this assise, and which arise from 
 tortious n usances done by one neighbour to another; 
 as when a watercourse is wrongfully diverted or 
 stopped, to the annoyance of the neighbour's freehold. 
 For it is a right which may belong to any tenement 
 that the tenant may convey water out of another's 
 soil and through another's soil to his own, at all times 
 or at certain times, and in what quantity he pleases, 
 or only to a certain quantity ; and if he is wrongfully 
 disturbed thereof in the whole or in part, then the 
 remedy by this assise is applicable. So in case any 
 one does in his own soil something injurious to the 
 free tenement of his neighbour ; as if one raise his pond 
 so high as to damage his neighbour's freehold. 
 
 *2. Of nusances, however, some are both tortious and 
 hurtful, others hurtful yet not tortious ; therefore it 
 behoves every plaintiff in this case to show what 
 damage is occasioned to him by the nusance. And if 
 the nusance be found to be both hurtful and tortious, 
 then matters are to be entirely restored to their former 
 condition. If not tortious, it must be tolerated, how- 
 ever hurtful it may be. For unto common in another's 
 soil always belong a drove-way and free ingress and
 
 I, *1545.] OF NUSANCES. 317 
 
 egress, although the drove-way may be hurtful; and 
 if the owner of the soil destroys the ingress, and stops 
 it by a wall, hedge, or ditch, so as to commit an evident 
 nusance to the commoner, this nusance is both tortious 
 and hurtful; and therefore the whole is to be removed 
 and restored to its former condition by this assise, or 
 even without writ, so as it be done immediately upon 
 the fact. 
 
 3. The like proceedings must be taken where one 
 has a right to go through another's soil, and the way 
 is stopped or straitened in such a manner that he can- 
 not go, or not so conveniently as he used. The like 
 where the free course of water through another's soil 
 is due by ancient usage or grant, if such course be 
 stopped or diverted in part or entirely. So if a pond be 
 newly made, or heightened, or lowered, whereby the 
 adjoining tenement is drowned or injured ; *in such 
 case the nusance is both tortious and hurtful, although 
 this servitude be rather created by law than established 
 by man ; and therefore all is to be restored by this 
 assise to the condition it used to be in, at the cost of 
 the offenders. So if he to whom belongs the servitude 
 of having a free chase in another's soil be disturbed 
 entirely or in part, so that he cannot enjoy his chase 
 according as he ought and used to have it. 
 
 4. And such nusance may be assigned before the 
 Justices in various manners ; as if a man be entirely 
 turned out of his way or disturbed in any manner ; or 
 if a way be diverted to the nusance of the commoner, 
 so that he is obliged to go far round, whereas he used
 
 318 BKITTON. [I, *155. 
 
 to go and drive straight ; or if the way be narrowed, 
 so that lie cannot drive a wagon or cart therein as he 
 ought and used to do, although room enough may be 
 left for horses and beasts. So where any one has done 
 an act whereby his neighbour, who has a right to com- 
 mon with him either by watering his cattle at his 
 watering-place, or by drawing water from his well, or 
 otherwise, is hindered from commoning as he ought, 
 either by disturbance of the way leading to or from 
 the water, or by disturbance of the water itself. For 
 as manifest a disseisin is committed by him who does 
 not suffer a watercourse which should move a mill to 
 be repaired where it is stopped, as by him who does 
 not allow the mill to be used. 
 
 5. A watercourse is sometimes granted to a person, 
 and sometimes to the tenement of another. A grant 
 made to a person becomes extinct upon the death of 
 the person. *But that which is purchased to my soil 
 remains perpetual ; and according to the purchase, and 
 usage, and seisin, the right is to be recovered, if the 
 owner is disseised of it ; and in this and the like cases 
 there lies a remedy by this assise, for redressing the 
 nusance at the cost of the disseisors. 
 
 6. With regard to the servitude which consists in 
 this, that it is not lawful for any neighbour to erect 
 in his own soil a mill, or weir, or sluice, or other like 
 thing, to the damage of the free tenement of his neigh- 
 bour, a remedy also lies by this assise to abate the 
 whole, if any nusance be done contrary to this obliga- 
 tion. So likewise, where a nusance is committed by
 
 I, *155 J.] OF NUSANCES. 319 
 
 pulling down or destroying that which at first was 
 lawfully raised, as by pulling down a Avail, filling up a 
 ditch, destroying a fishery, pond, bridge, or sluice, or 
 other such thing, the thing shall be restored by this 
 assise to its former condition at the cost of the offenders, 
 and thus the nusance shall be removed. 
 
 7. As one may do a wrong and a disseisin by an act, 
 in doing or undoing, so a person may commit a disseisin 
 by negligence without doing anything ; as where one 
 is bound to fence or repair or cleanse or the like, and 
 lets the matter be without doing anything, which 
 omission is prejudicial to the free tenement of his neigh- 
 bour ; and this neglect is punishable by the assise. 
 And as one *may commit a tortious nusance by not 
 doing something, so the like may be done by not per- 
 mitting something ; as where a person will not suffer 
 him to fence or to reap who is bound to do so in ease- 
 ment of the complainant's freehold ; and this wrong 
 may also be remedied by the assise. 
 
 8. There are however some nusances which sheriffs 
 are authorised to redress, as are also our hundreders, 
 and many other freemen, who have view of francpledge 
 for the common benefit ; l as in the case of a way being 
 stopped, in order that passengers may not be too long 
 deprived of their way, and in the case of several other 
 
 1 ' It should be known that the sheriff ought not to redress any 
 nuisance presented at his tourn, if it be not wrongful and in- 
 jurious to the community (a commune des gentz). For nuisance 
 done to a single person shall be redressed by a single suit and not 
 otherwise.' Note in MS. N.
 
 320 BRITTON. [I, *156. 
 
 nusances. But it is not lawful for any one to redress 
 such wrongs without our writ, except those which 
 have been done since the last view, or since the last 
 sheriff's tourn. And although nusances may be re- 
 dressed by the assise, yet it does not follow that they 
 may not be set right by another remedy, as by remov- 
 ing the nusance immediately upon the fact, or if this 
 be not done, by writ of Justicies to the sheriff, whereby 
 he has authority to redress the wrong, being made our 
 Justice to cause the wrong to be remedied ; and of 
 matters which concern the writ he is to bear record. 
 
 *CHAPTER XXXI. 
 
 Of remedy of nusances. 
 
 1. If a Justicies, or a Writ of Novel Disseisin is to be 
 obtained for a thing done in one county to the annoy- 
 ance of a tenement lying in another county, the writ 
 is always to be directed to that sheriff in whose baili- 
 wick the nusance has been committed. 
 
 2. Of ponds or of weirs raised, heightened, or demol- 
 ished, amounting to a tortious nusance, it must be 
 seen whether they are raised in the tenement of the 
 plaintiff where the soil is his own on both sides, as in a 
 river ; for in such case an assise of Novel Disseisin of 
 the freehold of the plaintiff will lie. But if it be in the 
 tenement of him of whom the plaint is made, this assise 
 of nusance is applicable. And if part is in the one soil
 
 I, *156 J.] OF NUSANCES. 321 
 
 and part in the other, as it sometimes happens in rivers 
 where the lands on either side belong to different 
 persons, then properly an assise of freehold lies for the 
 act done in the soil of the plaintiff, and an assise of 
 nusance for the rest of the nusance committed in the 
 other's soil, to remove the nusance ; and thus two assises 
 Avould take place upon a single fact. But to avoid the 
 charge of bringing two assises, the assise of nusance is 
 sufficient to redress the whole wrong. 
 
 3. Again, for a single act there may arise several dis- 
 seisins of freehold, as well as several tortious nusances ; 
 as where a person makes a ditch in another's soil 
 against the consent of the owner of the soil, he there- 
 by *disseises him of his freehold, inasmuch as he works 
 his soil against his consent, and the ditch perhaps is 
 made in such a place that the owner is either disturbed 
 of his right of driving cattle, because some way is 
 stopped, or some water is diverted from its right 
 course, or partly hindered from running. And in this 
 and the like cases a remedy lies by this assise of the 
 freehold of the plaintiff, and by this assise the whole 
 matter shall be terminated, as well for the recovery 
 of the freehold as for the removal and redress of the 
 nusances ; and since all the torts arise from a single 
 act, they may be remedied by a single judgment. 
 
 4r. A person may likewise do such an act on his own 
 soil as may injure his neighbour in several ways ; as if 
 he stops a way, although the way be his own soil, 
 whereby his neighbour cannot freely drive his cattle 
 und have free ingress and egress for his pasture as he 
 
 21
 
 322 BRITTON. [I, *15T. 
 
 used ; in this case be deprives him of his common, and 
 consequently disseises him of that, and also disseises 
 him of his way by obstructing it ; and yet tbe whole 
 may be redressed by one assise, as by assise of way 
 stopped. 
 
 5. There are moreover some cases where a person 
 mav by a single act commit several disseisins, and to 
 several people ; as if any one cause a common to be en- 
 closed, or a tenement in which one man has a free- 
 hold, another (or several others) common of pasture, 
 a third the right of digging or of cutting, a fourth the 
 right of watering his cattle, a fifth a drove-wa} r , *and 
 thus of numberless other services, in such case several 
 disseisins are committed, which may be all restored 
 to their right condition by this assise of freehold, if 
 the owner of the soil will be plaintiff; but if he will 
 not, then every one who would have and recover his 
 estate must bring his plaint each- for himself. 
 
 6. When the sheriff has received our writ of Justicies 
 of Common of pasture, reasonable estovers, common 
 of fishery, marsh, or the like, and the plaintiff has 
 found pledges of suit to the sheriff, it is the sheriff's 
 duty immediately to summon the party against whom 
 the plaint is made, and the neighbours of the hundred, 
 to be at the next county court, or at the place where 
 the nusance or the disseisin is committed, and that the 
 neighbours in the meantime go and view the nusance, 
 and the pasture, and the tenement in which the nusance 
 is done, and the tenement of the plaintiff to which it 
 is supposed to be done.
 
 I, *157 J.] OF ^USANCES. 323 
 
 7. At the day named no essoin shall be allowed to 
 the defendant, any more than to a disseisor, but the in- 
 quest shall be taken, whether the defendant come or 
 not ; and according to the verdict by view of the jurors 
 the right condition of things shall be restored as it used 
 to be, at the cost of the offender, who shall also repay 
 to the plaintiff his damages, and remain in our mercy. 
 
 *CHAPTEK XXXII. 
 
 Of Exceptions in the Assise of Nusance. 
 
 1. When this assise is brought for anv nusance, he 
 
 o */ 
 
 against whom the plaint is made may aid himself by 
 several exceptions. Thus, he may say that he did not 
 commit any nusance, or raise a wall, or heighten a pond, 
 or throw down the ditch, but that another person not 
 named in the writ did it ; and if this is verified or not 
 denied, the writ falls. Or he may say that the plaintiff 
 had not the tenement to which the nusance was done, 
 at the time when it was first done, but another then 
 held it, and none ought to complain of a wrong done to 
 any except himself. 
 
 2. Or he may say that there is no nusance, or if there 
 be any, yet the assise ought not to pass, inasmuch as 
 the nusance is not tortious, because the plaintiff has 
 no right to forbid it ; as in the instance of a mill, which 
 one neighbour may erect in his own soil without com- 
 mitting a tort to another neighbour, although the mill
 
 324: BRITTOK [I, *158. 
 
 may happen to be an annoyance to that neighbour ; 
 and the like of other nusances which are not tortious, 
 and which if any abate or remove by force, he is 
 guilty of a manifest offence against -our peace. 
 
 3. The parties having pleaded to the assise, let the 
 assise be taken, and if it pass for the plaintiff, then let 
 the sheriff be commanded to cause the nusance to be re- 
 moved, and the place restored to the condition in which 
 it used to be, *at the cost of the trespasser, whether 
 water is to be brought back into its ancient course, 
 or the course cleansed and turned, or opened, or a ditch 
 filled up or abated, or a pond lowered, or a wall or 
 hedge repaired, or way enlarged, or any other such 
 nusance set right according to its former condition. 
 And in all these cases the thing is to be restored to its 
 ancient condition, in breadth, length, height and depth ; 
 and the watercourse is not to be made more or less run- 
 ning, or lower or higher, or in any manner altered, 
 unless for the better, from what it used to be. 
 
 4. Every one should always beware of taking by his 
 own force what he ought to recover by judgment ; for 
 if he does so, and the other party recover by judgment, 
 the true owner shall hardly after succeed in uniting by 
 judgment the seisin with the property. 
 
 5. With regard to the word ' wrongfully ' contained 
 in the writ, care must be taken to see whether the nu- 
 sance be wrongful or not ; for if it be not wrongful, 
 an exception thereby accrues to the respondent. But 
 if it be both tortious and hurtful, then it is to be re- 
 moved and redressed. If it be hurtful, a distinction is
 
 I, *158 &.] OF NUSANCES. 325 
 
 to be made. For if it be hurtful to many others, 
 although it be not hurtful to the plaintiff, yet it ought 
 to be removed by the Justices ex officio. For we will 
 always, that the general advantage be regarded and 
 promoted before the advantage of a private person. 
 And if it be not tortious, although it be hurtful, the 
 plaintiff's action ceases so far as respects himself, al- 
 though it may not as it regards others. 
 
 *6. Or he may say, that although at one time it was 
 tortious to the plaintiff, yet he has now lost his action ; 
 for he of his own authority and without judgment, a 
 year or more after the nusance was done, abated it, 
 and proceeded by his own force, whereas he ought to 
 have proceeded by judgment although he might have 
 so abated it immediately after the fact, or at least as 
 soon as he knew of it. And this exception, if verified 
 or not denied, shall be allowed. 
 
 7. And whereas the words in the writ are, ' of nu- 
 sance done in the water, &c.' regard must be had 
 in what county, in what vill, or in what place, the 
 wrong is done ; and the like of a pond, weir, or other 
 nusance ; and whether the water in which the nusance 
 is done be in all or in part common ; l and whether the 
 plaintiff, or the other, has the fishery, or only a right 
 of fishing. And with reference to such considerations, 
 exceptions may be allowable. For if the water belongs 
 entirely to him against whom the plaint is made, and 
 
 1 The text is probably corrupt. The sense, following Bracton, 
 would be : whether the water is appropriated in the whole or in 
 part, or is common.
 
 320 BR1TTOJS. [I, *159. 
 
 is in the vill named in the writ, and the tenement to 
 which the nusance is done is in the same vill, or in the 
 same county, the writ is good and well purchased ; but 
 if not, the writ is abatable by reason of these words, 
 'to the nusance of his freehold in the same vill.' And 
 if the plaintiff has nothing in the water but a common 
 of fishery, and has erected a weir in the same water, 
 and the owner of the water has granted to another a 
 right of fishing in the same water, if the last purchaser 
 erect a weir to the damage of the other weir, the nu- 
 sance *shall be removed by this assise ; as where a 
 market or other franchise is granted, so that it be not 
 n nusance to another adjoining market. 1 
 
 8. In the case last mentioned, a distinction must be 
 made as to the proximity of a market, what may be 
 called adjoining and what not, and within what dis- 
 tance by road anuin may complain of a nusance done 
 by one market to another. In order to justify the re- 
 moval of a market by this assise as a nusance to another 
 adjoining market, the plaintiff must assign the nusance 
 thus : that whereas he hath his market on a certain 
 
 * A fair is a market of all manner of victual, and of all man- 
 ner of other things, as of horses and other beasts, and birds, 
 and also of a .veer de poyz, as spiceries and other such things; 
 also of gold, silver, tin, and other metals, of precious stones, 
 linen, cloth, furs, arms, and all kinds of merchandise ; and this 
 once a year. But markets in country towns may be one day in 
 the week ; in boroughs, two days ; in cities, three. But in Lon- 
 don and in a town having the same liberties as London, (en- 
 f ranchie come en Londres) every day of the week, stive Sun- 
 da v.' Note in MS. N.
 
 I, *159 &.] OF NUSANCES. 327 
 
 day of the week in such a town, he against whom the 
 plaint is made has caused another market to be pro- 
 claimed and set up on the same day in the same town, 
 or in another town within six miles and a half and the 
 third part of a mile 1 from his market. For if the plain- 
 tiff say that he has set up a market on another day, or 
 if he say that the markets do not adjoin by seven miles, 
 he shall take nothing by his plaint. For a common 
 day's journey is at least twenty miles; let therefore 
 the day be divided into three parts, and one part be 
 allowed for going to market, another for marketing, 
 and the third for returning home ; so that people may 
 do all in the day, and not be obliged to go *or return in 
 the night for fear of evil doers. If therefore any 
 market be set up adjoining to another market within 
 the third part of twenty miles, and on the same day as 
 the other market, it is a manifest nusance ; and such 
 nusance may be redressed or removed by this assise, 
 because it is both hurtful and tortious. 
 
 9. If any person feels himself aggrieved by any 
 franchise granted by us on account of a nusance ac- 
 cruing to a franchise belonging to him, and sets him- 
 self by force to disturb this franchise, or entirely to de- 
 
 1 It should be by the calculation six miles and a half and the 
 third of a half mile, and is so in the parallel passages of Bracton 
 and Fleta. The following clause is in the charter of Edward III. 
 to the city of London : ' Item Quod nulluni mercatum de cee- 
 tero teneatur infra septem leucas in circuitu civitatis prsedictae.' 
 (Liber Albus. 147.) The Latin word leuca, French lue appears 
 to have been used in England for the English mile. (See Spell- 
 man, Gloss, s. v. leuca.)
 
 328 BKITTON. [I, *159 b. 
 
 feat our act, he thereby appears to despise the law, and 
 is therefore liable to be heavily amerced. And, by way 
 of punishment for his force, the other shall retain his 
 franchise, whether it be prejudicial to him or not. For 
 none ought to interpret our grants or our will except 
 ourselves. Therefore we will that in all cases those 
 who think themselves injured by our grants, or other- 
 wise, have a suitable remedy by our orders. 
 
 10. It should be known that in all cases of disseisin r 
 where no disseisor is alive at the time when the assise 
 of a freehold, or of a common, or of reasonable estovers, 
 or of a nusance, ought to be taken, the assise shall abate,, 
 and the plaintiff shall take nothing by his writ or by 
 his plaint, but be in our mercy, and the tenant go 
 quit without day ; and remedy be given to the plaintiff 
 by writ of entry founded upon disseisin, whereby the 
 tenant will be bound to restitution, although he is not 
 punishable for the first tort, and in which the view 
 shall be made in all points as in the assise of disseisin. 
 
 11. Concerning redisseisin, enough is said in our 
 Statutes.
 
 I, *160.] OF FARMS. 329 
 
 *CHAPTER XXXIII. 
 
 Of Farms. 
 
 1. There is a kind of action somewhat resembling 
 that of disseisin, for the disturbance or spoliation of a 
 term. For the farmer has as much right to recover 
 his term and his chattel as the freeholder his freehold. 
 Yet he hath not any recovery by his assise, because it 
 never lies for a certain term except where it is awarded 
 to the termor by judgment of our court for a debt or for 
 other cause ; for in the case of such terms this assise 
 doth well lie, and the penalty of redisseisin if necessary. 
 
 2. But with regard to the first case, where the farm- 
 er has nothing of freehold, if he be ejected, the nature 
 of his term is to be regarded, whether the freehold 
 remains in his lessor or in a stranger ; for if in the 
 lessor, he may have his remedy by the following writ : 
 ' Command Peter that he render to John so much land 
 with the appurtenances in such a vill. which the same 
 Peter leased to him for a term which is not yet ex- 
 pired. 
 
 3. But if the lessor gives away the fee and the free- 
 hold, or the freehold alone, to a stranger, and he puts 
 another person in seisin and ousts the farmer without 
 making him any satisfaction for his term, and if it
 
 330 BRITTOK [I, *160 b. 
 
 happen that the lessor retains nothing by which he can 
 be attached to make him keep his ^covenant with the 
 termor, or otherwise satisfy him for his damages ; in 
 such case there is not yet any certain remedy provided 
 against the lessors ; and therefore the best advice in 
 such a case is, that the termers should keep themselves 
 in seisin as much as they can ; and if they are ejected, 
 should nevertheless do their utmost to use their seisin, 
 and hinder the purchaser from using it as much as the} 7 
 can, until satisfaction be in some way made to them. 
 
 4. There are however some cases in which a person 
 has no right to oppose his being ejected, as where the 
 chief lord ejects the termors on account of the ward- 
 ship of the lands of an infant who falls in his ward. 
 And this the farmers ought to permit, because they shall 
 have their recovery of the remainder of their term when 
 such wards had attained their full age. 
 
 5. There are some cases where the farmers are eject- 
 ed without the consent of the owners of the tenements, 
 and in such cases a recovery lies by assise of novel dis- 
 seisin at the suit of the owner of the soil, where the 
 damages however ought to be delivered by the Justices 
 ex officio to the termor. And if the owner of the soil 
 when he has thus recovered his tenement will not de- 
 liver it again to his termor, he must recover it by writ 
 of covenant : in which writ the process is by summons 
 and attachment. And whereas there are several whose 
 actions are sometimes limited to them and their heirs, 
 sometimes to their assigns, sometimes to the executors, 
 and sometimes against executors and others ; therefore
 
 1,360k] OF FARMS. 331 
 
 remedies lie by our writs formed according to the 
 particular case. 1 
 
 Here ends the Book of Disseisin ; and begins the 
 Book of Mortdancester. 
 
 1 This passage is somewhat obscure, and it will be seen that in 
 some valuable manuscripts a reading is found which gives a 
 totally different aspect to the whole sentence. The following 
 note from the margin of MS. N, appears to explain the expres- 
 sion, ' dount les acciouns sount affermez,' as referring to what 
 in our modern terminology are called the limitations introduced 
 into the lease. 
 
 ' In this part a recovery is given against the lessor where he is 
 not guilty of the ejectment ; with an example of a demise in 
 large terms (ovesques uue touche de ferme lessee largement). 
 Wherefore when the deed of lease makes mention thus, 
 habendum et tenendum prseditis B. et C. et eorum haeredibus et 
 assignatis sive legatariis : if one of the termors keep out the 
 other, or if the executors keep out the heirs, or the heirs the ex- 
 ecutors ; or if one die within the term, and his heirs or executors 
 be kept out by the other joint farmer, the recovery appears in 
 the writing which commences thus : ' Every possession ' (en la 
 escrowette qe comence issi. Chescune p'on, etc).' Note in MS. 
 N. I am unable to explain to what treatise or other writing the 
 last words refer. The same contraction is used for possession 
 elsewhere in the same handwriting. See li. iii. c. 15. s. 2. note.
 
 BOOK III. 
 
 OF INTRUSIONS AND THEIR REMEDIES. 
 
 CHAPTER I. 
 
 Of Intrusions. 
 
 i. 
 
 HAVING concluded the process whereby a plaintiff may 
 recover his seisin of freehold, in redress of a wrong 
 done to his own person, we shall now speak of the 
 method of recovering by plea the seisin of his ances- 
 tor. For when any one dies, his heir ought to suc- 
 ceed to whatsoever he died seised of in his demesne 
 as of fee, although another may have had more right 
 of property therein, unless he died as a felon convict. 
 And if he died without any heir, the chief lord shall 
 stand in the place of heir. 
 
 2. But because a person that has no right may im- 
 mediately after the death of any one abate himself 
 into the inheritance of the right heir, and keep out the 
 heir and the chief lord of the fee, and no law would 
 permit the seisin to remain in that fashion, the law 
 
 allows such intruders to be ejected while the intrusion 
 
 333
 
 334: OF INTRUSIONS. [II, *161 I. 
 
 is fresh bv the right heirs or the chief lord of the fee 
 without any wrong being done ; and the word ' fresh ' 
 shall be so understood, according as the right heir has 
 means of knowing the fact, and according as he was 
 near or far, as has been said in the Book of Disseisins. 
 *If they cannot so eject, or if the abaters have had so 
 long and so peaceable a seisin, that they ought not to 
 be ejected without judgment, then they must be aided 
 by remedy of our court. But because there are sev- 
 eral kinds of intrusions, the form of the writ must be 
 varied according to the different cases. 
 
 3. Intrusion is a wrongful abatement during the 
 vacancy of the soil, when no one is in seisin either by 
 corporeal presence or by continuance of will ; as after 
 the death of a person who died seised of the fee and 
 freehold, before the heir of the deceased has taken any 
 sort of seisin ; or after the decease of one who in like 
 manner died seised of the fee and freehold without 
 heir or as a felon, before the lord to whom the escheat 
 belongs has attained to seisin thereof; or after the 
 death of any one who died seised only of the freehold 
 by fine levied and chirograph, or by form of gift, or 
 by other kind of tenure for term of life, before he to 
 whom the land ought to revert has attained to seisin. 
 
 4. As all these cases are intrusions, the forms of the 
 writs must be varied according to the diversity of the 
 cases. Sometimes the action and the plaint belong to 
 the right heirs, and sometimes to the chief lords by 
 reason of escheat, and sometimes by reason of ward- 
 ship. And because pleas ought rather to be hastened
 
 II, *162.] BltlTTON. 335 
 
 than delayed, it is proper that such writs be provided 
 as drive the intruders to answer by the *great and little 
 Cape, rather than other kind of writs pleadable by 
 personal distresses. In this writ neither view nor 
 voucher lies, because the plea savours in part of the 
 nature of novel disseisin and of trespass by reason of 
 the abatement. 
 
 5. If the heir be of full age at the time of the death 
 of his ancestor, and holds himself in seisin of his in- 
 heritance with the deceased, and after the decease is 
 found in seisin, or if after the death of his ancestor he 
 finds the inheritance vacant, and enters before the 
 chief lord has seised it, it is lawful for such heir being 
 of full age to keep out the chief lord if he can, unless 
 he ought to hold the inheritance of us in chief, so as 
 he be always ready to perform to the lord homage 
 or relief or other service according as law and right 
 require. 
 
 6. But because all heirs are not bound to perform 
 homage to their lords, we must first understand the 
 nature of tenements, which are subject in relation 
 to the lords of the fees, to homage, and which not ; 
 and what tenements and what heirs ought to be in 
 ward of the lords, and what not ; and in respect of 
 what kind of tenements lords ought to have wardship, 
 marriage, homage, and relief, and of what not.
 
 336 BEITTOK [II, *162 b. 
 
 *CHAPTER II. 
 
 Of Wardship ; of the various tenures of land and of 
 the remedy against supposititious children. 
 
 1. There are several kinds of fees and tenures, the 
 chief whereof are those of knight service and grand 
 serjeanty, 1 which fees were provided for the defence 
 
 1 ' Note, that knight's fee is dependent on the shield (delescu); 
 and signifieth that one ought to do knight's duty (fere chivalerie) 
 for such tenements, i. e. exercise arms (hantier les armes) in 
 time of war. So Grand Serjeanty is a diminutive of the shield 
 (un deminutif del escu); and signifieth that one should do 
 esquire's duties (esquierie) for such tenure, i. e. be armed, as 
 belongeth to an esquire, to combat in time of war, or otherwise 
 serve, as the king or his lord hath need. And he shall do homage, 
 for he will do honourable service (honeste fra) in battle, and 
 fight armed with his target hanging from his neck, which is to 
 him in stead of shield. And this you may understand by the 
 name, for esquier is, as it were, escuer. But there is a difference 
 between the arms (armures) of knights and esquires. So Petty 
 Serjeanty is a diminutive of Grand Serjeanty. For knights and 
 Serjeants cannot endure in war without being served with provi- 
 sions (vitaille) and other things. Wherefore for footmen (home 
 a pie) were such tenures provided, to do such various duties as 
 belong to their service ; because a footman (poun) cannot do 
 noble acts (honeste fere); and gentlemen (gentiz gentz) hold no 
 feat honourable except prowess of arms. All the other tenures, 
 save ancient demesnes, are dependent upon the fees aforesaid.
 
 II, *162.] OF WARDSHIP. 337 
 
 of our realm, and of which the heirs are not capable 
 of defence or of bearing arms until they have accom- 
 plished the age of twenty -one years ; and it is there- 
 fore ordained that the lords of the fees shall have for 
 all the intermediate time the wardship of their fees, 
 and all the profits of the issues, and the advowsons of 
 churches, and the wardship of wards, without making 
 waste of woods, destruction of tenements, exile of vil- 
 lains, or sale of lands. 
 
 2. The same tenant may be heir to several fees, of 
 which one is of more ancient feoffment than another. 
 And whereas the first feoffor or the lord of the most 
 ancient fee has a better right to the wardship of the 
 body, and consequently to the marriage, by reason of 
 the allegiance, than another later feoffor, it sometimes 
 happens, where the last feoffor thinks that he is the 
 first and has a greater right, that he who has no right 
 deforces the wardship from him who has a better 
 right. For which wrong a remedy is provided by our 
 writ of right of ward, which is intended to be deter- 
 mined by a simple jury upon the priority of feoffment 
 
 For frank farms, fee farms, and frank almoigne, were changed 
 (translateez) from knights' fees into socages discharged of such 
 foreign service for a certain sum by the year. Ancient de- 
 meynes were and are the king's villenages ; whereof burgages 
 and sokemanries are changed for such villenages into free tenure 
 (franchise) at a certain service done to their lord. And as 
 ancient demesnes are the king's villenages, to be cultivated and 
 dealt with as may please him (pur gayner e pur fere quantque 
 lui plest), so are other kinds of villenages the demesnes of other 
 lordships.' Note in MS. N.
 
 BKITTON. [II, *163. 
 
 without battle or great assise. *So writs of rig-lit of 
 marriage are not frank tenement, but movable chat- 
 tels devisable by testament ; the manner of proceeding 
 in which writ, after the great distress awarded, is con- 
 tained in our Statutes of Westminster. 
 
 3. Nevertheless if there be any such heirs whose an- 
 cestors died seised of any land held of us in chief of the 
 ancient fees of our Crown, 1 we will that we have the 
 wardship of all the lands which ought to descend to 
 those heirs as their inheritance, with all the corn found 
 on such lands, to whose fee soever the lands belong. 
 And if the ancestors of such heirs held any land of 
 us in chief as of our escheats, or of our purchases, or 
 of our petty serjeanties, or of our socages, or of our 
 fee farms, in that case the custody of the bodies of 
 such heirs during their tender age shall remain with 
 us, and their marriages shall be ours ; 2 but each lord 
 shall have the wardship of his own fee and of the land 
 held of him, until such heirs have proved their age in 
 our court, and have recovered their inheritance out of 
 our hand. 
 
 1 The annotator in MS. N. applies the term ' homage ancestrel ' 
 to the case here supposed, and says that it was then to be pre- 
 sumed (dune deyt horn entendre) that the tenant or his ancestors 
 were enfeoffed by the king before any of his other feoffors. 
 
 2 There is some confusion in this statement ; the rule that the 
 custody of the body and the marriage belonged to the king 
 applied only where the land was held of the king, though not de 
 corona, by military service, and not to the other cases mentioned 
 in the text of tenants in socage or by petty serjeanty. Compare 
 Magna Carta, c. 27 ; and the parallel passage in Bracton.
 
 II, *lf,3 /;.] OF WARDSHIP. 330 
 
 i. As long as the lands of such heirs remain in our 
 hand, we will that they be quit as against all people 
 of suits of courts and of all other services which may 
 be demanded of them by reason of their tenements, 
 and be quit also so long as they are in our wardship, 
 of all *manner of obligations and demands which may 
 be made upon them on account of their ancestors. 
 And if any lands have been let to farm for term of 
 years, or otherwise for a less term than term of life 
 or in fee, such lands being part of the inheritance of 
 the infants, we will that the farmers be ejected from 
 the lands, saving to them their chattels found thereon, 
 so that each lord may have the wardship of his fee. 
 And when the heirs shall have accomplished their age, 
 then the farmers shall have their action by our writ of 
 covenant to recover the remainder of their terms, if 
 they cannot reco\ T er it without writ. 
 
 5. There are other kind of tenures, as petty serjeanties, 
 sokemanries, free farms, fee farms, burgages, ancient 
 demesnes, free alms, free marriages, and villenages ; to 
 which fees no wardship appertains, but only nurture 
 by him who shall be nearest of kin to the heir on the 
 mother's side when the inheritance descends on the 
 part of the father, or by the nearest of blood on the 
 father's side when the inheritance descends from the 
 mother. Such guardians are rather bailiffs than guar- 
 dians ; for if they do not render a lawful account of 
 the issues of such inheritances, at such time as the 
 heirs choose to require the same, such guardians may 
 be imprisoned and punished like other bailiffs, accord-
 
 340 BE1TTON. [II, *164. 
 
 ing to the penalty provided in our statute. *Aiul in 
 the case of such heirs no certain time is limited for 
 their full age ; but as soon as they have discretion to 
 till land, measure cloth, count money, and to manage 
 their trade, they shall be deemed of age ; and the 
 females as soon as they have attained discretion and 
 have learned the management of household affairs. 1 
 
 1 The older authorities fix fifteen years as the age of majority 
 for socage tenants, and apply the shifting test of ' discretion ' 
 only to the children of burgesses or tenants in burgage. The 
 following note may serve in some measure to show how the old 
 rule in this respect was gradually set aside, and the age of 
 twenty-one established as the period of majority for all classes. 
 ' Of heirs in socage, the common age for males is sixteen years, 
 and for females fourteen. This is so (Oyl), for having and ad- 
 ministering their inheritance ; but not for aliening it conclu- 
 sively (finalment) secundam quosdam : for they say that the writ 
 of entry dumfuit infra fetatem supposes the age of twenty -one 
 years. Others say that this age is given for knights' fees only, 
 and that they are so long in ward in regard to the administra- 
 tion for fear of the aliening and dismemberment of their inherit- 
 ance. Whence it follows, he who by law can and ought to ad- 
 minister, can by law alien ; but in socage the tenant at sixteen 
 years of age can and ought to administer, eadem ratione, to 
 alien.' Note in MS. N. 
 
 Shortly after the time of this note, the question as to the 
 power of alienation by socage tenants under twenty-one appears 
 to have been settled in the negative ; and in the following case, 
 decided 13 Edw. III., the power of aliening a burgage tenement 
 before that age is treated as resting upon special custom. ' In 
 dumfuit infra cetatem in Gloucester, the tenant pleaded that the 
 usage of the town is such, that when a man knows how to count 
 12rf. and to measure an ell of cloth, he is of age to alien his land,
 
 II, *164.] OF WARDSHIP. 341 
 
 6. Grand serjeanty is a service due from a tenement, 
 which service concerns the defence of the country ; as 
 to be Marshal or to set our host in battle, or to find a 
 man mounted and armed for the field ; l so, to be the 
 keeper of our goshawks, 2 or other like great services. 
 Petty serjeanty is a service issuing from a tenement 
 by performing to us 3 some little service, when we are 
 
 and of such age was the demandant when he leased. And be- 
 cause the tenant did not state the age in certain, so that the de- 
 mandant might answer it, it was awarded that the demandant 
 should recover.' T. 13 Ed. III. cited Vet. Nat. Br. 128; Bro. 
 Abr. Dumfuit. 3 ; Fitzh. Nat. Brev. 192 H. (note by Hale). 
 
 1 As to the question whether this is great or little serjeanty, 
 see Lit. Ten. s. 157 ; Co. Lit. 107 a. ; and Butler's Note, ib. 
 
 2 This example does not agree with the description of grand 
 serjeanty, as connected with the defence of the country. Some 
 of the manuscripts remedy this inconsistency by reading estours, 
 or estovers, so as to make the service that of guarding the king's 
 stores or provisions. Abundant examples of tenure by the 
 service of keeping hawks and falcons may be found in Blount's 
 Tenures by Beckwith, pp. 263-280. In one case at least (p. 275) 
 the service was connected with homage, which affords some 
 presumption that it was considered a grand serjeanty. (See 
 Bracton 79 ( 6); Fleta 204 (c. 16. 2); 207 ( 19); Co. Lit. 86 a). 
 And the estates held by such services were frequently of impor- 
 tance. The lords Grey of Wilton are stated by Cam den to have 
 held their manor of Acton by the service of keeping a gerfalcon 
 for the king. Camden's Britannia by Gough vol. i. p. 315. In 
 later times such tenures were classed as petty serjeanties. 
 
 3 This passage of Britton appears to be the first authority for 
 confining the term Serjeanty to tenures in capite. (See Lit. Ten. 
 s. Ir61.) In Bracton, serjeanty is a tenure by a special or ex-
 
 342 BRITTON. [II, *161. 
 
 about to take the field, amounting to half a mark or 
 less, as are the services of bringing to us in field a bag, 
 or a brooch, 1 or an arrow, or a bow without a string, 
 or a pair of spurs or gloves, or some like service. 
 
 traordinary service either to the king or any other lord. And 
 Britton in a subsequent chapter speaks of a grand serjeanty not 
 held of the king in chief. (Post, c. iv. s. 31.) The words of 
 Britton may also have given occasion to the distinction after- 
 wards adopted, by which the term ' petty serjeanty ' was con- 
 fined to ' small things belonging to war.' (Lit. Ten. s. 159.) The 
 principal examples of minor serjeanties in Bracton are connected 
 with the occupations of peace, as the serjeanty of riding with 
 the lord from one manor to another, of holding the lord's court, 
 or of carrying his precepts (portandi brevia). We may also see 
 in Britton's examples the germ of Littleton's distinction of great 
 and little serjeanty, that the one ought to be done in the tenant's 
 proper person, while the other obliges him to nothing but a mere 
 rendering or payment, as of a rent, (Lit. Ten. 153, 160.) In 
 Bracton, serjeanties are called great and little, either with ref- 
 ei-ence to their value (Brae. 87 6), or to the nature of the duty, 
 as concerning the king's army or the defence of the realm on the 
 one hand, and peaceable services or duties to inferior lords on 
 the other. (Brae. 35 6.) And it would seem to have been Brae- 
 ton's opinion, that all serjeanties in capite, whether great or 
 small, brought to the king the right of wardship. (Brae. 87 b ; 
 356,36.) The account given of great and little serjeanty and 
 their incidents in the fragment of law, printed under the title of 
 Statutum de Wardis et Releviis (Stat. temp, incer.), is similar to 
 that of Britton. 
 
 1 Thomas Carnifex tenet de domino Rege in capite manerium 
 de R. in com. Ebor. per serjantiam inveniendi domino Regi in 
 exercitu in Wallia unum equum, unum falcem, unam brochiam, 
 et unum saccum, &c. ; et praedictus Thomas in misericordia pro 
 injusta detentione.' Plac. Cor. 7 Ed. I. Ebor. cited in Blount's
 
 II, *164 &.] OF WARDSHIP. 343 
 
 7. Sokemanries are lands and tenements which are 
 not held by knight service or by grand or petty ser- 
 jeanties, but by simple services, as lands enfranchised 
 by us or our predecessors of our ancient demesnes. 
 
 8. Free farms are lands and tenements, whereof the 
 nature of the fee is changed by feoffment out of chiv- 
 alry, to be held by fixed yearly services, and in respect 
 whereof neither homage, wardship, marriage, *nor relief 
 can be demanded, nor any other service not specified 
 in the feoffment. Fee farms are lands held in fee by 
 rendering for them yearly the true value, or more or 
 less ; which rent if the feoffees cease to pay for two 
 years together, an action thereby accrues to the feoff- 
 ors, or their heirs, to demand the tenements in de- 
 mesne ; for which tenements neither homage, wardship, 
 marriage, nor relief can be demanded without specialty 
 in writing. 
 
 9. Free alms is where land is given to God, anil to 
 some persons serving God, in pure and perpetual alms, 
 for which the feoffors can demand no kind of earthly 
 service, so long as the lands remain in the hands of the 
 feoffees ; the constitution of which alms is to be duly 
 observed. Land held in alms is when land or tenement 
 is given in alms, some service being reserved thereout 
 
 Tenures, p. 49 ; Blount's Tenures by Beckwith, p. 137. See also 
 Bracton, f. 36. The word brochia, which in several services re- 
 served in tenures is connected with saccus, is conjectured to 
 mean the instrument, either a pin, or a brooch or buckle, with 
 which the bag of leather or canvas was fastened. See Blount's 
 Tenures by Beckwith, p. 110, 133; Ducange Gloss, s. v. broca, 
 brochia.
 
 3M BRITTON. [II. *165. 
 
 to the feoffor. And as it is of free alms and of land 
 given in alms so it is of land given in free marriage. 
 
 10. Burgage is a tenement in a city or borough or 
 other place privileged by us or our predecessors ; and 
 such tenements are devisable according as they are 
 derived by purchase or inheritance, agreeably to the 
 custom of the place. 
 
 11. Ancient demesnes are lands which were part of 
 the ancient manors ^annexed to our Crown, in which 
 demesnes dwell some who have been freely enfeoffed 
 by charter, and these are our free tenants, and 
 others who are free of blood and hold land of us in 
 villenage, and these are properly our sokemen, and 
 are privileged in this manner, that they are not to be 
 ousted from such tenements so long as they perform 
 the services which appertain to their tenements, nor 
 can their service be increased or altered, so that they 
 shall do any other or greater services, or in any other 
 way than as they have been used to do. And because 
 such sokemen are the tillers of our lands, we will that 
 they be not summoned any where to toil in juries or in- 
 quests, except in the manors to which they belong. 
 And because we will that they enjoy such immunity, 
 the writ of right close is provided, which is pleadable 
 before the bailiff of the manor for a wron^ done bv one 
 
 o */ 
 
 sokeman to another, that bailiff may do the plaintiff 
 right according to the custom of the manor by means 
 of simple inquests. Nevertheless we will that in pleas 
 of trespass and other personal actions, sokemen besum- 
 monableand answerable as well as others.
 
 11, -105 I.] OF WARDSHIP. 
 
 12. Villenage is a tenement of the demesne of any 
 lord, delivered to be held at his will by villain services, 
 to be cultivated for the use of the lord, and whereof 
 livery is given by the rod and not by title of deed or 
 by succession of inheritance. Neither wardship nor 
 marriage nor other real services, as homage and relief, 
 can be demanded from ancient demesne or villenages. 
 *In the same manors of our ancient demesnes there 
 are also pure villains both by blood and by tenure, who 
 may be ousted from their tenements and deprived of 
 their chattels at the will of their lords. 
 
 13. It sometimes happens that women at the time 
 of the death of their husbands feign themselves with 
 child by their husbands when in fact they are not, to 
 the great damage of the heirs; in which case we will 
 that the following remedy be ordained. When any 
 one complains of such discreet, he shall have our writ 
 to the sheriff of the district, commanding him without 
 delay to cause to come before him and before the 
 coroners in full county court the woman against whom 
 the complaint is made ; and it shall be inquired of 
 her, whether she be with child, and by whom ; and if 
 she says, by her husband who is dead, the sheriff shall 
 forthwith cause to come discreet and lawful women to 
 the number of six at least, who are to be sworn upon 
 the holy Evangelists, that they will lawfully act and 
 true presentment make of the articles wherewith they 
 shall be charged on our behalf. Then let them be 
 charged that they upon their oath search the woman 
 who pretends to be with child by handling her belly
 
 36 BRITTON. [II, *106. 
 
 and her breasts, and using all other means whereby 
 they may be certified whether she is with child or 
 not. Then they shall take her privately into a house, 
 and inquire into the truth. 
 
 *14. If the women declare that she is with child, or 
 they are in doubt whether she be or not, then the 
 sheriff shall cause the woman to be placed in our castle 
 or elsewhere in safe custody, so that no woman or 
 other person who may be suspected of any fraud have 
 access to her ; and there she shall remain at her own 
 charge till the time when she should be delivered, and 
 no woman in the meantime shall go near her, unless 
 she be of the lineage of the plaintiff. And if 
 she have not a child within forty weeks after the 
 death of her husband, or if she is not found to be 
 with child, let her be punished by imprisonment 
 and fine ; and the chief lords of the fees shall 
 forthwith take the homage of the heir without further 
 delay. 
 
 15. If she is delivered of a child within the forty 
 weeks, the child shall be admitted to the inheritance, 
 unless the next heir can prove that such child was 
 begotten by another man than her husband, as if he 
 show that the husband was impotent, or that he was 
 in prison or in another kingdom for two or three years 
 before the child was born, and remained so until after 
 the birth, without coming near his wife, or aver some 
 other apparent presumption notorious to everybody. 
 For in such cases we will not that the right heirs shall 
 be disinherited by the wife's adultery.
 
 11, *16G I.] OF WAKDS1I1P. 347 
 
 *1G. If two brothers, or other persons, offer them- 
 selves to do homage to their lord for the same inherit- 
 ance, and one of them was born in marriage and the 
 other before marriage, we will that in such case the lord 
 shall admit to the inheritance him who was born within 
 marriage, although he be younger than the other. And 
 if any heir offer himself to do homage to his lord for 
 the inheritance of his ancestor, whose father and 
 mother were divorced by holy church by reason of the 
 marriage between them being found unlawful, the lord 
 shall not upon that account fail to take the homage of 
 such children begotten in marriage, whether the mar- 
 riage was lawful or unlawful. 
 
 17. If any heir is begotten by another than the 
 husband of his mother, that is to say, at a time when 
 it may be presumed that the husband might have 
 begotten the child in matrimony, we will not that the 
 adultery of the mother be a bar to the inheritance of 
 the child. So, where a child begotten by another and 
 imposed upon the husband as his issue, is brought up 
 by the husband and owned by him as his heir, we will 
 that such children be admissible to the inheritance, if 
 it may be presumed that the husband of the mother 
 may have begotten them. But if the husbands of such 
 wives, who bring up as their lawful heirs children that 
 were begotten by others than the husbands, were 
 hindered by manifest infirmity or distance of place and 
 time, so that evident presumption and common fame, 
 as before mentioned, operates against the husbands 
 having been capable of begetting those children,
 
 BRITTON. [II, *16T. 
 
 *although they choose to bring them up in their houses 
 and to acknowledge them as their own, yet such 
 children shall not be admissible to the inheritances. 
 Neither shall those whom husbands shall find in their 
 houses begotten by others, and whom they shall straight- 
 way remove out of their houses and disown as their 
 issue. Therefore we will ' that every one in such case 
 do openly disown and straightway cause to be removed 
 such supposititious issue, as soon as he shall know of it. 
 For after he has once owned the child to be his, and 
 this fact is testified by the neighbourhood, he may 
 never after disown it. 
 
 18. And if a complaint come before us from any 
 right heir concerning a supposititious child so brought 
 up and acknowledged as heir by any husband and his 
 wife to the disherison of the right heir, we will 
 straightway command the sheriff of the county, at the 
 suit of the plaintiff, that he have the bodies of such 
 husband, and of such a one his wife, and of such child 
 whom they are bringing up, before our Justices at a 
 certain day and place to answer to such plaintiff, who 
 alleges himself to be heir to the same husband, why 
 they do in disherison of the plaintiff bring up the 
 aforesaid child and o\vn him for their issue, which he 
 is not. At which day it will be necessary for the 
 plaintiff to show some presumptions in his favour 
 to make good his charge ; which if he cannot do, 
 it shall be adjudged against him. And if by the 
 proceedings in the plea between the parties judgment 
 be given against the infant and for the plaintiff, the
 
 II, *1(57 1.] OF WARDSHIP. 349 
 
 malice of the husband and of his wife shall be punished 
 by imprisonment and fine. 
 
 *19. And if any child which is born a monster, as 
 one that has more than the proper number of members, 1 
 as three hands or three feet, or a deficiency in the 
 same, as no hands or no feet, demands the inheritance 
 of his ancestor, such children shall not be admissible 
 to any inheritance, or accounted as children, but as 
 beasts and monsters. Wherefore no one who has 
 begotten them can by such issue claim title of freehold 
 in the inheritance of his wife by virtue of the law 
 of England. 
 
 20. And whereas it sometimes happens that the heir 
 is an idiot from his birth whereby he is incapable of 
 taking care of his inheritance, we will that such heirs, 
 of whomsoever they hold, and whether they be male or 
 female, remain in our custody, with all their inherit- 
 ances, saving to ever} 7 lord all other services belonging 
 to him for lands held of him, and that they so remain 
 in our wardship as long as they continue in their idiocy. 
 But this rule shall not hold with regard to those who 
 become insane by any sickness. 
 
 21. When any one who has been in ward, and who 
 ought to hold of us in chief, has reached the age of 
 twenty-one years, if he demand the inheritance out of 
 
 1 Bracton repeats in all the passages above cited, that an in- 
 crease or decrease in the number of members not affecting the 
 human form of the offspring, as where a child is born with six 
 fingers on one hand, -or only four, does not affect its rights, See 
 Digest, li. i. tit. 6. 1. 14.
 
 350 BRITTON. [II, *168. 
 
 our hands, or if any other heir of whatever age he be 
 do the like, such persons must first, by solemn inquests 
 taken by virtue of our writs, prove their age by their 
 kindred *and by other lawful people of the neighbour- 
 hood where they were born, to wit, whether they are 
 of the full age of twenty-one years or not, and whether 
 they are next heirs. 
 
 22. And if any one proves his age by good inquest 
 sealed under the seals of the jurors and returned into 
 our Chancery to be safely kept, then we will that he 
 perform homage and swear fealty to us, and obtain 
 our writ to our escheator or to our sheriff, that he 
 cause him to have seisin of the lands which were in 
 our hand, by the death of the ancestor of such heir, in 
 his bailiwick. But if our escheator or sheriff perceives 
 that fraud has been practised upon us in the aforesaid 
 proof, he shall defer the delivery of seisin until we have 
 taken an attaint against the twelve first jurors. And 
 if they are attainted of a false oath, let them be 
 punished as shall be mentioned in the chapter concern- 
 ing attaints. And if they have been falsely accused, 
 let the accuser be punished by imprisonment and fine, 
 which may be great or small in proportion to the 
 malice of the offender. 
 
 23. When the heir has obtained the seisin of the 
 lands held of us, let him straightway have seisin of his 
 lands held of the fees of others, without making fine 
 to the lords, and without giving anything of his goods 
 except his reliefs. And when he shall recover the 
 seisin of his inheritance out of the hands of others, we
 
 II, *163 ft.] OF MAKRIAGE. 351 
 
 that his lands shall be delivered up to him stocked 
 with ploughs and other stock at least as well as the 
 lords found them. *And if the lords make waste, sale, 
 destruction, or exile in such inheritances, before the 
 heirs have proved their age, then the heirs may be 
 aided either by Our writs of trespass or of waste, or by 
 assise of novel disseisin, to be brought by themselves 
 or their friends according as is contained in our 
 statutes, in which the penalties are ordained. All 
 guardians shall however be excused from liability in 
 respect of accident by fire or water, or other like 
 waste, where they shall not be guilty of any malice. 
 
 CHAPTER III. 
 Of Marriage. 
 
 1. When any one holding of us in chief shall die, 
 leaving a male heir of full age, we will that such heir 
 may marry where he pleases without paying a fine to 
 us or to any other. But if such heir be under age, 
 then the marriage of him shall belong to us, and he 
 may not marry without our leave under pain of heavy 
 forfeiture. 
 
 2. "With respect to female heirs, where an inherit- 
 ance wholly or partly held of us in chief descends to 
 several daughters or their issue, as one heir, the eldest 
 shall do homage to us for all her parceners, and the 
 others shall do homage to the eldest. "We will never-
 
 352 BKITTON. [I, *169. 
 
 theless have the marriages of them all of whatever age 
 they may be, as often as they are to be married, so 
 that they cannot be married without our leave. This 
 prohibition was first made, lest the female heirs of our 
 land *should marry with our enemies, whose homage 
 we should then be obliged to take, if the heirs might 
 marry at their will. 
 
 3. With respect to marriages belonging to others 
 than us, we will that the lords give or offer marriages 
 to the heirs male before they have completed their 
 age. And if they have not tendered them marriage 
 while under age, then the lords shall be barred of any 
 action to demand anything for their marriage. But if 
 the lords have tendered them marriage without dis- 
 paragement, and the heirs will not consent thereto, 
 the penalty provided in our statute shall take effect. 
 Marriages shall be tendered to female heirs before 
 they be fourteen years old, otherwise the lords shall 
 be debarred of their right. 1 
 
 4. If any female heir of tender years be married 
 where she is disparaged, then we will that, if she was 
 
 1 Our author omits to state the modification of the law intro- 
 duced by the Statute of Westminster I (3 Ed. I. c. 22), by which 
 the right was granted, or confirmed, to lords to retain the ward- 
 ship of female heirs for two years after they had reached the 
 age of fourteen years, and to offer them a suitable marriage 
 within that time. If the heiress refused the marriage, the lord 
 might hold the lands till she attained twenty-one, and for a 
 further time until he had received the value of the marriage. 
 Cf. Littleton, Tenures, s. 103 ; Coke Lit. 79 a ; 2 Inst. 202 ; Lord 
 Darcie's Case, 6 Co. Rep. 71.
 
 II, *169 &.] OF MAERIAGE. 353 
 
 of fourteen years or upwards, so that she was able to 
 consent to marriage, no penalty shall be incurred ; but 
 if she was under that age, the penalty shall be this, 
 that the lord shall lose the wardship for that time, 
 and make satisfaction to the friends of the person so 
 married, and that all the profit received for the 
 marriage shall be restored to the friends and kindred 
 of the woman, to be improved for her use. "*And if she 
 be married to any of his villains, the lord who gave 
 her away shall be punished by imprisonment, until 
 due amends be made by appointment of the kindred 
 of the wife ; and such persons shall afterwards be put 
 to ransom for the malice. 
 
 5. "We forbid any lord to force an infant in his ward, 
 male or female, to take wife or husband. And when 
 any heirs, male or female, have once been married by 
 their lords ia whose wardship they were, or have once 
 made satisfaction for their marriage, if they be to 
 marry again, they shall for ever after be at their own 
 disposal, provided they hold nothing of us. So also, 
 where they have been married in the lifetime of their 
 fathers. 1 
 
 1 ' An infant under age, married in the life of his ancestor, 
 comes into ward of his lord. His wife dies. His lord tenders 
 him another wife, whom he refuses. Qu. Whether forfeiture of 
 marriage lies or not. Surely not ; for no force of law can 
 compel the heir to be bigamous.' (Note in MS. N.) This ques- 
 tion is resolved in the same way by Babington, the king's 
 attorney, in the seventh year of Henry VI, the same reason being 
 given. ' Par le prise del seconde feme efficitur bigarmis, a qe la 
 Ley ne luy coherte.' So Vet. Nat. Brev. 93. b. But if the heir 
 23
 
 3:>4 BKITTON. [II, *170. 
 
 6. When two or more lords claim the marriage of one 
 infant, it is impossible for all of them to have it, al- 
 though the ancestors of such infant may have held of 
 all by knight service; in which case let it be adjudged 
 according to the priority of the feoffments, so that the 
 marriage shall be awarded to that lord by whose an- 
 cestor the earliest feoffment shall be found to have 
 been made ; and let the deforceor be punished accord- 
 ing to the tenor of our statutes. If no priority of feoff- 
 ment is found by the inquest, as where the ancestor of 
 the infant purchased of all the lords at once at the time 
 of the Conquest, or in like cases, the judgment shall be 
 in favour of him who shall be in seisin of the infant. 
 
 *7. Where any one who has no right has seised the 
 body of the heir within age, and sold the marriage of 
 such infant to another, and he is impleaded, in such case 
 the person impleaded may vouch to warrant, so that 
 each offender may bear the penalty of his own trespass. 
 
 was married by his ancestor, infra annos nubiles, and the wife 
 died before the age of consent, the lord, it is said, should have the 
 marriage. (Y. B. 7 Hen. VI. f. 11 b.) This latter statement is 
 adopted by Fitzherbert (Nat. Brev. 143 M.), and Coke (Co. Lit. 
 79. b.) It will be remembered that bigamy (in the ancient and 
 proper sense of the word) involved the loss of the benefit of 
 clergy. (See Ante, 1. 1. c. 5. s. 5, p. 28.) On this account it was, 
 according to Lord Coke, a disparagement for a lord to marry an 
 heir to a widow, ' whereby he should by reason of the bigamie 
 have lost the benefit of his cleargie, whereby lie might save his 
 life.' (Co. Lit. 80. b.)
 
 11 *170.] OF HOMAGE. 355 
 
 CHAPTER IV. 
 
 Of Homage. 
 
 1. Homage is a legal bond, whereby a person is 
 bound and obliged to warrant, acquit, and defend his 
 tenant in his seisin against all persons for the services 
 due from the tenements which he holds of him, and 
 whereby, on the other hand, the tenant is obliged and 
 bound to return to perform to his lord the services due 
 from the tenement, which he holds of him, in service 
 or in demesne, and to keep his faith towards him in- 
 violate. And the lord is thereby as much bound to- 
 his man as the man is to his lord, reverence only ex- 
 cepted. 
 
 2. Nevertheless if any one be vouched by reason of 
 homage, and the lord offers to prove that the tenement 
 for which he is vouched was transferred from the blood 
 of the first purchaser by feoffment or some other con- 
 veyance, in such case the tenement shall be charged to 
 vouch his feoffor or the feoffor of his ancestors. 1 
 
 1 Note, that homage ancestral, and homage purchased by 
 attornment made in the king's court, give warranty and, none 
 other, without an especial clause of warranty, or what is equiv- 
 alent thereto, as the word dedi ; as, where B held of A by homage 
 before the statute [Stat. Quia Emptores, 18 Ed. I.], and after- 
 wards has given the land to another, doing the services to the
 
 356 BRITTON. [II, 170 I. 
 
 3. Homage binds two persons by their mutual con- 
 sent ; and by their mutual consent it may be released 
 and undone, but not by the assent of one of them 
 only. 
 
 *4. When any heir is desirous of being admitted to 
 the inheritance of his ancestor, and there is no doubt 
 of his being the nearest heir, we will that he in the 
 first place do homage to his lord, or offer to do it, in 
 respect that is to say, of his lands held by knight's serv- 
 ice, and that the lord receive his homage, unless there 
 is a reasonable impediment. This may arise in the 
 case of homage tendered for a fee not held by knight's 
 service or grand serjeanty, except where the custom 
 of the place is contrary ; and sometimes on account of 
 the condition of the tenants, as where the holcj. is 
 villenage. 
 
 5. On the part of the tenant again, homage is some- 
 chief lord. For all purchases are now made by dcdi, and with 
 an especial clause of warranty ; and the purchaser may thus 
 vouch the feoffor or his heirs, who are bound to warranty by 
 deed. Therefore lie who holds by specialty ought to vouch by 
 specialty, and he who holds by homage ancestral, ought to vouch 
 by the same. And note, that homage is ancesti'al from the time 
 of the Conquest, or before the limitation of the writ of right, or 
 from the great grandfather of the lord, of whom the great grand- 
 father of the tenant held, and so from heir to heir on eacli side. 
 When there are fewer degrees, the tenant cannot vouch by 
 homage without specialty.' (Note in MS. N.) Cf. ante, liv. ii. 
 cap. S. s. 8. See the later doctrine as to homage ancestral in 
 Littleton, Ten. Sect. 143-153, wit' 1 Coke's Commentary, Co. Lit, 
 100. b. See also 2 Inst. 275.
 
 II, *171.j OF HOMAGE. 357 
 
 times refused, and that rightly, as where the lands are 
 given in free alms, or are held by petty serjeanties or 
 by free socage ; and sometimes on account of the per- 
 sons of the lords, as where they have married female 
 heirs, and demand the homage in their own names, 
 whereas their wives ought to demand it ; so likewise 
 where the lords demands homage before their tenants 
 are in seisin, or before they are themselves seised of 
 their inheritance ; and when it is demanded by those 
 who have no right to demand homage, as termors and 
 others. 
 
 6. When an inheritance descends to any heir who 
 holds of us and of several others, in such case the alle- 
 giance of the seigniory shall belong to us, and we shall 
 not be barred by reason of the priority of any other 
 feoff or. But if such heir does not hold of us, the alle- 
 giance of the seigniory shall belong to that lord who 
 has the best right to his marriage. 
 
 *7. Whereas damage might accrue to us and other 
 lords of fees in course of time, if several persons, to 
 whom an. inheritance descends as to one heir, should 
 perform their services to the lords according to their 
 portions, we will that every lord, if he pleases, may 
 take the homage of all the parceners, male and female, 
 as of one heir, such homage being considered as only 
 one homage by reason of the unity of right, so that no 
 lord may lose the wardship or marriage of any tenants 
 in chivalry of his fee ; but that one of the parceners 
 may, if the lord choose, s\vear the fealty to perform to 
 him the services of the whole inheritance, so that
 
 358 BRITTON. [II, *171 I. 
 
 neither we nor any other may receive the services of 
 our fees by parcels nor by different hands ; J and in 
 such case the other parceners shall do fealty and 
 the services of their portions to their chief par- 
 ceners. 
 
 8. Although an infant under age do homage, yet we 
 will not have him take the oath of fealty until he be of 
 full age. And although it is commonly said, that the 
 act of an infant, done under age, ought not to be held 
 binding, yet we will that every man and woman ad- 
 missible to an inheritance, of what age soever they 
 be, do homage to their lords according to the statute 
 of the Great Charter ; *so that the lords shall not have 
 the profits of wardships or marriages on the one hand 
 without being bound to the risk of warranties on the 
 other, 
 
 9. All those who hold by knight's service in their 
 own names may do homage ; but persons in religion, 
 and clerks, and others holding in others' names, ought 
 not to do homage for the tenements so held, as in the 
 case of tenements which they hold in the names of 
 their churches, where the persons are named last in the 
 feoffments, as appears by the charters, which begin 
 thus : I give to God and the church of such a place, 
 and to the persons therein serving God. In these gifts 
 
 1 It appears from a subsequent section, that it was not con- 
 sidered altogether safe for a lord to avail himself of the right of 
 taking the entire service by the hands of the eldest parcener, 
 inasmuch as his title to the wardship of the descendants of the 
 junior parcener might be thereby endangered. See below, s. 23.
 
 II, *172.] OF HOMAGE. 359 
 
 therefore the feoffment is made first to God and his 
 Church and afterwards to the persons therein serving 
 God. Which persons cannot do any homage, but only 
 take the oath of fealty. And such persons do some- 
 times make a payment to their lords of double the 
 yearly value of their services at the end of every thirty 
 years, in remembrance of relief, as is the common 
 custom in Normandy. 
 
 10. He who is to do homage ought to seek out his 
 lord from reverence to him ; and when he has found 
 him let him tender his homage, with his hands clasped, 
 before good people, who, if there be occasion, may bear 
 witness thereof. If the lord refuses to take his hom- 
 age, let him seek him again fifteen days after, and ten- 
 der it to him as before, and so for three times. *And 
 if he wrongfully refuse it three times by the testimony 
 of good people, then we will that the lords be foreclosed 
 of such homage, and that the tenants may perform 
 their homage to the superior lords of the fees. And 
 when another lord has thus received his homage, we 
 will that the services be performed to him ; and yet, if 
 the tenant be impleaded concerning his tenement, the 
 first lord shall be bound to warranty. And if the next 
 superior lord, refuse his homage, let it be tendered from 
 lord to lord until it comes to us ; which homage AVC 
 may safely take. 
 
 11. If any lord fraudulently refuses or ddlays to take 
 the homage of his tenant, in order, perchance, that he 
 may not be held to warranty, the tenant in such case 
 may keep back relief and all kinds of services due from
 
 360 BRITTOK [II, *172 I. 
 
 him to the lord until he has taken his homage, so that 
 the lord shall have no seigniory over him until he has 
 received him as his tenant ; and no tenant in such case 
 shall be obliged to make satisfaction for arrears of serv- 
 ices before the homage has been received. 
 
 12. And if such tenants are not willing to transfer 
 their homage to another lord, let them be aided by our 
 writ to the sheriff of the county, *to command the lord 
 that he justly and without delay take the homage of 
 such a one who holds or claims to hold of him by 
 knight's service ; and that, if he omits doing it, he be 
 at a certain day and place before our Justices to show 
 cause why he has not done it. At which day both 
 may be essoined ; and if the lord make default, the 
 process against him shall be by great distresses, as in 
 personal pleas, until he shall appear. 
 
 13. When the lord appears and has to answer to the 
 action of the plaintiff, he may say that he refused to 
 take his homage, because he is not next heir to the an- 
 cestor whose heir he claims to be, inasmuch as he has 
 an elder brother alive beyond sea or elsewhere, who is 
 nearer heir to the same ancestor ; or because he is a 
 bastard ; or because he is the feoffee of one who has 
 committed felony, or who is appealed of a felony from 
 which judgment of death, outlawry, or abjuration may 
 ensue, and which feoffor is still living ; or by reason 
 that he or some of his ancestors entered into the tene- 
 ments which he claims to hold of him by a defective 
 entry, as by intrusion, disseisin, or by default after 
 default made in our court, or by means of one who
 
 II, *173.] OF HOMAGE. 361 
 
 held the tenements for term of life, or in villenage, or 
 at will, or for term of years, or in mortgage, or in fee 
 tail, or in ward, or by means of a bailiff, or in like 
 cases ; or because the tenement for which he tendered 
 homage, was given in marriage, and therefore he ex- 
 pects the reversion until the appearance of heirs ; or 
 because the tenant has no heir of his body, ^wherefore 
 the defendant contends that the tenant's portion ought 
 still to accrue to him if the tenant should die without 
 any heir of his own ; 1 or because this same tenant has 
 done some act by which the lord is discharged from 
 receiving his homage ; and such exceptions, if true, 
 shall be allowed. 
 
 14. Therefore it behoves every lord, before he takes 
 the homage of his tenant, to examine whether he is 
 the right heir, and concerning all the circumstances 
 named in the above exceptions, and that he know for 
 what tenement and for how much he ought to take 
 homage, and of how much the tenant is seised in de- 
 
 1 These two justifications of refusal of homage refer to the two 
 cases of tenants in frank-marriage, and co-parceners ; the feoff or 
 in the one case and the elder parcener in the other being justified 
 in refusing the homage until the third generation. See Glan. li. 
 7. c. 3 ; li. 9. c. 2 ; Brae. 21, 21 6 ; Fie. 190, 191. The reason of 
 this was, that the acceptance of homage might prejudice his 
 right of succession to the inheritance, upon the principle laid 
 down in Glanville : ' Nemo potest simul esse haeres et dominus.' 
 See Glan. li. 7. c. 1. Compare Littleton's Tenures, s. 19, 20, 
 where it appears that in later times the tenant in frank-marriage 
 was quit of all service, except fealty, until the succession of the 
 issue in the fifth degree.
 
 362 BRITTOX. [II, *173J. 
 
 mesne, and 01 bow much in service, so that no one may 
 be deceived as to tbe risk which he runs in respect of 
 warranty. 
 
 15. Again, the lord, when be comes into court, in 
 answer to the allegation of the plaintiff, that his 
 fatber held of him and did homage to him, or to his 
 fatber or other ancestor, by such certain services, may 
 say that be held nothing of him, nor did any homage 
 to him, nor ought to hold anything of him. And if he 
 offers to make this good by his champion, he shall be 
 admitted thereto if the tenant chooses to accept it ; but 
 if he chooses to put himself upon the great assise, it 
 shall be charged to sa}', whether the lord, of whom the 
 tenant complains, has the better right to bold the tene- 
 ment in demesne, or tbe tenant to hold it of him. For it 
 may well be, that tbe plaintiff or his ancestor did hom- 
 age to tbe ancestors of the same person of whom he 
 complains, and yet never had seisin of the tenement or 
 of the fee for which they performed the homage ; *or if 
 they had seisin, yet they had it by their own intrusion, 
 and not by induction of any feoffor at a time when the 
 tenement was vacant ; in which case homage may law- 
 fully be refused, on account of the right of action which 
 tbe lord has to demand the tenement in demesne by 
 reason of tbe defective entry of the tenant or bis an- 
 cestors. 
 
 16. When any tenant resists doing homage to his lord, 
 tbe lord should distrain for the arrears of the services 
 if any are due. And if the tenant causes the distress to 
 be replevied, the lord, where he cannot count of his
 
 II, *173 .] OF HOMAGE. 3G3 
 
 -own seisin, shall Lave bis remedy by writ of -customs 
 .and services. 1 And if the tenant has sworn fealty to 
 his lord, although he has done no other service to him, 
 he cannot disclaim holding of his lord in any court of 
 record, without an action immediately accruing .to the 
 lord to demand his fee in demesne. And if the lord 
 
 1 ' If the tenant refuses homage, the lord may distrain his fee 
 'for the services which are in arrear. But he should make 
 avowry in the first place for custom, as well as for service ; as 
 for homage and fealty, which are not properly services, but 
 -customs depending upon service. For homage is appurtenant to 
 escuage, and is a security for whatever belongs to knight's 
 service ; and fealty is appurtenant to rent, and is a security for 
 what belongs to socage. Wherefore the security should first be 
 demanded between lord and tenant, as between others who 
 make contracts. And the lord may make avowry of his own 
 seisin, or that of his father or grandfather, against the tenant by 
 whose hand, or that of his father or grandfather, he was seised ; 
 so, in more distant degrees, provided he can assign seisin of his 
 ancestors within the time limited in writs of novel disseisin. 
 But where he can only say that his ancestors, or himself, were 
 seised of the homage or fealty, without seisin of escuage or rent, 
 lie cannot say that he is disseised ; for rent gives seisin, and not 
 fealty, nor homage. But the lord ought not to distrain but for 
 arrears of rent or service, of which he can allege seisin as afore- 
 said ; which seisin of rent gives him continuance of possession, 
 and authority to distrain for the arrears, and for the fealty by 
 reason of the service which is in arrear. And if he cannot 
 .allege seisin as aforesaid, he cannot make avowry for homage or 
 fealty, although he have received them within the time limited, 
 nor consequently recover by assise of novel disseisin for the re- 
 plevin of him who should be his tenant, but shall be driven to 
 his writ of customs and services.' (Note in MS. N.) Compare 
 Brae. 83 b, 84 ; Fie. 211.
 
 364 BRITTON. [IT, *174. 
 
 has been seised of any service of that fee by the 
 hand of any actual tenant, although he was not 
 seised by means of him who replevied the cattle, the 
 lord shall nevertheless recover by assise of novel dis- 
 seisin. 
 
 17. When homage is to be done, it should be done 
 in this manner. The tenant should tender his homage 
 to his lord with his hands joined in token of subjection 
 and reverence ; and the lord, in token of warranty ac- 
 quittance and defence, ought to hold the tenant's 
 hands between his own. And where homage is to be 
 done to us, it ought to be done with these *words : 
 'I become your man for the fees and tenements 
 which I hold and ought to hold of you, and will bear 
 you faith of life and limb of body and chattels and of 
 every earthly honour against all who can live or die.' 
 Then the lord, whosoever he may be, whether ourself 
 or another, and whether male or female, clerk or lay, 
 old or young, ought to kiss his tenant, whether 
 he be poor or rich, ugly or handsome, in token of 
 perpetual affiance, and obligation of strict friendship. 
 And when any one has done homage to us, every 
 other lord shall be foreclosed of the allegiance of 
 seigniory. 
 
 18. Where homage is to be done to any other liege 
 lord than us, let it be done in these Avords : ' 1 become 
 your man for the fees and tenements which I hold and 
 ought to hold of you, and particularly for such a tene- 
 ment named by certain quantit}?" and certain bounds, 
 and for such fees, and will bear you faith of life and
 
 II, *174 1.} OF HOMAGE. 365 
 
 limb above 1 all people, saving the faith which I owe 
 to the king and his heirs.' The lord may thus know 
 for how much he will be bound to warrant his tenant. 
 
 19. If homage is to be performed to any other than 
 to a liege lord, the tenant shall say thus : ' I become 
 your man for the fees and tenements which I hold 
 and ought to hold of you, *and in particular for certain 
 land or a certain tenement in such a vill,' as is above- 
 said, ' and I will bear you faith above all people, sav- 
 ing the faith which I owe to the king and to my other 
 lords.' 
 
 20. When any one is to do homage for a pension ex 
 camera? as a servant may do to his lord, as his servant 
 and not as his man, the words shall be simply these : 
 ' I become your man, and will bear you faith above all 
 
 1 In Bracton and Fleta the word is contra, and a misreading 
 may be suspected. Compare the form in s. 17. But outre is 
 found in all the MSS. which have been consulted, both here and 
 in the corresponding places of ss. 19, 20. 
 
 2 Compare Bracton, 79 6 ( 6); Fie. 20 ( 18, 19); and see post, 
 s. 31. Bracton says, that no homage was done for a rent ex 
 carnerd, where no land was bound : Fleta, that it ought not to 
 be done, and if it be done, no right of wardship or marriage 
 arises. The general rule is laid down by Glanville, and repeated 
 by Bracton : ' Pro solo dominio fieri rion debent homagia alicui 
 excepto Principe/ (Glan. li. 9. c. 2 ; Brae. 79 b, 6). But it is 
 mentioned by Bracton and Fleta, that it was the common 
 practice for champions to do homage to their principals, which 
 could only be ratione dominii : and see post, s. 31. This prob- 
 ably arose from the form in which the wager of battle was 
 tendered : ' et hoc promptus sum probare per hunc liberum meum 
 hominem.' (Glanc. li. 2. c. 3.)
 
 366 BRITTOK [II, *1;T4 b., 
 
 people as long as the homage shall endure, saving the 
 faith which I owe to the king and to all my other 
 lords.' And such homages may be released by waiver 
 of the pensions and by release of the obligations. And 
 a recent change in the law has had this effect, that 
 homages taken by feoffors to the prejudice of the chief 
 lord are not binding or of any force. 1 
 
 21. As soon as homage is performed, those who are 
 bound to do any services to the lords for the tene-, 
 ments shall straightway take the oath of fealty, if to 
 us, in the following form, laying their hands upon the 
 Holy Gospels : ' Hear this, ye good people, that I, such 
 a one by name, faith will bear to our lord king Ed- 
 ward from this day forward, of life and limb, of body 
 and chattels, and of earthly honour, and the services 
 which belong to him for the fees and tenements which 
 
 I hold of him, will lawfully perform to him as they 
 > ' - c 
 
 become due to the best of my power, so help me God 
 
 and the Saints.' 
 
 22. If fealty is to be done to any other liege lord 
 than to us, then let it be done in these words : ' Hear, 
 you this, my lord John, that I, Peter, from this day,' 
 from this day forward, will bear you faith of life and 
 limb, saving my faith to the king and his heirs, and 
 the services, which belong to you for the fees and 
 
 1 This passage is important, as shewing the age of Britton. 
 The statute referred to as a ' new constitution ' can be no other 
 than the statute of Westminster the third, Quia emptorcs terra- 
 rum, passed in the 18th year of Edward I, A. D. 1290. See In- 
 troduction by the Editor.
 
 JI, *175.] OF HOMAGE. 367 
 
 tenements which I hold of you, lawfully will perform 
 to you as they become due to the best of my power, 
 so help rne God and the Saints.' 
 
 *23. If any one refuses to do fealty to his lord, the 
 lord may distrain his tenant until he does it. But no 
 parcener or his issue shall swear fealty except to the 
 eldest parcener, nor to him, unless the lord consents; 
 but it shall be in the election of the lord to take his 
 services by the hands of one or of all the parceners. 
 For otherwise he might lose the wardships and mar^ 
 riages of the other parceners, by reason of the words 
 in the writ of ward, where the plaintiff says that the 
 ancestor of the infant, in respect of whom he demands 
 wardship, was his tenant, and performed to him knight's 
 service ; which would be false, if the service was done, 
 to any other than to him. 
 
 24. From parcener to parcener fealty is sworn thus : 
 ' Hear you this, John, that I, Peter, will bear you 
 faith from this day forward, and the services due for 
 my portion of the inheritance which was Theobald's, 
 our common ancestor's, lawfully will perform to you 
 as they become due to the best of my power: so help 
 me God and the Saints.' And to the other lords thus : 
 * Hear you this, my lord John, that I, Peter, will bear 
 you faith from this day forward, and the services 
 which belong to you for the fees and tenements,' and 
 so on, as before, fealty of life and limb being never 
 sworn except to us and to liege lords. 
 
 25. For allegiance is of so high a nature, that if two 
 lords are at difference, the tenant must perform his
 
 368 BRITTON. [II, *1T5 5. 
 
 service to his liege lord against his other lord in his 
 own person, and must perform his service to his other 
 lord by attorney. And homage is so strong a bond 
 between lord and tenant, that none may without judg- 
 ment *or the mutual consent of the parties recede from 
 the homage, so long as the tenant shall keep in his 
 hands the tenements or fees, for which he is bound to 
 perform such service ; neither may the lord do any- 
 thing which touches the disherison of the tenant or 
 
 o 
 
 other great wrong to his damage in life or limb, nor 
 the tenant to the lord after performance of homage, 
 without by the very act breaking the league between 
 them and extinguishing the homage. 
 
 26. If the lord be convicted by judgment of this 
 great wrong, it shall be awarded that he be forejudged 
 of his seigniory for ever, and be otherwise punished 
 according to the offence, and that the tenant perform 
 his homage to his superior lord. And if the wrong be 
 convicted in the person of the tenant, let it be awarded 
 that he lose the tenement or fee for which he did 
 homage. 
 
 27. And we will that if any tenants disavow their 
 lord, or disclaim holding of him in a court bearing 
 record, the lord, on account of the homage and the 
 oath of fealty which the tenant has broken, shall have 
 an action to recover the tenement of such tenant of his 
 fee in demesne, by the following writ : ' Command 
 such an one that justly and without delay he surrender 
 to such an one so much land, or so many fees, with the 
 appurtenances in such a place, which the aforesaid
 
 II, *175 c. 175 d.] OF HOMAGE. 369 
 
 *such an one detains from him, and for which he did 
 homage and service to him, and which ought to be his 
 escheat, inasmuch as the aforesaid such an one, con- 
 trary to his homage and the oath of fealty which he 
 had taken to him for the same, maliciously to his dis- 
 herison disclaimed him for his lord and the holding of 
 anything of him, and that, if he omits doing it, he be 
 at a certain day and place before our Justices to show 
 why he has not done it.' 
 
 28. This writ need not be pleaded by descent, but 
 may be determined by a jury and inquest as to the fee 
 and the quantity thereof. For the lord cannot properly 
 count by descent by reason of the ancestors of the ten- 
 ant, who have been always in possession. And whether 
 he plead by descent or not, we will not have the action 
 determined by battle or great assise ; but we allow, if 
 there be occasion, that the tenant may put himself on a 
 jury after the manner of a great assise by these words, 
 to wit, whether he has most right to hold this fee, or 
 the tenement demanded, in demesne, or he who de- 
 mands it, and to whom this same tenant, or some of 
 his ancestors whose heir he is, did homage and service 
 for the same, and afterwards, contrary to his homage 
 and fealty, maliciously disclaimed him. And let judg- 
 ment be given according to the verdict. 
 
 *29. The lord has likewise the same action against 
 his tenant, where the tenant has performed to another 
 that homage which he ought to have done to him, if it 
 be found that there was fraud or malice in the act ; or 
 
 if he has done homage wrongfully to another after he 
 24
 
 370 BEITTOK [II, *175 d. 
 
 had rightfully performed homage to him. But if the 
 tenant has done it by the distress of another, or l^ 
 folly and not by malice, in such case we will that the 
 lords and the tenant be made to appear in our court, 
 and it shall be there discussed which has the better 
 right to the homage. And he who is in the right shall 
 recover, and he who is in the wrong shall be punished. 
 
 30. Whereas battle may not be joined between lord 
 and tenant during the homage, we will that if any 
 tenant would appeal his lord of felony or otherwise 
 fight with him, that he surrender to the lord the fee or 
 tenement which he holds of him, so that the homage 
 may thus be released. For homage cannot in any 
 other way be released. 
 
 31. If homage be done without the possession of 
 any fee or tenement, that homage shall be of no force. 
 Neither let homage be done for those fees or tene- 
 ments from which no wardship or marriage arises. 1 
 Neither let homage for grand serjeanty, although it 
 
 1 This rule was not of universal application, since homage was 
 sometimes due from socage tenements, where neither wardship 
 nor marriage oould be claimed. Brae. 77 b; Fie. 207 ( 17, 18). 
 The rights of wardship and marriage were inseparably connected, 
 as appears in the argument used in the following note : ' An 
 infant under age marries a wife, to whom after marriage a 
 knight's fee descends. Qu. Shall the lord have relief, or ward- 
 ship until the husband's age ? Some say wardship, because he 
 must take his homage, and he ought to have the wardship of his 
 tenant holding of him by homage. But wardship belongs where 
 marriage belongs ; and the marriage of the infant, even if he 
 were unmarried, could not belong to the lord. Therefore the 
 wardship does not belong to him.' (Note in MS. N.)
 
 II, *176.] OF HOMAGE. 371 
 
 be performed, be of any force, unless the serjeanty be 
 held of us in chief, no more than homage done for a 
 rent ex camerd, or by a champion of other servant. 
 
 *32. For homage once properly performed between 
 tenant and lord endures as long as they both live. 
 And although homage fail by the death of the lord, 
 yet it remains entire in the person of the tenant. For 
 although the tenant does homage to the heir of his lord, 
 and so from heir to heir, yet he does not thereby per- 
 form several homages, but renews several times the 
 same homage. Therefore it is sufficient for a tenant to 
 take up his land by relief once, although he does 
 homage several times. But if several homages become 
 due on the part of the tenant, as from heir to heir, we 
 will that wardship or relief follow every homage. 
 One tenant nevertheless may perform several homages 
 for different tenements at one time, or at several times, 
 to the same lord ; but when homage has been once 
 performed between lord and tenant, it ought not to be 
 done again between the same persons for the same 
 tenement. 
 
 33. Neither will we that the lord attorn the homage 
 and service of his tenant against the. will of the 
 tenant to whomsoever he pleases, and particularly 
 to the mortal enemy of the tenant, or to one who 
 has nothing whereby he can warrant him if need 
 be. But in other cases we are willing it should be 
 so far permitted, that if a tenant will not of his 
 own consent attorn to hold of another lord according 
 to the wish of the lord, the feoffment shall be made
 
 372 BR1TTON. [II, *176 I. 
 
 *by fine levied in our court between the lord and his 
 feoffee, of the service of the tenant. By virtue of 
 which fine, we will command the sheriff of the county 
 by our writ of judgment to cause the tenant to come 
 into our court to shew what tenements and what fees 
 he holds of the lord and by what services. When he 
 appears, if he says that he holds nothing, and does 
 not claim to hold anything of him, it shall be awarded 
 that he go quit, and that the lord be in mercy ; and the 
 lord may then obtain his remedy as above mentioned. 
 If the tenant say that he holds of the lord certain 
 tenements or fees, and by certain services, let it be 
 awarded that he be released from the first lord and his 
 homage transferred to the third party, to whom his 
 lord has attorned him. 
 
 34. If the tenant say that he has done homage for 
 the tenement, which homage is not yet extinct, and 
 demand judgment whether he ought to perform two 
 homages to two persons for one tenement in the life- 
 time of his first lord, from whom he does not wish to 
 separate ; in such case we will not have it awarded 
 that any do homage against his will to another than 
 him to whom he first did it in the lifetime of his first 
 lord. But if he can give no reason why he ought not 
 to do fealty to him to whom he is attorned, let it be 
 awarded that he take the oath of fealty to him ; and if 
 he will not do it of his own accord, let it be awarded 
 that the purchaser distrain the tenements or the fees 
 whereout the services should issue, until he shall do 
 fealty to him. For whosoever grants service, grants
 
 II, *m.] OF HOMAGE. 373 
 
 *a right to distrain. And when the feoffor dies, we 
 will that the homage be immediately extinct in the 
 persons of the heirs of the feoffor, and take place 
 anew in that of the purchaser according to the force 
 of the fine levied in our court. 
 
 35. And if such purchaser distrain the tenant 
 for homage or for other service, and the tenant cause 
 his distress to be replevied, and in his pleading says 
 that he wrongfully took his cattle, inasmuch he does 
 not claim to hold anything of him, yet notwithstanding 
 such replication, we will not that he cease to distrain ; 
 for in this case distress and disclaimer may well stand 
 together. 
 
 36. Nevertheless there are cases, in which such 
 tenants may avail themselves of the exception, that 
 they ought not to be attorned against their consent, as 
 where a lord, for the purpose of burdening his tenant 
 and discharging himself, wishes to attorn his tenant to 
 one who has nothing whereby he can warrant him, or 
 satisfy him for the value, if need be. In this case the 
 exception shall be allowable to every tenant, so that it 
 shall not be in the power of any lord, on account of the 
 smallness of the service, to waive his fee, in order to 
 be discharged from the risk of warranty.
 
 374 BE1TTON. [II, *177 b. 
 
 ^CHAPTER V. 
 
 Of Reliefs. 
 
 1. If any tenant is of full age at the time of the 
 death of his ancestor whose heir he is, let him immedi- 
 asely go and find his lord, and do him homage and 
 relieve his inheritance which lies dormant and unsup- 
 ported upon the death of his ancestor. Which relief is 
 reduced to a certainty among the articles of the Great 
 Charter. 
 
 2. But if an} T one has been so long in ward of his 
 lord after the death of his ancestor, that the lord has 
 taken any sort of profits of his inheritance in however 
 small a quantity on account of wardship, the heir shall 
 be quit of relief. And although homage be often 
 renewed on the death of several lords, yet no tenant 
 shall be obliged to relieve his land more than once in 
 his lifetime, and his heir another time, and so from 
 heir to heir, as above is mentioned in treating of 
 homage. 
 
 3. And although any one alien his tenements, yet 
 the lord of the fee may not demand of the feoffee any 
 relief. For we will that all purchasers shall be quit 
 of relief for their lives in respect of the tenements 
 purchased. So likewise, all those whose lords are 
 changed. And those who hold for term of life only.
 
 IT, *178.] OF BELIEFS. 375 
 
 And those, who marry women, who were some time 
 in ward of their lords, that is to say, for the inherit- 
 ances of their wives. And as we will not that any 
 under the age of twenty-one years shall give relief, so 
 '^neither will we that relief be paid to any under that 
 age, nor before the lord is seised of his inheritance, 
 nor before the lord has restored to the tenant the char- 
 ters of his inheritances, if in his hands. 
 
 4. Although the law does not require relief in the 
 case of any tenement other than a fee of chivalry or 
 grand serjeanty, yet for tenements which are not of 
 such fees, where the service is fixed, we will that 
 every tenant give to his lord in acknowledgment of 
 his seigniory the amount of one year's rent, so that 
 the lord in that year shall have as much as double his 
 tenant's rent. And in such acknowledgments the 
 same rule shall be observed as has been mentioned 
 concerning reliefs, that none make the acknowledg- 
 ment before he is of age to take the oath of fealty, 
 nor more than once, nor until his lord be of full age 
 and in seisin of his inheritance. And for tenements 
 held in fee-farm or in free alms, let nothing be given, 
 except what is specially expressed in the deed. 
 
 5. With respect to heriots, we will that no tenement, 
 nor any heir, be bound. For the gift of an heriot is a 
 payment made, on account of the death of the tenant 
 of some lord, of the best beast found in the possession of 
 the deceased, or of one not the best, according to the 
 appointment of the dying person, to the use of the lord ; 
 whch payment does not at all concern the heir or his
 
 376 BRITTOK [II, *178 b. 
 
 inheritance. Neither is it to be compared with relief ; 
 for it arises more out of favour than of right, and is more 
 paid by villains than by freemen. 
 
 *CHAPTEK VI. 
 
 Of Mortdancester. 
 
 1. It is always the duty of heirs, when they come to- 
 their inheritances by succession, to permit their lords 
 to make a simple seisin, 1 without doing any sort of 
 damage, whereby they may be recognised as lords. 
 And if such heirs are under age, and ought to hold by 
 knights' service, let the lords first take their homages,, 
 and afterwards have the wardship of their fees. If 
 the lords find their fees vacant, they may seize them 
 simply in right of seigniory, and fully in right of the 
 lawful heir, whosoever he may be. And this last 
 clause shall be a justification for all such lords delaying 
 
 1 This is the rule laid down by Bracton (f. 252 b), and con- 
 firmed by the Statute of Maryborough, c. 16. Lord Coke, in 
 commenting upon this statute, interprets ' simple seisin ' to mean 
 relief. But although in all probability it soon became the prac- 
 tice to be contented with this recognition of seigniory, the words 
 of the statute, as well as those of Bracton, appear rather to con- 
 template a formal possession of the tenement, it being expressly 
 provided that the lord was not to take or remove anything from 
 the land, or to eject the heir. It will be seen that in the next 
 sentence of the text, the simple, or formal, seisin of the lord, is 
 contrasted with the full, or beneficial, possession of the heir.
 
 II, *179.] OF MORTDANCESTER. 377 
 
 to take the homage or to yield up the inheritance to 
 any other than the lawful heir. 
 
 2. If any lord through malice or negligence shall 
 take the homage of one who is not the right heir, 
 where the lord well knows that there is a nearer heir, 
 or has reason to suspect it by another offering himself 
 as right heir, or by common report of the neighbour- 
 hood, and after receiving such homage, shall deli\ 7 er to 
 him seisin of the inheritance in demand, and the right 
 heir shall then bring an assise of Mortdancester against 
 the tenant, *and the tenant shall vouch the lord to 
 warranty by reason of the homage which the lord re- 
 ceived of him ; we will that in such case the lord shall 
 be bound to warranty and to exchange, although he 
 alleges by exception that he took his homage saving 
 every person's right, since he took the first step to 
 disinherit the right heir. But if no other had claimed 
 the inheritance, and the lord had had no suspicion that 
 another was heir, it would have been reasonable that 
 such a condition in the taking of homage should have 
 been allowable ; and in such a case we will that such 
 conditional receptions of homages shall be allowed, but 
 in no other cases. 
 
 3. If any lord be in seisin of his fee, and be doubtful 
 of several persons who demand the inheritance and offer 
 themselves as heirs, whose homage he ought to take, 
 such lord may keep himself in the inheritance, without 
 claiming anything but the seigniory, until he be certain- 
 ly informed which is the nearest heir to the deceased 
 ancestor.
 
 378 BRITTON. \_ll,*L:9l>. 
 
 4. If it happens that the elder brother and right heir 
 is out of the country at the time of the death of his 
 ancestor, and the younger brother finds the inheritance 
 vacant, and thrusts himself in, claiming the inheritance 
 as right heir ; in such case the lord mav take the 
 
 O v 
 
 homage of the younger brother, under condition that 
 seisin of the inheritance be delivered to the elder brother 
 or his '*issue whenever he shall appear to demand his 
 inheritance, whoever be then tenant. For if the lord 
 eject the younger brother after he has been seised, he 
 shall recover by assise of Novel Disseisin, to hold 
 nevertheless according to the condition aforesaid. 
 And if the lord is in seisin, and keeps out the younger 
 brother, who proceeds against the lord by assise of 
 Mortdancester, and it is found by the assise that he 
 has an elder brother, seisin shall be awarded to him, 
 under the before-mentioned condition. But if a bastard 
 keeps himself in seisin, where no heir offers himself for 
 the inheritance, in such case it is lawful for the lord to 
 eject such bastard, except where his long possession 
 through the negligence or weakness of the lord consti- 
 tutes a valid title to the freehold. 
 
 5. Therefore it behoves every lord to seize his fee 
 without delay upon the death of his tenant, if he finds 
 it vacant. And if the heir is of full age, and in seisin, 
 and will not suffer the lord to have seisin nor acknowl- 
 edge him as lord ; in such case the lord may lawfully 
 keep himself in seisin, together with the heir or the 
 person who pretends to be heir, but he must not eject 
 him ; and if he can do nothing more, he may disturb
 
 II, *iso.] OF MOKTDANCESTER. 379 
 
 such heir in the enjoyment of his seisin until *he ac- 
 knowledges him as his lord. When he shall acknowledge 
 him, let the lord forthwith take his homage and security 
 for his relief, and his oath of fealty, and that he will 
 lawfully perform to him the services which belong to 
 his inheritance ; and let his inheritance and the free 
 management thereof be then restored to him without 
 delay. 
 
 6. If the lord obtains the first seisin, the heir being 
 of full age, and the lord will not acknowledge him as 
 heir, his first remedy is by assise of Mortdancester. 
 And when any person wishes to proceed before our 
 Justices for an inheritance thus detained from him, 
 let him first find security by known pledges to prosecute 
 his plaint, if he has such pledges ready ; and if he has 
 not, we will command the sheriff of the county to take 
 security ; and if the plaintiff be so poor that he cannot 
 find security, the pledging of his own faith shall be 
 sufficient ; and such writs as his suit requires shall be 
 forthwith granted to him. And if the plaintiff is 
 under age, he need not find security to prosecute his 
 plaint, nor need any term be mentioned in his writ. 1 
 
 7. As this assise is limited between certain persons, 
 so likewise it is confined within certain degrees ; for 
 assise is to be granted *of the death of the father, 
 mother, uncle, aunt, brother, and sister, and not ascend- 
 
 1 That is, no term of limitation need be named, since, if his 
 immediate ancestor died seised, the minority of the heir is itself 
 a proof of the recent accruer of his title. See Bracton, f. 254.
 
 330 BRITTON. [II, *180 I. 
 
 ing higher, as to the grandfather, nor descending 
 lo\ver, as to the nephew ; so that neither of the death 
 of the grandfather nor of the death of the nephew- 
 alone, 1 nor in any higher or lower degree is this assise 
 ever allowed. And the more clearly to see of what 
 ancestors this assise lies, let four degrees be set down, 
 of which father and mother make one degree, uncle 
 and aunt on the father's side the second degree col- 
 lateral, uncle and aunt on the mother's side the third 
 degree collateral, and the child of the father or of the 
 mother, the son's own brother or sister, make the 
 fourth degree in the right line descending from the 
 father and the mother. And this fourth degree is 
 divisible into three, as appears by the above figure. 
 
 8. And if the son is to institute this assise against 
 any stranger in blood, being tenant, then this assise 
 may well be had of the death of his father, or of the 
 death of his mother, and not in the reverse case. 2 
 For this assise always supposes priority in the an- 
 cestor, or at least equality ; and requires to be 
 brought by the lower of the higher, ascending and 
 not descending, and also from equal to equal, as of 
 the death of the brother by the brother or by the sister, 
 and of the death of the sister on behalf the brother or 
 sister. And if any one in a more remote degree is 
 
 1 This word ' alone ' appears to have reference to the exception 
 afterwards stated concerning the case of a joint assise. See s. 10. 
 
 ' 2 This appears to imply the possibility of a father claiming as 
 heir to his son, though not by this assise. See post, 1. vi. c. 4, 
 s. 4, and note there.
 
 II, *181 I.] OF MORTDANCESTER. 381 
 
 aided by this assise, it will be rather in consequence 
 of some other person who makes the assise, than for 
 himself, as shall be afterwards mentioned. There- 
 fore we will that if any separate assise be brought to 
 trial concerning the death of any person not within 
 these two degrees, the assise shall fall, unless some 
 person is joined who may make good the assise. 
 
 9. Neither by this assise nor by any other pos- 
 sessory writ shall any proximity of blood be tried ; 
 that is to say, between demandant and tenant claim- 
 ing by the same descent ; but between all strangers 
 in blood the assise shall lie so far as it may extend. 
 And such kindred as cannot be aided by this assise 
 shall have their remedy by our writs of Cosinage, 
 of Ael, Aele, Besael, and Besaele ; which writs do 
 not determine anything of the mere right, but spring 
 out of this assise, and determine by means of juries 
 the right of possession. The assise however takes 
 place among privies of blood claiming by different de- 
 scents, as between two brothers by different fathers 
 or by different mothers. *For the brother begotten 
 by any other father is an entire stranger, so far as 
 concerns the demanding of anything upon the death 
 of the father or ancestor of the other brother, and 
 so of two brothers born of different mothers. But 
 this assise does not lie between a legitimate brother 
 and a bastard seised of the other's inheritance, be- 
 cause the proof of the proximity of blood cannot be 
 tried by any possessory plea. 
 
 10. Sometimes two or three persons in different
 
 382 BRITTON. [II, *182. 
 
 degrees are joined together, and obtain their remedy 
 by assise of Mortdancester, where the plea partakes 
 of the nature of an assise of Mortdancester and of 
 Cosinage ; as in the case of an inheritance which de- 
 scended from one stock to two persons, constituting 
 a single heir, by different lines, as to a daughter on 
 the one side, in whose person the assise of Mort- 
 dancester takes place, and to a grandson by another 
 daughter on the other side, in whose person the writ 
 of Ael lies, being in a degree to which assise of Mort- 
 dancester does not extend. In the which case we 
 will that the .recognitors of the assise come and make 
 recognisance upon their oath, whether the father (or 
 mother) of the daughter, and the grandfather (or 
 grandmother) of the grandson was seized in his de- 
 mesne, &c. And what is said .of the seisin of the 
 grandfather or grandmother as regards the grandson 
 may also be said and reputed for law concerning their 
 brothers and sisters, uncles and aunts of the daughter, 
 and cousins 1 to the grandson, since they are in the 
 same degree with the grandfather and grandmother; 
 but higher the assise of Mortdancester does not ascend. 
 *11. And because there is more speedy remedy in 
 the assise of Mortdancester than in the plea of Cos- 
 inage de Ael, we will that such plaintiffs have relief 
 by assise of Mortdancester, whether the parties wish 
 to join in one plaint or not, so that the daughter 
 shall not be able to proceed by an assise without 
 naming in the writ the grandson or his issue in what- 
 1 That is, as I understand, greal-unoles and great-aunts.
 
 II, *182 1.] OF MORTDANCESTER. 
 
 soever degree found ; nor can the grandson or his issue 
 proceed by writ of Cosinage in the lifetime of the 
 daughter who is his co-parcener and nearer by one de- 
 gree or more. For the nearest person makes the assise, 
 and draws to itself the person in the more remote 
 degree. 
 
 12. There are other writs somewhat resembling this 
 last double action, as of the death of the uncle or 
 aunt in a partible inheritance 1 ; wherein every case 
 the nephew ought to be joined in the same action 
 with the uncle and the aunt in an assise of Mort- 
 dancester, and this action is not mixed with Cosinage ; 
 and the recognitors of the assise ought to come and 
 make recognisance upon their oath whether the undo 
 or the aunt on the father's or mother's side of 
 the nephew demandant on the one part, and the 
 brother or the sister of the uncle or the aunt on the 
 side of the other demandant, whose heirs these two 
 demandants are, was seized in his or her demesne. 
 
 13. Where the inheritance is not partible, and the 
 uncle brings an assise of Mortdancester of the death 
 of his father or mother, uncle or aunt, *and the 
 nephew by the brother brings a writ of Cosinage 
 for the same tenement against the same strangers, 
 or if both have instituted an assise of Mortdancester 
 against the same stranger, that is to say, the nephew, 
 
 1 It will be remembered that in early times, by common 
 custom, tenements in socage were partible or divisible among 
 the sons. See Glan. 1. 7, c. 3 ; 1. 13, s. 11 ; Brae. 76 ; Fie. 80S
 
 384: BRITTOK [II, *183. 
 
 upon the death of his uncle or aunt, and the uncle 
 of the same nephew, upon the death of his brother 
 or sister ; in both these cases the nephew is to be 
 received to the inheritance before the uncle. And 
 if one of them either by assise or by Cosinage de- 
 mands against the other an inheritance descending 
 from the same stock ; in such case it shall be ad- 
 judged in favour of whichever party is in possession, 
 if the tenant claims by the same descent as the de- 
 mandant does, although the demandant may have 
 a better right ; and let him afterwards proceed by 
 writ of right, by which writ alone the proximity of 
 blood and the right can be tried. 
 
 14. If any stranger, as, for example, the chief lord 
 or other, deforce parceners of their inheritance, and 
 some of them are diligent in demanding their inherit- 
 ances and others negligent, it behoves the diligent, 
 whether one or more, to make his plaint and purchase 
 his writ in the names of all the parceners who have 
 not their portions, by reason of the unity of the right 
 which remains united until division ; after which any 
 party who will may sue; and those who choose to 
 sue shall have remedy by this assise of the death of 
 their common ancestor. 
 
 *15. Whereas this assise does not lie between privies 
 of blood, and in particular between parceners who take 
 as one heir, we propose, before more is said of the 
 assise, in part to explain by what actions, and by what 
 writs, and how one parcener may compel his other 
 parceners to make severance of their inheritance which
 
 II, *183 I.-] OF MOKTDANCESTER. 385 
 
 they hold in common, so that each may know his 
 several, and that each may have his reasonable portion 
 according to his due ; and if any one be deforced of 
 the whole by his parceners, how and by what writ 
 he may have redress, and by what writ he may 
 recover part if he be disseised of part. 
 
 CHAPTER VII. 
 
 Of a Mixed Action. 
 
 1. There is a kind of action which may be tried in 
 our court, called a mixed action, inasmuch it con- 
 cerns the person against whom the demand is made 
 as well as the thing demanded ; and therefore is 
 pleadable by personal distresses and by real also, as by 
 the great and little Cape. Of such kind is an action 
 to sever a thing held in common, wherein each party 
 is plaintiff and defendant, as where strangers without 
 affinity or kindred have something to be divided be- 
 tween them which they hold in *common, as in the case 
 of neighbors who proceed by action to divide some tene- 
 ment between them, so that each may have severalty. 
 Another kind of mixed action is that called in the Im- 
 perial law actio familice herciscundce, 1 which takes place 
 
 
 
 1 ' Nota hie de actione que dicitur Familia Herciscunde.' 
 (Note in MS. A 7 .) The word Jierciscundce, (from herciscere, 'to 
 divide.') which is scarcely found except in this connection, ap-
 
 3*6 BEITTOK. [II, *1S3 1. 
 
 between those who have a common inheritance to 
 divide. 
 
 2. Nevertheless two actions 1 do not arise as soon as 
 the inheritance or other thing is held between such 
 parceners in common, but from the time that any of 
 them begins to compel the others to a division. And 
 this action obtains among several parceners and co- 
 heirs, as where several brothers 2 or sisters or their issue 
 hold an inheritance in common as one heir, and wish 
 to proceed for a division, so that every one may have 
 his portion in severalty. It also lies between parcen- 
 ers who are as one heir in respect of a common tene- 
 ment which they are desirous of having divided, and 
 which is divisible by reason of the tenement. These 
 actions are called mixed, because either party is plain- 
 tiff and either defendant, that party being plaintiff who 
 first complains. 
 
 pears to have been taken for a proper name by our author or his 
 transcribers. 
 
 1 The word cestes, ' these,' appears to be wanting at the be- 
 ginning of this sentence. In Bracton it is, ' Sed hae duae ac- 
 tiones ; ' but in Fleta we find, 'Sed duae actiones.' Accepting 
 the omission, we should perhaps translate the words, ' double or 
 mixed action.' As to the relation of this work to Fleta, see the 
 Introduction by the Editor. 
 
 2 The words ' brothers or ' seem to have crept into the text by 
 mistake. The two cases intended in this and the following 
 clause are, first, where a tenement is divisible by the common 
 law among sisters ; secondly, where a tenement is divisible by 
 custom (par la resoun del tenement) among brothers. See the 
 corresponding passage in Bracton and Fleta.
 
 II, *184.] OF A MIXED ACTION. 381 
 
 3. In these two cases, if any parcener demand 
 against another his reasonable share, and the tenant 
 or tenants make default, there shall be taken into our 
 hand, out of the entire common inheritance, the por- 
 tion which belongs to the plaintiff ; *and thus the dis- 
 tress will be real and not personal. And such shall be 
 the proceeding in a plea derationabili parte, which takes 
 place where one is denied to be a parcener and is 
 deforced of his share. But where all are acknowl- 
 edged to be heirs and parceners, there should be no 
 plea de rationabili parte, although an action may arise 
 on account of one of them having less for his share 
 than he ought to have. 
 
 4:. It is proper therefore in such case, as soon as 
 the parceners have performed their homage to their 
 chief lords and are desirous to have their inheritance 
 divided between them, so that each may know his 
 several portion, that an extent should first be taken, 
 and that according to the extent partition should be 
 made between them. And if such parceners would 
 have our aid in making the division, whereby an oath 
 is taken to do it lawfully, then at the request of any 
 plaintiff parcener we will command the sheriff that he 
 do by knights and other good men of the county, in 
 the presence of the parceners, if they will be there, 
 cause an extent to be made of all the lands and tene- 
 ments which were of such an one (the common ances- 
 tor of the parceners), in such a county ; and accord- 
 ing to this extent livery shall be made of his share to 
 every parcener.
 
 388 BPJTTON. [II, *184 b. 
 
 5. The extent shall be made in this manner. 1 First 
 let an inquest be taken upon the oath of the jurors, 
 how much the buildings in the capital manor, and 
 the moats, vivaries, hays, pools and other *fisheries are 
 worth by the year, clear of outgoings. Then let the 
 true value be inquired of the gardens, curtilages, 
 dovecots, and the other issues within the court ; then 
 how many fields and closes of arable land there are 
 in the demesne, and how many acres each close con- 
 tains, and how much every acre is worth by the year ; 
 and how many acres of meadow there are in demesne, 
 and how much every acre is worth by the year ; 
 and how many acres there are of every kind of 
 pasture, and sufficient for how many beasts, and 
 what kind of beasts, and how much the pasturage 
 of one beast is worth by the year according to the 
 kind of beast. Under this article is comprised as 
 well common of pasture for sheep, hogs, and goats, 
 as pasture several for oxen, cows, and heifers, and 
 for studs of mares and colts in woods or parks, or 
 in enclosures or elsewhere in their severals. After- 
 wards let inquiry be made concerning the said woods, 
 how much each acre is worth by the year, to keep as 
 wood, or to assart and improve ; and how many acres 
 the parks and the other demesne woods contain ; then, 
 of the value of the reasonable estovers from land be- 
 longing to others, how much they are worth by the 
 
 1 This section much resembles the ancient summary, called 
 Extenta manerii, printed among the Statuta temporis incerti, in 
 the Statutes at large.
 
 II, *185.] OF A MIXED ACTION. 389 
 
 year, as wood for building, fencing, and burning, and 
 rights of fishing in another's river, and of digging 
 turfs in another's soil or in some common soil and 
 other necessaries. Afterwards let inquiry be made of 
 *honey, and of pannage, and of mast of acorns, nuts, 
 and other kinds of fruits, and of all manner of profits 
 arising from forests, woods, moors, heaths, turbaries, 
 wastes, and every other kind of commodity issuing 
 from commons, how much they are worth by the year. 
 Then, of rents issuing out of the fees belonging to the 
 manor, and of rents due to the manor for common 
 granted in the fees of the manor, and of all other 
 sorts of rents. Next, of mills, vivaries out of the 
 manor, and several fisheries, how much they are worth 
 by the year. Then, of pleas and perquisites of courts 
 and of franchises, markets, warrens, rabbit-warrens, 
 traverses, tolls, customs, and views of frank pledge, and 
 of the yearly issues of every kind of franchise : and 
 then, of the advowsons of churches, how much each 
 church is worth by the year ; and of suits of free- 
 holders, how much each suit is worth upon every de- 
 fault. It should also be inquired concerning aids, 
 presents, heriots, and every kind of annual compliment. 
 And afterwards, of villains, and of the villenages let 
 every house be separately extended, and then their 
 closes, meadows, and pastures, ; also their rents, serv- 
 ices, talliages, and customs. 
 
 6. The whole amount of the extent shall be entered 
 on a roll, together with a verdict. And for every 
 marc in the value of a church, one shilling shall be put
 
 390 BPJTTON. [II, *185 I., 1SG. 
 
 in the extent ; *so that if the church be worth one hun- 
 dred marcs a year, the yearly value shall be extended 
 at a hundred shillings ; and according to this valua- 
 tion those who do not keep the advowson of the church 
 shall be compensated in land. For an advowson is not 
 divisible ; but if it were to be sold, the reasonable 
 price would be according to the annual value of the 
 church. This extent being so made, shall be enrolled 
 and sealed under the seals of the sworn extenders. 
 
 7. If the parceners are present, they shall be asked 
 whether any of them can show cause why any person 
 who calls himself a parcener ought not to have his 
 share of the inheritance. And when it is declared how 
 many are to divide the inheritance, or where no cause 
 can be shown why all should not share, or if none of 
 the parceners appear, and the summons is proved, let 
 the inheritance be forthwith divided into so many 
 parts as there are parceners, according to the extent, 
 so that each portion may be severed from the other by 
 divisions and bounds. 
 
 8. Afterwards let the parcels be entered and specified 
 in several scrolls, and let those scrolls be delivered to 
 some layman who knows nothing of letters or of the 
 contents, and let him deliver one scroll to each par- 
 cener; and according to the lot of those scrolls let 
 each parcener take to his share. *And if any of the 
 parceners has improved or damaged the land while it 
 was in his hands, either in part or in the whole, let 
 such damage be taken into account in the extent 
 against the person who did it, and likewise let his por-
 
 II, *186.] OF A MIXED ACTION. 391 
 
 tion be increased according to the improvement he may 
 have made. 
 
 9. If the sheriff be negligent in this matter, we will 
 send our precept to the coroners of the district, or we 
 will assign by our letters patent some Justice to 
 execute it. For such delivery of shares touches very 
 nearly upon the right of property by reason of the 
 assignment of boundaries; and it is therefore neces- 
 sary that such partitions be discreetly, properly, and 
 lawfully made. 
 
 10. And whether such deliveries are made by lot, or 
 by election, the eldest parcener choosing first, and so 
 one after the other according to their ages, let the par- 
 cels be presently imbreviated on a roll, that is to say, 
 what each parcel is, and how much, and between what 
 bounds the parcel is assigned, and to what parcener by 
 name, so that all the parcels of each share be enrolled, 1 
 as well demesnes as fees and services and dowers or 
 other lands held in any manner for term of life, which 
 are to revert after the death of the tenants, and to 
 whom these lands are to revert, and to which of the 
 parceners the services of such tenants are assigned. 
 And he to whom any service is assigned towards his 
 share shall forthwith take the homage of the tenant ; 
 
 1 ' Upon a division being made, each parcener has a like title 
 to his several. This title, when the division is made by the king's 
 mandate, is a title of law, and requires to be vouched by record. 
 But division made by assent of parties requires to be averred by 
 specialty of writing, upon which issue shall be joined (le averre- 
 men-t se joyndra).' Noto in MS. N.
 
 392 BKITTON. [II, *186 b. 
 
 and he who has to await the "^reversion shall have as- 
 signed to him in the meantime a portion of some other 
 tenement according to the value of the land which is to 
 revert to him, to be held until that land falls in. 
 
 11. If any one of the parceners die after the parti- 
 tion, not having any heir of his body begotten, then 
 his share shall accrue to the other parceners or their 
 issue, to be divided between them by equal portions, 
 yet not by succession of inheritance, for none of them 
 is heir to the other, but by right of accruer. 1 
 
 12. And if any one of the parceners is not contented 
 with the partition, we will cause the proceedings and 
 the record to come before our Justices of the Bench ; 
 and the plaintiff shall there state what errors have 
 been made, and the errors shall there be redressed by 
 a new extent if need be. And after assignment of the 
 shares, either by lot or election, let seisin be executed 
 by judgment of our court. 
 
 1 ' Whereas it is said that the parceners shall have the propor- 
 tion of the one who dies by right of accruer, our companions say 
 (si dient nos compaygnons) that this is not so. For after divi- 
 sion, each parcener is inherited of his portion (est enliite de sa 
 purpartie), as if he had purchased of a stranger ; and if lie had 
 purchased of a stranger, and died without issue, his brothers or 
 sisters would be his heirs.' (Note in MS. N.) The statement in 
 the text, that the portion is taken per jus accrescendi, is derived 
 from Bracton, who however does not say that the parceners are 
 not heirs to each other.
 
 II, *187.] DIVISION OF INHERITANCES. 393 
 
 CHAPTER VIII. 
 
 Of the Division of Inheritances. 
 
 1. All inheritances do not fall into partition or hotch- 
 pot, to be divided among parceners ; as the capital 
 manors or capital castles of counties or baronies, and 
 as parks, vivaries, and advowsons of churches. *But 
 where the inheritance is divisible, the eldest brother 
 or the eldest sister by right of seniority shall have 
 the capital mansion for his share, unless this mansion 
 be the head of an earldom or of a barony, as is said 
 above, by reason of the right of the sword, which 
 does not bear division, and of the risk that the 
 strength of the realm may be diminished thereby, 
 which strength was originally constituted and divided 
 by counties and baronies. 
 
 2. But if there are several capital houses or castles 
 of earldoms or baronies, then partition may be made 
 of such castles or houses, yet so as to leave them in 
 their entirety, saving to the eldest the prerogative of 
 choosing first. For in such cases the rights of the 
 sword are preserved uninjured and undismembered, 
 which would not be if one capital mansion of an earl- 
 dom or barony was divided among several persons. 
 For if there be but one castle or one house as head 
 of the earldom or barony, that shall remain entire
 
 394 BRITTOK [II, *187 b. 
 
 to the eldest, so that a proportionate allowance be 
 made to the others according to its value, out of the 
 remainder of the inheritance. 
 
 3. If there are several capital mansions, then let the 
 eldest have the first choice after the inheritance is 
 divided into parcels, and the second next, and so of the 
 other degrees, descending from degree to degree. And 
 if there are more parceners than there are capital 
 mansions, then let that parcener who has no house 
 fallen into his share have the value of a house delivered 
 to him out of the entire inheritance. *And if there are 
 more capital houses than parceners, let the houses in 
 excess be divided among them in equal portions, unless 
 the parceners agree that some or all of them shall 
 remain entirely with one or more of the parceners, and 
 that an allowance in proportion to the value be made 
 to the others. And if there is but one capital mansion, 
 let not that be subject to partition, provided that there 
 is some other part of the inheritance out of which 
 satisfaction can be made to the parceners of the value 
 of their proportions, supposing that the inheritance is 
 partible by custom. If otherwise, it will remain en- 
 tirely to the eldest. 
 
 4. With regard to lands in ancient demesne, the 
 ancient custom of the place shall be observed ; for in 
 some places it is held as a custom that the inheritance 
 is divisible among all the children, both brothers and 
 sisters ; in some places, that the eldest son shall take 
 all and in others, that the whole shall go to the young- 
 est brother.
 
 II, *188.] DIVISION OF INHERITANCES. 395 
 
 5. Sometimes the hall of a house is divided into two 
 halves, or into several parts ; and sometimes it is sep- 
 arated from the chambers, and so of other buildings, 
 as shall be mentioned in treating of pleas of dower. 
 But advowsons of churches, servitudes of soil, and such 
 kinds of incorporeal things, are from their nature in- 
 capable of partition. Nevertheless several advowsons 
 and several rights may admit of a partition among 
 parceners, where each right remains entire. *But the 
 advowson of a single church ought not to be divided, 
 although sometimes the body of the church may have 
 become partible or divisible in ancient times by reason 
 of different baronies. For if a church is void by the 
 death of the parson, and several parceners are patrons 
 as one heir and one body, by reason of the unity of 
 their right, no one has a right to present to such church 
 without the others, until the advowson be wholly as- 
 signed to one of the parceners as part of his share, or 
 so limited by agreement between them, that one shall 
 present one turn, the second the next turn, and so 
 on in succession. And if any one before such agree- 
 ment offers to present by reason of seniority, the clerk 
 shall not be admissible to institution, so long as any of 
 the parceners oppose the presentation. 
 
 6. The like of servitudes ; for if a tenement to which 
 a servitude is due falls in partition and division 
 among parceners, the servitude is neither diminished 
 nor altered, but remains in its unity so far as regards 
 the land charged. And although a servitude is divided 
 into several parts, as regards the land to which it is due
 
 396 BRITTON. [II, *188 b. 
 
 by reason of the plurality of parceners, and although 
 there may be several entire rights thereto, yet the land 
 shall not be more burdened than it was before the 
 partition, and thus the servitude shall remain in 
 its unity. 
 
 7. There are some parts of an inheritance which will 
 not admit of a division, *and therefore ought to be 
 wholly assigned to one of the parceners, satisfaction 
 being made to the others according to the value out of 
 the remainder of the inheritance. Such are vivaries, 
 fisheries, hays, and parks, provided there are other 
 hereditaments whereout satisfaction may be made in 
 proportion to the other parceners. Nevertheless the 
 parties may come to terms, and it is allowable, if they 
 so agree, that one of them shall have one draught or 
 one fish, or one beast in the park, and the second an- 
 other, and a third the third and so on. 
 
 8. With respect to land or other hereditament be- 
 fore given with any of the parceners in frank mar- 
 riage, the usage shall be this ; that if she to whom the 
 land was given in marriage chooses to share in the in- 
 heritance whereof their common ancestor died seised 
 in demesne as of fee, she shall yield up and relinquish, 
 that which was before given her in marriage, and it 
 shall fall into hotchpot with the remainder of the in- 
 heritance, and then she shall take her share according 
 to the chance of the allotment with her other par- 
 ceners. And if she keeps to her estate in marriage for 
 her share, still it must be seen whether this is worth 
 more than belongs to her proportion or not. For if
 
 II, *189] DIVISION OF INHERITANCES. 397 
 
 more, a measurement shall be made, and this whether 
 the land came by descent from the part of the father 
 *orof the mother or by purchase, and the excess shall 
 be divided by equal portions between all the parceners. 
 The same usage shall hold where a mother in her 
 widowhood gives to any of her daughters all her es- 
 tate held in marriage. But where the feoffment is ab- 
 solute, partition never takes place. For we will that 
 such gifts by pure feoffment without mention of mar- 
 riage shall be held as valid in the case of privies of 
 blood as they would be in that of a stranger. And if 
 either father or mother or both give to one of the par- 
 ceners in marriage all their inheritance, in such case 
 the inheritance sball not fall into partition, because 
 nothing remains to be divided between the other par- 
 ceners. 
 
 9. If the eldest die in the lifetime of her father or 
 mother from whom the inheritance is to descend, the 
 second daughter shall have her prerogative of election, 
 although the deceased have left behind her a son or a 
 daughter lawfully begotten, because the eldest did not 
 survive her ancestor, whose heir she would have been. 
 We have next to deal with the action de rationabili 
 parte.
 
 398 BRITTON. [II, *189 b. 
 
 CHAPTER IX. 
 Of the Plea de Rationabili Parte. 1 
 
 1. "When any of the parceners is deforced by his 
 coparceners of all his reasonable share of the inherit- 
 ance of their common ancestor, the proper proceeding 
 is by the writ close de rationabili parte, and not by 
 assise of Mortdancester. *For this writ, and no other, 
 tries and determines the right of possession between 
 parceners and coheirs, because at the instant of the an- 
 cestor's death every parcener has the same undivided 
 right, and the mere right descended to each equally, 
 the youngest as well as the eldest, which is not the 
 case between brothers or other kindred, not being 
 parceners, where the mere right descends sooner to one 
 than to the other. 
 
 2. There are other kind of writs de rationabili partc, 
 for there is one concerning the possession, and three 
 concerning right. The possessory writ does not lie 
 between strangers, but between parceners only, and 
 it is a close writ. Its effect is to require an answer 
 as well from several to one as from one to several, 
 wherefore he deforces them of the reasonable share 
 
 1 The greater part of the materials of this chapter appears to 
 be in Fleta, though not always in the same order, and not in 
 Bracton.
 
 II, *190.] DE RATION ABILI PARTE. 399 
 
 belonging to them of the inheritance which was of 
 such an one their father, mother, brother, sister, uncle, 
 aunt, grandfather, grandmother, or cousin, who lately 
 died, as it is said. Or if any parcener be in a more 
 remote degree than another, then thus : of the in- 
 heritance which belonged to such an one, father of 
 the aforesaid Ilelice, and grandfather of the aforesaid 
 Peronel, and so on according to the degrees. 
 
 3. This writ lies only between parcener plaintiff and 
 parcener tenant, and extends as far as the time limited 
 in an assise of Novel Disseisin, and not further, by 
 reason of the word ' lately,' l which does not suppose 
 a longer time. And this writ extends to every ances- 
 tor in the ascending *line as far as the great-great- 
 grandfather, and in the descending to the nephew in 
 the lowest degree, so far as the time aforesaid will per- 
 mit. If the plaintiff in this writ count in the right, 
 the writ is abatable for the reason which shall be 
 given in the Chapter of Cosinage. 
 
 4. There are three writs of right, and these ought 
 to be open writs, and are pleadable in the court of the 
 chief lord. Two of them lie at any time either with- 
 in or after the term aforesaid ; whereof one serves to 
 recover a part of the inheritance, where a parcener is 
 seised of part, and lacks the residue of his reasonable 
 share ; and the other serves to recover the appurte- 
 nances, in all or in part, where he is deprived of them 
 by his coparceners. The third writ of right takes 
 place after the time aforesaid, to recover the whole 
 
 1 The Latin word in the writ is nuper. Fie. 315 ( 40).
 
 400 BR1TTON. [II, *190 1. 
 
 of the reasonable share ; as, where one parcener is de- 
 forceor, and the coparceners negligently omit to de- 
 mand their portions beyond the time limited in an 
 assise of Novel Disseisin; for thenceforth such 
 sleepers shall be foreclosed of their recovery by the 
 close writ de rationabili parte, so that they shall 
 never recover against the parcener deforceor but by 
 writ of right patent de rationabili parte in which 
 writ exceptions lie as in the great writ of right, but 
 not battle, nor great assise, by reason of the nearness 
 of blood. 
 
 5. When the close writ is obtained, and surety 
 found to prosecute, and the summons made and 
 proved, in case the tenant parcener *or parceners 
 make default, although the action seems to be per- 
 sonal, because no certain thing is demanded, yet no 
 attachment shall be made except by the great Cape, of 
 the bulk of the inheritance to the value of the share 
 of the plaintiff. 
 
 6. If several parceners are tenants in common or in 
 proportions, and the writ does not comprise them all, 
 the writ is thereby defective and abatable. For their 
 right is so far one, that one ought not to answer without 
 the rest on account of contribution. And if any one 
 of them do so, it shall not prejudice the other parce- 
 ners tenants. And where several parceners are plain- 
 tiffs, unless each makes his plaint separately, the writ 
 shall be abatable, because such a writ obtained on a 
 joint plaint cannot lead to a judgment that every one 
 shall have his reasonable share. In this plea there lies
 
 II, 191.] BE RATIONABILI PARTE. 401 
 
 neither view, nor voucher to warranty, nor abate- 
 ment of writ for non-tenure. 
 
 7. When the parties are come into court, the de- 
 forceor may plead that the land is not partible ; or 
 that the plaintiff hath no right in his demand because 
 he is not of the blood ; or, although he be of the blood, 
 yet he ought not to have any share, or to be a parcener 
 with the tenant for a certain reason ; or although he 
 should have been a parcener, yet he was excluded 
 from the succession by the form of gift of his ances- 
 tor. 
 
 *8. If any one who was enfeoffed of all or a part of 
 the inheritance by the common ancestor of the par- 
 ceners is impleaded thereof, he shall vouch to war- 
 ranty, not one only, but all the parceners ; and if he 
 do not, and the voucher be challenged, the tenant 
 may lose by his foolish voucher. For since there is 
 only one right, it would be unjust to make one of the 
 parceners answerable for the entire right, and to 
 oblige him to make warranty or exchange without the 
 rest of the parceners making contribution according 
 as belongs to each of them ; for else he would not re- 
 tain his reasonable share. Nevertheless where one 
 alone is vouched, and he enters into warranty with- 
 out demanding aid of his parceners, the other parce- 
 ners, if he miscarry, shall not be bound to contribute 
 to make up his share. 
 
 9. Although the issue of one of the sisters be be- 
 gotten in matrimony by a villain, yet such issue shall 
 
 not thereby be barred from recovering his reasonable 
 26
 
 402 BRIT TON. [II, *191 b. 
 
 share from his aunt. But felony, bastardy, and the 
 like general exceptions, may bar such plaintiffs from 
 recovering their proportions. 
 
 *CHAPTER X. 
 
 Of Summons, and other proceedings in the Assise of 
 Mortdancester. 
 
 1. The writ of Mortdancester being obtained accord- 
 ing to the nature of the plaint, and the patent pro- 
 duced to our Justices, we will that, inasmuch as assises 
 of Mortdancester and Novel Disseisin are pleadable 
 only in the counties where the tenements lie, our Jus- 
 tices, upon sight of our letters patent, shall set a day 
 to the plaintiff, and afterwards give notice by their 
 letter to the sheriff of the county on what day and at 
 what place in the county they will come to hear the 
 plea. Then let the plaintiff take that letter and our 
 writ close and carry them to the sheriff, and keep the 
 patent by him until the day of plea. 
 
 2. The sheriff having received our writ, and taken 
 pledges to prosecute, if required by our writ, shall 
 forthwith cause jurors to be chosen of the neighbour- 
 hood by the assent of the parties, if they agree. And 
 when they are chosen, let two freemen, terre-tenants, 
 be enjoined to summon these jurors in their proper 
 persons, as shall be mentioned in the chapter concern- 
 ing summons in the writ of right. And the sheriff 
 shall command them to summon the jurors to be at a
 
 II, *192.] OF SUMMONS. 403 
 
 certain clay and place before our Justices, to make re- 
 cognisance, whether such an one is dead, and whether 
 
 O ' * 
 
 he died since the time named in our writ seised of the 
 tenement in such a vill in his demesne as of fee, and 
 whether such plaintiff is his next heir ; and that in 
 the meantime they view the tenement, as before has 
 been mentioned among the proceedings in novel dis- 
 seisin, so that every juror *in all particulars be dis- 
 tinctly warned, fifteen days at least before his coming 
 into our court, upon what point he ought to inform 
 himself. And let the surnmoners be charged to be 
 there on the same day to prove their summons ; as is 
 the rule with all summoners upon every summons. 
 
 3. Upon the day named the parties may be essoined 
 de inalo veniendi ; and if the plaintiff is essoined on the 
 first day, and the tenant offers himself, then another 
 day shall be given to the tenant and to the plaintiff's 
 essoiner ; at which day if the plaintiff does not appear 
 to warrant his essoiner, the writ shall abate, and it 
 shall be awarded that the tenant go quit without day, 
 and that the plaintiff and his pledges to prosecute be 
 in mercy. And if the plaintiff appears, and the tenant 
 causes himself to be essoined de malo veniendi, it shall 
 be allowed, if he is of full age, and another day shall 
 be given to the plaintiff and to the tenant's essoiner ; 
 so that in this assise one essoin de malo veniendi lies 
 for each party, and no more essoins are allowed, 
 although there be several demandants or several 
 tenants where they demand or hold in common. But 
 let no essoin be allowed to any person under age for
 
 404: BR1TTON. [If, *193. 
 
 the reason which shall be given in the plea of right. 
 Neither let any essoin be allowed to the tenant though 
 of full age, as against an infant under age demandant, 
 but let the assise be presently taken by default of the 
 tenant, and no resummons take place. 
 
 4. If the tenant is under age, regard must be bad 
 bow and by what title he is in seisin ; for if he is in any 
 manner seized by title of purchase, the assise im- 
 mediately lies ; but in such case he may avail himself 
 of an essoin as well as one of full age. If by title of 
 succession, another inquiry is necessary ; for if his 
 ancestor died seised in his demesne as of fee, he shall 
 not answer, but the assise shall stand over till he is of 
 age, however he may perchance answer to the writ of 
 entry of the disseisin of his ancestor. But if he did 
 not die seised in his demesne as of fee, inasmuch as he 
 held only for term of life, the assise shall not stand 
 over. And if he died seised for a certain term under 
 a condition, or by judgment of our court, in such 
 cases it will be necessary to know whether the condition 
 is satisfied, or the judgment executed, or not ; and 
 the assise shall pass or stand over accordingly. 
 
 5. If there are several plaintiffs . who demand by . 
 this assise, or if it is brought against several tenants, 
 then it must be observed whether they are parceners 
 entitled as one heir, or strangers to each other, and 
 whether one or more are under age, or all of full age, 
 and whether they hold in *severalty or in common. 
 And although one or all or some of the plaintiffs are 
 under age, yet the assise shall not stand over respecting
 
 II, 193 &.] OF SUMMONS. 405 
 
 the tenements held in severalty, on account of their 
 nonage, except only as against the chief lord. But if 
 one or more or all of the tenants are under age, and 
 their tenements are not severed, but are held in 
 common, in such case the assise shall be stayed until 
 the youngest has attained his age and they are all of 
 full age ; and this by reason of the unity of their 
 right, which has not yet been divided, and concerning 
 which one cannot answer without the other as long 
 as the tenement is held in common. But if each knew 
 his several, then the assise should pass so far as 
 regards those that are of age. 
 
 6. Where several daughters and coheirs have brought 
 this assise against the chief lord, the assise shall pass 
 for those that are of full age, provided there is no 
 dispute respecting their marriages ; l but with regard 
 to the others who are under age, the assise shall 
 stand over till they are of age ; and when they have 
 attained their age, they shall recover their reasonable 
 shares either by this assise against the chief lord, or 
 by writ close de rationabili parte against the other 
 sisters, if they are deforceors. 
 
 7. Where a common inheritance is divided between 
 parceners, the assise need only be brought against him 
 or them who hold the tenement demanded. *But if 
 any parcener be summoned and appear in court, and 
 say that he cannot answer without his parceners by 
 
 1 That is. provided the lord lias no claim against the land for 
 the value of the marriages of the several demandants. See be- 
 fore, 1. iii. c. 15. s. 3, note.
 
 406 BR1TTON. [II, 
 
 reason of the unity of right which is between them, 
 the writ shall not thereby abate, but the other parce- 
 ners shall be summoned to come and answer, so that if 
 he against whom the plaint is made shall lose, he shall 
 not do so without all the other parceners being bound 
 to contribute. But where they hold in common, the 
 writ abates if all are not named. 
 
 8. If the tenant makes default, and the plaintiff 
 presents himself, command shall be given to the sheriff 
 that the tenant be resummoned to be before the Justices 
 another day to hear the recognisance of theassise, and 
 to answer why he was not before them on such a day 
 according as he was summoned ; after which resum- 
 
 o 
 
 raons he shall not beessoined. But whether the tenant 
 cause himself to be essoinedor otherwise make default, 
 the recognisance of the assise shall be taken by default. 
 .Neither does a resummons ever lie after an essoin, for 
 by the essoin cast for the tenant he admits the sum- 
 mons. 
 
 9. "When the tenant comes into court by resummons, 
 first let him answer for his contumacy, as to which he 
 may say that he was not summoned. And thereupon 
 let the summoners be examined, and if upon examination 
 they are found to disagree *in the circumstances of the 
 summoning, let the tenant be adjudged quit as to the 
 default, and the summoners in mercy. And if they 
 are found to agree, then he may defend the summons 
 by his law ; and for the more speedy dispatch of 
 justice, let him forthwith make his law by himself 
 alone, that he did not know of any summons before
 
 II, *194 1.] OF SUMMONS. 407 
 
 the day of the former session, and be quit of the 
 default ; and let him straightway answer to the assise. 
 But if he has been essoined, he cannot afterwards deny 
 the summons. 
 
 10. Where the tenant appears on the first day, he 
 may still put off the day of assise by excepting that 
 he had not a reasonable summons ; as where it was 
 made the day before the session of the Justices, or 
 two or three days, or less than fifteen days before. 
 This objection shall be tried by examination of the 
 summoners as above mentioned ; and if it be found 
 that he had not a reasonable summons, let the parties 
 and the assise be adjourned to another day ; at 
 which day he may be essoined. And if at that day 
 he make default, he shall not be resummoned ; for he 
 may not deny the adjournment of the Justices ; but 
 the assise, if ready, shall be taken by his default. 
 And if it is not then ready the plaintiff shall be 
 adjourned to another day, and the sheriff shall be 
 commanded that he then have the bodies of those of 
 the assise. At which day let such of the assise as 
 were not present on the former day pursuant to their 
 summons be amerced, if they cannot excuse themselves 
 respecting the summons. 
 
 *11. Although the tenant come into court on the 
 adjourned day, and is ready to answer, yet he shall 
 not be admitted thereto, for the contempt done to us 
 and our court by his neglect, except in some special 
 cases, as to produce some charter whereby the jurors 
 may be better informed, or at the least whereby he
 
 408 BRITTOK [II, *195. 
 
 may vouch some person to warrant ; in which case 
 we allow him to be admitted thereto, but not to allege 
 any reason to stay the assise, nor to plead any dilatory 
 exceptions. Neither shall he be admitted to plead 
 peremptory exceptions, wherein perhaps he might say 
 that the ancestor of whose death the assise is brought 
 held the lands only for term of his life by a fine levied 
 in our court, 1 or the exception of felony, or other 
 peremptory exceptions ; but the recognisance of the 
 assise shall be taken, and it shall be awarded that he 
 be in our mercy for his default. 
 
 12. AVhen the parties come in court without making 
 default, let the plaintiff straightway deliver his patent 
 to the Justices ; and if it is found to be sufficient war- 
 rant for them, then let them cause such writ, together 
 with the original writ close which was sent to the sher- 
 iff, to be read in audience. And then let the plaintiff 
 state his contention according to the articles of the ori- 
 ginal writ, and say how he is next heir to sucli ances- 
 tor. 
 
 13. And if the tenant has nothing to object, or if 
 he denies the demand of the plaintiff and contradicts 
 the substance of his contention * wholly or in part, let 
 the truth be inquired by twelve jurors, and not less, 
 summoned for that purpose, whereof seven at least 
 shall have been present at the view, and none of whom 
 
 1 In this point our author differs from Bnicton (f. 255), who 
 states the exceptions here mentioned as those which might l>e 
 pleaded by the tenant in default. Fleta appears to agree with 
 Britton.
 
 II, *195 &.] OF SUMMONS. 409 
 
 are removable by just challenge of the parties. They 
 shall take the oath, as hath been said before in the 
 assise of novel disseisin ; and judgment shall be given 
 according to their verdict either for the plaintiff or 
 for the tenant. 
 
 14. If the assise has been taken upon the substance, 
 and upon the points mentioned in the writ, and either 
 party feels himself aggrieved by the verdict, whether 
 the assise was taken by the tenant's default or not, 
 and whether the tenant put himself as to the point 
 in question upon the verdict of the assise or not, 
 the party aggrieved shall have his remedy by attaint. 
 The like upon a false oath by the assise touching any 
 exception, as an exception of villenage and naifty, or 
 of fine levied in our court, or of any covenant, or 
 of a judgment before given in our court concerning 
 the same tenement, or upon o.ther like manifest excep- 
 tion. But in exceptions upon which verdicts are pro- 
 nounced by way of jury and not of assise, and upon 
 which the parties have put themselves by consent, and 
 against which verdicts there is no evident presumption 
 of perjury, attaints shall not be allowed, inasmuch as 
 the jurors are by the assent of both parties made as it 
 were judicial arbitrators. 
 
 *15. If the parties agree before taking the recognisance 
 of the assise, let the accord be received and enrolled, 
 and according to the enrolment let the sheriff be com- 
 manded to deliver seisin. And \ve will that parties 
 pleading, if they pray leave to accord in our court, 
 shall have leave for that purpose, except in felonies in
 
 BRITTOK [II, *196. 
 
 which a man's life is in peril, saving to us the amerce- 
 ments to us belonging. 
 
 16. If any one by assise of Mortdancester recovers 
 seisin of his inheritance out of the hands of the lord of 
 the fee claiming wardship, where the fee is neither held 
 in chivalry nor in grand serjeanty, or if the kindred 
 of any infant in ward recover seisin of the inheritance 
 of the heir in ward on account of waste and destruc- 
 tion committed by the lord in the wardship, the pro- 
 ceedings in the plea shall be enrolled, and according 
 to the enrolment the sheriff shall be commanded to 
 deliver seisin as aforesaid. 
 
 CHAPTER XI. 
 
 Of Warranties in Assise of Mortdancester. 
 
 1. When the parties are at trial and the jurors ready, 
 if the tenant has any warrant who is bound to warrant 
 and defend him in his seisin, it is more for his advantage 
 to vouch him than at his own peril to take upon him- 
 self to defend the tenement against the plaintiff. 
 And if he vouches, then it is material whether the 
 warrant vouched be under age or of full age. If under 
 age, the tenant must produce a charter to the guardian, 
 or show that *homage was done to the infant's ancestor 
 whose heir he is, or some other clear reason why he is 
 bound to warranty ; otherwise the vouchee under age 
 shall not answer. 
 
 2. If the warrant be of full age, then there is no 
 need to show a charter or other presumption ; but
 
 II, *196.] OF WARRANTIES. 411 
 
 he may be vouched by aid of the court, or without 
 aid, as shall be said in treating of warranties in a 
 writ of right." l If it be done by aid of the court, 
 and the warrant resides in the county, let the sheriff 
 be commanded to summon him to appear before the 
 same Justices on another day, to warrant according as 
 he shall be vouched, or to refuse. And if the warrant 
 has land elsewhere, and none in that county, let him 
 be summoned by our writ of judgment. 1 
 
 3. If the tenant vouches to warrant separately, 
 where he ought to vouch more than one together, or 
 many where he ought to vouch only one, and the 
 warrants demand judgment of the bad voucher, in 
 such case the tenant shall fail in his voucher, as he 
 would have done in case of a writ ill purchased. 
 
 4. "When the tenant has vouched to warrant any one 
 who comes into court and warrants him, or several 
 tenants in common as one heir, who warrant him, and 
 these vouch some other, and so on from warrant to 
 warrant, if any one of the whole number makes 
 
 1 The chapter here referred to is wanting in all the copies. See 
 before, vol. i. p. 107, note ; and see the last chapter of Britton, 
 s. 5, where reference is made to the same chapter alluded to 
 above. As to the incompleteness of the work, see the Introduc- 
 tion by the Editor. 
 
 2 If the vouchee had land in the county, he was summoned 
 without writ by precept of the Justices to the sheriff ; if his land 
 was in another county, it was necessary to obtain a writ out of 
 the Chancery. See the parallel passages of Bracton and Fleta. 
 The expression ' writ of judgment ' is in Fleta, not in Bracton. 
 The form of the judicial writ is in Reg. Brev. Judic. 46 b.
 
 412 BIUTTOtf. [II, *197. 
 
 default, the assise sball be taken by his default, as if 
 all had made default, whether they be any of them 
 under age or not. *And what is said concerning 
 one tenant, shall be observed where there are sev- 
 eral. 
 
 5. If the warrant appears at the day for which he is 
 summoned, and the plaintiff also, but not the tenant, 
 let the assise be forthwith taken by the default of the 
 tenant, if the jurors are present; and if not, let an- 
 other day be given to the parties. And if the warrant 
 has waited until the fourth day, let it be awarded that 
 he go quit of his warranty without day, and that the 
 assise be taken by the default of the tenant, as above 
 said. The reason why the plaintiff shall not straight- 
 way recover his demand without recognisance of the 
 assise, is because all the points of his writ or some of them 
 may be false ; for although the tenement demanded 
 ceases presumptively to be the tenant's by reason of 
 his default, yet still it is necessary that our court be 
 informed of the right of the plaintiff ; for if the assise 
 say that the plaintiff hath no right in his demand, 
 there is no reason that he should recover, inasmuch 
 as he cannot prove the points of his case. 
 
 6. If the tenant appears and the warrants also, and 
 the plaintiff makes default on the fourth day, let it be 
 awarded that the tenant go quit of that writ without 
 day, and the warrants of their warranty, and that the 
 plaintiff and his pledges of suit remain in mercy in our 
 court. 
 
 7. If the tenant and the plaintiff appear in court,,
 
 II, *197.] OF WAKKANTIES. 413 
 
 and *the warrant makes default, let the assise be taken 
 by the default of the warrant, but let no caption of 
 land be awarded against the warrant until it be known 
 by the assise whether the tenant ought to retain the 
 land or to lose it. For if he ought to retain it, then 
 there will be no need of proceeding to the plea of 
 warranty. 
 
 8. And if the taking of the assise is delayed by any 
 chance to another day, and the warrant comes on that 
 day and is ready to warrant, yet he shall not be ad- 
 mitted thereto, except with a view to making the ex- 
 changes, 1 - before the assise is taken in form of assise ; 
 and this for three reasons; first, because he had no 
 day given him to warrant ; secondly, because he lost 
 the benefit of his exceptions and all his defences by the 
 default which he made on the former day ; and 
 thirdly, because there is no need of his being admitted 
 thereto before the necessity of it is known, as hath 
 been said above. Hence it is apparent that there is 
 no need of his presence until he is caused to appear by 
 distress, after the assise has passed against the tenant. 
 For if he were allowed to come into court after his 
 default, and to warrant and say, ' I warrant, and I 
 restore the tenement demanded to the plaintiff,' the 
 warrant would be guilty of a manifest disseisin against 
 the tenant, if it were done against his consent, and 
 particularly as the warrant had then no day in court. 
 For although the warrant is obliged to defend his 
 tenant in his possession, he ought not upon that pre 
 1 See below, s. 16.
 
 BRITTON. [II, *19T &. 
 
 tence *to disseise him by surrendering to the plaintiff 
 his demand, inasmuch as surrendering and defending 
 are contraries. 
 
 9. When the taking of the assise is awarded by 
 default of the Avarrant, and the assise passes against 
 the tenant, then for the first time seisin shall be 
 awarded to the plaintiff, 1 and the Avarrant shall be dis- 
 trained to appear on another day in the following man- 
 ner. The sheriff shall take into our hand of the lands 
 of the Avarrant as much as the value of the land 
 demanded, and he shall be summoned, as will be men- 
 tioned in the plea of right. 2 For Avarranty in one 
 sense signifies the defending of the tenant in his seisin, 
 and in another sense it signifies that if he does not 
 defend him after being properly summoned, the 
 AA r arrant is bound to exchange, and to make him satis- 
 faction to the value. And in this manner let him be 
 distrained, if he has land in the same county. 
 
 10. If the land lost and the land AA'hereout exchange 
 is to be made are in diverse counties, first let the 
 tenant's land be extended ; and Avhen our Justices shall 
 be certified of the A^alue, let the sheriff in Avhose baili- 
 wick the Avarrant has land be commanded by Avrit of 
 judgment to take into our hand to the A T alue according 
 
 1 This statement about seisin being awarded at this stage of the 
 proceedings is not found in the corresponding place of Bracton 
 or Fleta, and appears inconsistent with s. 11. See also s. 23, 24. 
 Perhaps we should read, garde la seisine al tenaunt, the tenant's 
 possession being undisturbed. 
 
 2 See note above, s. 2.
 
 H, *19S.] OF WARRANTIES. 415 
 
 to the extent, and let the warrant be summoned to be 
 before them on another day. *And if several warrants 
 are to be thus distrained, having their lands in diverse 
 counties, the sheriffs shall be commanded that each 
 of them take into our hand proportionally much as each 
 ought to warrant according to the valuation of the 
 land of the tenant. 
 
 11. The reason why the plaintiff shall not recover 
 his demand immediately after the default of the war- 
 rant, and after the assise passed in his favour, is this, 
 because the warrant may perhaps excuse himself for 
 the default by alleging some hindrance ; by which ex- 
 cuse the proceedings may be annulled as far back as 
 the summons, as in a plea of right; for it cannot be 
 properly adjudged a default so long as it may be de- 
 fended by law ; and it would be ill, if the warrant 
 should lose his answer to the demandant, and give the 
 tenant his exchange when he had a good defence. But 
 if the warrant does not come into court, or if he comes 
 and cannot excuse himself for the default, then and 
 not before let the assise be taken by the default of the 
 warrant ; and if it be found that the plaintiff has right in 
 his demand, let it be awarded that the plaintiff recover 
 
 1 This statement is difficult to reconcile with what is said be- 
 fore in s. 7, where the assise is directed to be taken immediately 
 upon the first default of the vouchee. (See also s. 8, 12.) The 
 same apparent inconsistency is found in the parallel passages of 
 Bracton and Fleta. Perhaps we should understand here, that 
 the assise taken in the absence of the warrant should not be 
 treated as taken by his default, so as to be binding upon him, 
 until he had had an opportunity of clearing his default.
 
 416 BRITTOX. [II, *198 I. 
 
 his demand against the tenant, and that the tenant 
 recover to the value of the land of the warrant, and 
 the warrant remain in our mercy. And if the plaintiff 
 has no right, let it be adjudged against him, as before 
 is said. 
 
 12. And because it would be wrong for the tenant 
 to recover against the warrant by his default to the 
 value of the *land demanded, and at the same time to 
 hold his own land in peace, supposing the assise to de- 
 clare against the plaintiff, therefore we will that 
 the assise be taken before any plea is commenced 
 against the warrant. And if the warrant, whose land 
 is taken into our hand, does not appear on the day for 
 which he is a second time summoned, and the assise, 
 being sworn and lawfully charged, has passed for the 
 plaintiff, let judgment then be given against the war. 
 rant, as is before more fully set forth. 
 
 13. If the warrant comes into court, and says by 
 way of counter-plea to the warranty, that he ought 
 not, neither is able to warrant, by reason that is the de- 
 fending of the tenant in his seisin, nevertheless, as war- 
 ranty in another sense signifies the giving to the tenant 
 an equivalent exchange, if he has lost his land by default 
 of the Avarrant, we will that the plaintiff recover his 
 exchanges. And yet if he can defend himself from 
 the liability to make satisfaction to the value, it shall 
 be awarded by our Justices that he go quit without 
 day. 
 
 14. If he enter into warranty and vouch another to 
 warrant, let the second warrant be summoned against
 
 II, *199.] OF WARRANTIES. 417 
 
 .another day ; at which if he makes default, let there 
 be taken into our hands of his land to the value of the 
 land demanded, and let him be summoned against an- 
 other day ; at which day if he does not appear, or if 
 he appears and cannot clear his default, the judgment 
 shall be by process of the lesser Cape, as shall be more 
 fully and plainly said in treating of the plea of right. 1 
 
 *15. If the second vouchee comes into court and 
 counterpleads the warranty, and says that he is not 
 bound to warrant because the other holds nothing of 
 him, nor does any service to him, nor ever did homage 
 to him, or if he says that he is not now bound to war- 
 ranty, because, although he were bound thereto, yet 
 the vouchor has made default to him, and has lost his 
 aid by such default, which was prejudicial to him, 
 inasmuch as where he might have answered to the assise 
 if he had appeared at the day, he by his default lost 
 all his defences and exceptions, which loss he may im- 
 pute to his own negligence, and if he thereof demands 
 judgment, we will that judgment be given against the 
 vouchor. So likewise, if a third vouchee gives the 
 same answer. 
 
 16. Hence it plainly appears, that when the war- 
 rant makes default the first day, whereupon the assise 
 is adjudged to be taken, but through some accident 
 the recognisance of the assise is delayed until another 
 day, and the warrant comes at that day, and before 
 the assise is taken, is ready to warrant, he may be ad- 
 
 1 See note ante, s. 2. The practice referred to is described in 
 Bracton 384 ; Fleta 411, c. 25.
 
 418 BRITTON. [II, *199 I. 
 
 mitted thereto, yet not so as to allege any reason for 
 staying the assise, or to defend the tenant in his seisin, 
 but in order to make the exchanges if the tenant should 
 lose by the assise, and much more after the recogni- 
 sance of the assise, and that a vouchee in that position 
 will not be assisted bv vouching another warrant, 
 
 */ o 
 
 *17. If any warrant, after he has vouched another, 
 makes default in court, and the plaintiff and tenant 
 are in court, let the recognisance of the assise be 
 immediately taken, whether the second warrant appears 
 or not ; and let the same course be taken, where the 
 tenant makes default, although the warrant is present. 
 For although the tenant or warrant might have some 
 reason to allege for hindering the assise, yet the war- 
 rant shall not be therefore quit of the warranty 1 . For 
 the assise shall not be stayed for anything the tenant 
 can say, forasmuch as he has put his whole defence in 
 the mouth of the warrant, and cannot resume it at his 
 
 1 1 think there is some confusion here, arising from the com- 
 piler having followed Fleta's abridgment of Bracton, in which 
 the sense of the latter is not truly represented. The reason given 
 by Bracton for excluding the warrant from taking exceptions to 
 the assise in the absence of his vouchor is that by the default of 
 the latter he is quit of the warranty. Bracton afterwards sup- 
 poses another case, in which the vouchee has appeared and 
 denied his liability to warranty ; then, he says, neither the 
 tenant nor the vouchee are in a position to raise any objection 
 to the taking of the assise, for the same reasons as are stated by 
 Britton in the next sentence. Brae. 260 ; Fie. 284 ( 9). As to 
 the relation between Fleta and Britton, see the Editor's Intro- 
 duction.
 
 II, *200.] OF WARRANTIES. 
 
 pleasure ; and the warrant Las nothing to do but to 
 defend himself as to the warranty. 
 
 18. If the warrant makes no default and enters into 
 warranty, then he is allowed to answer and allege 
 against theassise any reason why it ought not to pass, 
 since all the exceptions and defences are allowed him 
 which would have been allowable to the tenant, 
 inasmuch as by his warranty he is put in the place of 
 tenant. Or the first warrant may vouch a second, and 
 he another, and so of several. 
 
 19. When several are thus vouched, and the last 
 cannot defend the tenant, or if the assise is taken by 
 default of any warrant, and the last warrant cannot 
 defend himself from liability to exchange, let it be 
 awarded that the vouchor have of the land of his 
 * warrant to the value, and so from vouchor to vouchor 
 until the plaintiff recover his demand against the 
 tenant, and he in value against his warrant, and the 
 last warrant shall remain in our mercy. 
 
 20. If one or more of the warrants are under age, 
 the plea shall stand over without day until their age. 
 Where of several demandants in common one dies 
 before the assise is taken, the writ does not thereby 
 abate. Neither shall it abate if one die out of several 
 tenants in common. But if the inheritance has been 
 divided between parceners who before held in common' 
 and one of the parceners die, the assise shall abate on 
 account of the writ being bad. And if husband and 
 wife are impleaded of the right of the wife, and the 
 husband dies before the assise is taken, neither the
 
 420 BKITTON. [II, *200 b. 
 
 assise nor the writ shall abate; but otherwise in the 
 reverse case. 
 
 21. If the plaintiff or the tenant or both die before 
 the assise, the assise shall fail for want of a foundation. 
 And if any warrant dies after he is vouched, but before 
 he has warranted, neither the assise nor the writ 
 thereby abates, but the tenant must begin again to 
 vouch his heir. But if he dies after he has warranted, 
 the writ shall abate for want of a foundation, as the 
 vouchee by his warranty lias made himself, as it were, 
 principal tenant, and taken upon himself the conduct 
 of the principal plea. 
 
 *22. If any tenant or warrant shall say by \vay of 
 answer, that he cannot answer without us, and there- 
 upon puts forward a charter of us or some of our 
 predecessors, the assise nevertheless shall not be stayed. 
 But if it passes for the plaintiff, let judgment be 
 deferred until the next session, in case by the charter 
 we may be bound to warranty by virtue of some special 
 words, although the clause of warranty may not be 
 therein expressed, and in the meantime let our Justices 
 be consulted by us upon the judgment. But if it be a 
 charter of confirmation of king Canute, or of any 
 other who was not our ancestor, or if the charter 
 express that we have granted as much as was in us 
 saving the rights of all other parties, in that and the 
 like cases we will not have judgment delayed. 
 
 23. If it shall happen that some great 1 dispute or 
 
 1 It would seem from this, that when the warrant appeared.
 
 II, *201.] OF WARRANTIES. 421 
 
 difficult question arises in a plea of warranty, by the 
 discussion of Avhich the assise is like to be delayed for 
 a day or more, in such case there will be no harm in 
 taking the assise, by the recognisance whereof it may 
 be ascertained, whether there be any need of continuing 
 the plea of warranty or not ; for if the assise passes 
 against the plaintiff, there will be no need of deter- 
 mining the plea of warranty. 
 
 24. If the younger brother has entered into the 
 inheritance of his father, and during the time of his 
 seisin has enfeoff ed a stranger, against whom the elder 
 *brother brings an assise of mortdancester, and the 
 tenant vouches to warrant the younger brother his 
 feoffor, and the latter appears to warrant, and says, 
 that assise ought not to be between him and his elder 
 brother, inasmuch as he claims to hold the tenement 
 by the same descent, the assise shall not be thereby 
 stayed ; for, although the younger brother is bound to 
 defend the tenant by his warranty, yet he is not very 
 tenant, for the tenant shall never part with his seisin 
 pending the plea of warranty ; but when the warrant 
 can no longer defend him in his seisin, and judgment 
 is given against the warrant, then and not before he 
 shall be ousted by judgment. For if the assise between 
 these brothers were to fail by reason of the exception 
 of the same descent, then a right of action ought to 
 arise in favour of the elder to demand the same tene- 
 ments by writ of right, which could not be unless the 
 
 the Justices were accustomed, in a simple case, to go into the 
 question of warranty before deciding the original plea.
 
 422 BR1TTON. [II. *201 I. 
 
 younger brother was actual tenant ; and if be be 
 required to bring the writ of right against tenant, then 
 it will be lawful for the tenant to defend the right of 
 the elder brother either by battle or by great assise. 
 Therefore to avoid this great inconvenience, we will 
 not that this exception be allowed in any possessory 
 writ unless between the demandant and the actual 
 tenant. 
 
 *25. If one enfeoff another of any tenement, and the 
 feoffee makes an intrusion or other encroachment 
 upon a third person, who brings an assise of mort- 
 dancester against the feoffee, as suppose John enfeoffs 
 Peter, and Peter effeoffs Robert of the same tene- 
 ment, after whose death Peter enters into the tenement 
 as chief lord, and the heir of Robert brings an assise 
 against Peter ; if Peter thereupon wishes to vouch 
 John to warrant, and John can aver that Peter did 
 not enter into the tenement by the act of John, but 
 by his own intrusion, in such case John, or any one 
 in like position, shall not be bound to warrant ; but 
 in such circumstances every one shall answer for his 
 personal act. 
 
 26. If an assise of Mortdancester is to be brought 
 for a tenement held for a term of years, and the farmer 
 only is named tenant in the writ, the term being for 
 ten or twelve years, or more or less, the farmer may 
 say upon the trial, that he claims nothing in the 
 tenement but a term of years under the lease of such 
 an one ; and if it be so, the writ shall fail. And if 
 the lessor ;ilonc is named as tenant, the writ shall
 
 H, *202.] OF WARRANTIES. 423 
 
 likewise fail, so that the assise may not pass to the 
 prejudice of the farmer, who has as much right to his 
 term as the lessor to the freehold. But if both are 
 named in the writ, the writ shall stand ; and the 
 fanner shall be present at the day, and vouch his 
 lessor to warrant his term, if he thinks fit to do so. 
 
 *27. Nevertheless, in some cases the farmer only 
 needs to be named in the writ as where a lord has 
 sold the wardship of any lands for a certain term of 
 years, before which term the heir attains his full age 
 and brings an assise against the farmer, if the tenant 
 vouches the lord to warrant by virtue of some deed of 
 covenant, which witnesses that the lord is bound to 
 warranty until a certain term extending be\ 7 ond the 
 majority of the right heir, we will that such cases be 
 favorably viewed in relation to the heirs plaintiffs, so 
 that they may not be delayed of their right of in- 
 heritance by such vouchers ; and the farmers shall 
 have their recovery against their warrants by writ 
 of covenant. 
 
 28. If the parties present themselves in court, but it 
 is necessary to delay the day by the default of the 
 jurors, let the parties be adjourned to their said day 
 without further essoin, as is ordained in our statutes. 
 At which day if the assise passes, whether as an assise 
 or as a jury, for the plaintiff in the absence of the 
 tenant, let the judgment be delayed until another day, 
 and the tenant be summoned to come upon such day 
 to hear his judgment ; at which day, whether he come 
 or not, judgment shall be given for the plaintiff, for
 
 424 BRITTON. [II, *202 ^ 
 
 the default of the tenant after appearance. *But if it 
 has been agreed between the parties that the assise 
 be taken and judgment given the first day, then, 
 whether the tenant come or not, the agreement between 
 the parties shall take effect. 
 
 CHAPTER XII. 
 
 Exception of 'same Descent' 
 
 1. To the points of the writ the tenant may answer 
 several ways ; for as to that which is first contained in 
 the Avrit, namely, whether such ancestor was seised, 
 he may plead, that as this ancestor was the plaintiff's 
 father or other ancestor by whose seisin he claims the 
 inheritance, so was he likewise ancestor to the tenant, 
 and by reason of the death of such ancestor he holds 
 himself in the inheritance as next heir ; and if he de- 
 mands judgment whether the assise ought to take 
 place between such privies in blood claiming by the 
 same descent, in such case we will that the tenant go 
 without day, and the plaintiff take nothing by his writ 
 for the reasons after mentioned, but remain in our 
 mercy for his false plaint. And if he thinks proper, 
 he may proceed by writ of right to try the proximity 
 of blood. 
 
 2. Nevertheless in some cases the plaintiff may 
 have a valid replication, as where a plaintiff claims the 
 tenement by the feoffment of a common ancestor of 
 himself and the tenant, and thereof produces charters
 
 ii, *203.] * SAME DESCENT; 425 
 
 *or tenders averment, and says that he claims nothing 
 by descent. But the tenant may answer by way of 
 triplication, that the same feoffment ought not to prej- 
 udice him, because the donor never altered his estate, 
 and the plaintiff was never in seisin, but the donor all 
 along continued in seisin and died seised ; and accord- 
 ing as he can verify this, so let judgment be given. 
 
 3. Nevertheless between two privies in blood, 
 brothers or cousins or other privies, this assise may 
 lie, as also the writ of Cosinage and of A el, if it has 
 been customarily used, 1 where the right heir is plain- 
 tiff immediately after the death of their common an- 
 cestor, before the tenants can claim title of freehold by 
 long and peaceable seisin. The time allowed must be 
 determined by considering whether the right heir de- 
 manded his inheritance immediately after he knew of 
 it, or could know of it, according as he was far off or 
 near, on this side or beyond the seas, in prison or out, 
 or according as he shall have been negligent in suffer- 
 ing the tenant to sleep in his seisin. 
 
 4. If one parcener demand against another by this 
 assise, as where a sister demands her share against her 
 sister, the writ and assise shall fail ; and the writ de 
 rationabili parte lies. Where the tenant says that the 
 plaintiff had a sister who had issue children, who are 
 alive, and who would have as much right to demand 
 the inheritance as she, if this be verified, the writ shall 
 fail, and the assise be stayed, whether those children 
 
 ' lr rhe statement here made is not confirmed by anything in 
 Bracton or Fleta.
 
 426 BRITTON. [II, *2(M. 
 
 were begotten in matrimony or not. And as this 
 assise does not lie between parceners and coheirs, so 
 neither does it take place between parceners who hold 
 in common or in severalty by reason of the land which is 
 in itself partible ; but only the writ de rationabili parte. 
 And as it lies not between privies of blood being legit- 
 imate, so does it not lie between a bastard brother, ten- 
 ant, and a legitimate brother, plaintiff, nor any writ 
 except the writ of right, whereby the proximity and 
 right of blood is tried and determined. 
 
 CHAPTER XIII. 
 
 Exception upon the word l seised? 
 
 1. With respect to the clause expressed in the writ, 
 * died seised,' many exceptions may arise. For one 
 may die seised in several ways, as by bodily presence, 
 and also by intention, although not present in person. 
 And in like manner may seisin be acquired. A person 
 may also retain seisin by bodily presence, ^although he 
 lias no intention to retain it, as happens with those 
 who make a gift and then die seised, before the pur- 
 chasers have had complete seisin. And a man may die 
 seised by intention, as is the case with those who go on 
 a pilgrimage leaving no one in their tenements, and 
 die on their way. 
 
 2. A person may die seised by bailiff, attorney, or 
 guardian, as well as if he died seised in his own person. 
 Thus, where a guardian in the name of an infant under
 
 II,-*204A.] EXCEPTION OF 'SEISED.' 427 
 
 age, or any other procurator or attorney in the name 
 of another receives seisin of any tenement, if he in 
 whose name the seisin is taken die so seised, we are 
 content that such persons be deemed to have died 
 seised, although they do not come to be seised in their 
 own persons, and that their heirs may demand such 
 seisin by this assise on their fathers' deaths. 
 
 3. Again, several persons may die seised of the 
 same tenement, which they have held as of fee by 
 divers feoffments. And when several assises have 
 been brought by them, 1 for it the assise brought for the 
 death of the person last seised must be first deter- 
 mined, and so backwards from seisin to seisin, until the 
 right of possession is united by judgment with the 
 right of property. 
 
 4. Where any one is enfeoffed to him and his heirs 
 by him begotten, and if he have no issue or if his issue 
 die, then over to others, if the purchaser dies having 
 issue, his child may proceed by this assise. *But if he 
 has no issue, or if the issue is dead, then the right de- 
 scends to the others named in the feoffment ; in whose 
 persons however no recovery lies by this assise, but by 
 writ of formedon. 
 
 1 That is, apparently by the heirs of the persons so dying seised 
 (cf. Brae. 262 6). The case supposed is somewhat obscure, but 
 appears to be that of several successive abatements. Upon the 
 death of A seised in the fee, B a stranger enters, and enfeoffs C 
 in fee. C dies seised, and D a stranger enters and enfeoffs E, 
 who dies seised. F a stranger enters. The respective heirs of 
 E, C, and A bring several assises of the deaths of their respective 
 ancestors. The assise of the death of E is taken first.
 
 428 BRITTON. [II, *204 J. 
 
 5. A man also may make such a feoffment that his 
 heirs cannot be aided by this assise. Thus, where one 
 has enfeoffed another for the life of the feoff or, if the 
 purchaser survive the feoffor and retain the seisin, the 
 heirs of the feoffor shall not avail themselves of this 
 assise, but of a writ of entry ad terminum qui prceteriit. 
 And if any one make purchase of a tenement for his 
 life only, the feoffor shall have his recovery after the 
 purchaser's decease, if he be deforced, by the same 
 writ of entry. If any one be enfeoffed to him and his 
 heirs so long as the feoffor shall live, in such case this 
 assise will lie in favour of the heirs of the purchaser 
 after their father's death during the life of the feoffor ; 1 
 and the heirs of the feoffor after their father's death 
 shall have their recovery by writ of entry, as afore- 
 said. 
 
 6. The tenant may traverse, and tender averment by 
 the assise, that the ancestor did not ever die seised, or 
 that if he died seised, he was seised not in his own 
 right but in the name of another, or for a term without 
 having fee or freehold. And if the plaintiff say that 
 he was seised by virtue of some feoffment, to this it 
 may be answered by triplication, as hath been said 
 above. 
 
 1 Compare below, c. 15, s. 2, and note there.
 
 II,*205.] EXCEPTION OF 'LAST SEISED.' 429 
 
 ^CHAPTER XIY. 
 
 Exception upon the, words 'last seised? 
 
 1. The tenant may urge as another exception, that 
 the plaintiff wrongfully demands by thisassise as upon 
 the death of his ancestor ; inasmuch as the plaintiff 
 himself, or another, was in seisin since the death of 
 the same ancestor by whose seisin he demands. For 
 whereafter the heir is of full age and has had 'his 
 seisin upon the death of his ancestor, he aliens his 
 inheritance and sells it in fee, if he could recover it 
 from the purchaser by demanding it in respect of the 
 seisin of his ancestor, the feoff ment would be invalidated 
 and ineffectual, and this would be greatly inconvenient. 
 
 2. It is necessary therefore to observe what seisin 
 thus had after the death of an ancestor excludes the 
 assise, and what does not. For the seisin of the right 
 heir at a time when the inheritance was vacant after 
 his ancestor's death, of whatever age the heir may be, 
 shall always bar him from recovering by this assise, 
 because then the assise of Novel Disseisin lies. But if 
 he is not in a position to aver seisin in that assise, then 
 the assise of Mortdancester is in place. But if an heir 
 has had a wrongful seisin from which he has been 
 presently ejected, such seisin bars not this assise, so 
 that this exception is not allowable, unless the tenant
 
 430 BRITTON. [II, *205 b. 
 
 say that another died more lately seised as right heir 
 of the ancestor whose seisin is demanded, and whose 
 heir the plaintiff is. 1 And where two parceners, 
 coheirs, bring this assise against a stranger *upon the 
 death of their ancestor, if the tenant say that one of 
 the parceners was since seised, the assise shall not be 
 stayed if this seisin took none effect. 
 
 1 The latter part of the above sentence is not easily intelligible ; 
 and the text appears doubtful. I do not find in Bracton or Fleta, 
 anything which throws light upon it. According to these authors, 
 the objection, founded upon a former possession of the demand- 
 ant, was held only where, being of age, he had been in lawful 
 seisin for so long a time that he might have conveyed away the 
 property. (Brae. 273, 273 b ; Fie. 297.) Seisin by an infant was 
 immaterial, since the objection was founded only upon the 
 danger of one, who had aliened the land, recovering it by the 
 assise against his own donee. (Brae. 273 b. ) Where the de- 
 mandant had had a tortious seisin from which he had been 
 ejected, the seisin did not furnish in itself a valid exception to 
 the assise ; but another objection might be taken, namely, that 
 the demandant had forfeited his right to the assise by usurping 
 the possession without judgment. (Brae. 273.)
 
 II, *206.] ' IN HIS DEMESNE.' 431 
 
 CHAPTER XV. 
 
 Exception upon the words ' in his demesne.'' 
 
 1. Whereas it is said in the writ, ' in his demesne,' 
 the tenant may aid himself by exceptions. For in 
 demesne may be held lands and rents, in fee and for 
 term of life. But demesne is properly a tenement 
 which is held severally in fee. Those tenements also 
 which are held in villenage and farmed at will from 
 day to day, and commonly for terms of years, and are 
 in the care or custody of others, are the demesne of 
 him of whom they are so holden. The word demesne 
 is also used in distinction from that which is holden in 
 seignory or service, or in common with others. For 
 then my demesnes are the same as your demesnes ; so 
 that this assise shall fail if it be brought upon the 
 death of several persons tenants in demesne, inasmuch 
 as its nature requires that it should be always brought 
 in respect of the death of the person last seised, as 
 hereafter shall be said. 
 
 2. But this assise does not bold concerning any 
 manner of demesne, save that whereof the ancestor 
 died seised *as of fee, whether it be land or service. 
 For itlieth not concerning the seisin of any farmer for 
 term of years, or of him who hath held in villenage,
 
 432 BlUTTOX. [II, *206. 
 
 or in ward, or in gage, or for term of life, 1 or by 
 condition in fee, where the heirs are excluded by the 
 form of the feoff men t either for a time or for ever. 
 
 3. But if the heirs of a creditor proceed by this 
 assise, and the deforciant pleads against them that 
 their ancestor held the tenements demanded only in 
 gage, and the heirs of the creditor reply that the land 
 was engaged to their ancestor, whose heirs they are, 
 until a certain day upon this condition, that, if the 
 debtor did not pay to their ancestor a sum of money at 
 a certain day since passed, the land should remain to 
 the creditor and his heirs in fee, and if the demandants 
 can aver this by writing or in any other manner, then 
 this assise shall take place concerning the seisin of the 
 creditor, unless the deforciant can aver payment, or at 
 least that the making of such payment was offered at 
 the day, and openly tendered at a certain place in the 
 
 1 ' A termor holding to him and his heirs and assigns for the 
 life of the lessor shall recover by Disseisin ; and his heir if 
 ejected by the lessor or a stranger by Mortdancestor. Which 
 implies as it were the possession of a fee (qe sone tot en la p'on 
 come de fee), which fee becomes extinct in the purchaser by 
 virtue of the covenant, upon the death of the lessor, and not be- 
 fore. And it is to be understood, that he who hath only a term 
 of years hath barely (escharcement) a chattel ; and shall there- 
 fore recover nothing but damages by the Justicies (le Justice), or 
 by the Quare ejecit. But he who can in any way claim more 
 than a term of years shall recover by assise of Novel Disseisin. 
 For term of years and no more is chattel ; and more than a 
 chattel he cannot have without having a freehold.' (Note in 
 MS. A T .)
 
 II, *206 &.] ' IN HIS DEMESNE.' 
 
 presence of lawful people, in full view and to the full 
 a mount without any default. For if a part is paid or 
 tendered, but the whole is neither paid nor tendered, 
 the debtor shall gain nothing by his exception. *And 
 the same reason shall hold, if a breach has been made 
 of one day out of several, where the payment was to 
 have been made by parcels at several times. 
 
 4. If the assise is brought by the heirs of the debtor 
 against the creditor or his heirs, when this condition 
 comes in question, and it is found that the money was 
 not paid or tendered according to the condition, let 
 the assise abate and let the intention of the feoffer be 
 observed. And if the assise be brought before the 
 <lay for fulfilment of the condition, let it be awarded 
 that the tenant go without day and the plaintiff be in 
 mercy for his false plaint, because the time for com- 
 plaining is not yet come, and the creditor or his heir 
 shall not be obliged to receive his money or part with 
 his security before the day, unless he is willing so 
 to do. 
 
 5. And if the condition of payment does not extend 
 to the heirs of the debtor, and the debtor dies before 
 the day, the lands shall remain with the creditor 
 according to the covenant, although the heir of the 
 debtor be ready to pay the money borrowed, inasmuch 
 as heirs are not named in the covenant. 1 And so on 
 
 1 In the time of Littleton, a more liberal construction was put 
 upon a conditional clause of this kind, the heirs, though not 
 named, being allowed to perform the condition. Lit. Ten, s. 334 ; 
 Co. Lit. 205?;.
 
 434 BRITTON. [II, f 207. 
 
 the other hand we will that the covenants shall be 
 observed, where no mention is made of the heirs of the 
 creditor ; so that if the heirs of the debtor bring an 
 assise against the creditor or his heirs, 1 and the heirs 
 of the creditor plead to the assise and say that their 
 ancestor died seised in fee, and the heirs of the debtor 
 reply that he was seised not purely in fee but in gage 
 for a sum of money, which they are ready to pay, and 
 the deforceors say, that they cannot be admitted 
 thereto, *because the day of payment is passed, and the 
 payment does not extend to their persons, and the 
 plaintiffs say, that neither does the gage extend to the 
 deforceors if it be found by the writings of covenant, 
 which cannot be contradicted, that the land was 
 engaged in the following form, that if the debtor did 
 not pay the money at the day passed the land should 
 remain to the creditor in fee, in such case the plaintiffs 
 shall take nothing, although it is not specified in the 
 writings that the land shall remain to the heirs of the 
 creditor, by reason of the word fee, which is equivalent 
 thereto. 
 
 6. And if the plaintiffs say that equity ought to 
 assist them, by reason of the smallness of the debt, that 
 shall not avail them, since every freeman may dispose 
 of his property at his will without doing any wrong to 
 his heirs, except in particular cases, as informedon or 
 in marriage, or when the gift is to persons in religion 
 or other prohibited persons. 
 
 7. We will also that the covenant be performed 
 
 1 It should be, ' against the heirs of the creditors.'
 
 II, *207.] ' AS OF FEE.' 435 
 
 between the debtor and creditor concerning land let to 
 farm to the creditor, where the condition is, that if the 
 debtor happen to die within the term, the land shall 
 remain to the creditor in fee, or for his whole life ; or 
 if it be covenanted, that if the creditor die within a 
 certain term, then the tenement so engaged shall 
 remain to some third person, such covenant shall stand 
 good. And although the heirs of the debtor have 
 some colour for bringing this assise of the death of 
 their ancestor, inasmuch as he died in a manner seised 
 in fee, yet their right must stand or fall by the covenant. 
 And whereas a simple covenant bars the assise for a 
 time or for ever, there is much greater reason for its 
 being stayed in pursuance of a judgment of our court. 
 
 CHAPTER XYI. 
 
 Exception founded on the words ' as of fee? 
 
 1. As to the Avords contained in the writ, ' as of 
 fee,' one person may hold in fee in respect of the ser- 
 vice and not in demesne, as the lord of the fee : and 
 another may hold in fee and in demesne and not in 
 service, as any free tenant. Fee is also whatsoever any 
 person holds to himself and his heirs, whether it be 
 land or rent issuing out of land. And there is a third 
 kind of fee, which is a general name for all fees, as well 
 for a knight's fee as all others. 
 
 2. But the fee specified in this assise always signifies 
 land or rent which the ancestor held to himself and his
 
 436 BKITTOK [II, *20S. 
 
 heirs, and which he might in his lifetime have sold in 
 fee ^without doing a prejudice or wrong to any one. 
 And if the assise be brought of any other manner of 
 seisin, as of land held for term of life or for term of 
 years, the assise shall fall. The words in the writ, ' as 
 of fee,' may be understood in two ways, according as 
 the word * as ' imports an apparent truth, as in the case 
 of disseisors intruders and others, who withhold an- 
 other's right and die seised as of fee, or signifies the mere 
 truth, when persons who hold by a good title, and 
 than whom none has a better right, die seised in fee. 
 In both these cases we will that this assise take place. 
 3. Again, the tenant may say, that although the an- 
 cestor died seised as of fee, yet no part thereof could 
 descend to his heirs because'he was a bastard. And, 
 although no one can be attained as a bastard except in 
 his lifetime and in court Christian, yet if the parties con- 
 sent that it shall be inquired by the assise, by way of 
 jury, whether the ancestor was a bastard or not, let the 
 recognisance be taken, and judgment be given according 
 to the verdict. And if any one will not put himself 
 on the averment, then let judgment be given against 
 him whether he be tenant or plaintiff. And let the 
 like be done, in cases where it is put forward as an ex- 
 ception, that the ancestor died a bastard without any 
 heir to the tenement, whereof he was enfeoffed only to 
 himself and to his heirs. 1 
 
 1 It is not easy to see how the case added in this clause differs 
 from the one first mentioned. The whole passage is paraphrased 
 from Bracton or Fleta, where the expressions are somewhat dif-
 
 II, *208 5.] ' AS OF FEE.' 437 
 
 4. Or the tenant may say that he holds the tenements 
 demanded only as bailiff, or at will, or by wardship of 
 *some third person, without wjom he cannot answer ; 
 and if this be proved, the assise shall fall. So, if he 
 says that the ancestor did not die seised of the land in 
 demesne, but only of the fee. 
 
 5. Again, the tenant may grant that the ancestor of 
 the plaintiff died seised as of fee, but say that never- 
 theless he cannot take anything by this assise, for that 
 the same ancestor let the tenement to the tenant for a 
 term on condition that, if the lessor died before the end 
 of the term, the termor should have a freehold for 
 term of life, or a fee and freehold, wherefore that 
 which he held before as at farm, he holds now as his 
 freehold ; and if such a covenant be verified, the assise 
 is at an end. In like manner it shall be stayed, where 
 the land has been put in gage, if the debtor has not 
 discharged it or at least offered to discharge it at the 
 day, according as we have said before ; or if he holds 
 the land as a security by judgment of our court. 
 
 6. Again, the tenant may say that he has nothing 
 and claims nothing at this time except in seigniory, or 
 by title of wardship, or to hold in another's name by 
 the lease of such an one, as a farmer, at the will of his 
 
 ferent. The latter case may possibly be that, where a bastard 
 enfeoffed to himself and his heirs (without ' assigns') gives to 
 another in fee, and dies leaving no heir, upon which the lord 
 enters. The question however in this case would not arise 
 upon an assise of Mortdancester of the death of the bastard, as 
 seems to be implied in the text. See vol. i. p. 312.
 
 438 BRITTOK [II, *209. 
 
 lessor, who is not named in the writ, and if this be 
 proved or not denied, and the jury testify that he has 
 not claimed anything in his own name, the writ is 
 thereby abatable. *So, if the tenant acknowledges 
 himself to be the villain of another, and thus to hold 
 in another's name. 
 
 7. If any one demands by this assise- that which a 
 widow holds in excess of her right dower, the assise 
 shall fail, inasmuch as she claims nothing but her 
 dower; and remedy shall be had by writ of admeas- 
 urement of dower. 
 
 CHAPTER XVII. 
 Exception founded on the wards * the dory whereon he died* 
 
 1. With regard to the words in the writ, 'the day 
 whereon he died,' or ' the day whereon he assumed the* 
 religious habit,' or 'the day whereon he departed from 
 his house on pilgrimage and undertook the journey in 
 which he died,' it is necessary to attend to the fol- 
 lowing points. For there is a solar day and a lunar 
 day, according as God divided the light from the dark- 
 ness, and these two days make one artificial day, which 
 is made up of the day and of the night following, and 
 contains twenty-four hours, and is divisible into four 
 parts. The first may begin at nightfall and end at 
 midnight, the second may begin at midnight and end 
 at daybreak, the third may begin at daybreak and end
 
 II, *209'ft.] THE DAY HE DIED.' 439 
 
 at noon, the fourth may begin at noon and continue 
 till nightfall. Therefore whether any one dies in the 
 night *or in the day, he dies in the artificial day, and 
 for this reason it is said in our writ, ' the day whereon 
 he died,' and not 'the night whereon he died.' 
 
 2. It behoves him therefore who would recover his 
 inheritance by this assise not only to aver that his an- 
 cestor, of whose death he has brought this assise, was 
 seised some time of the day on which he died, but he 
 must also shew that he died seised. For these two 
 propositions may stand together, that the ancestor was 
 seised on the day on which he died, and that he did 
 not die seised ; since one may be seised of a tenement 
 in his demesne as of fee at daybreak, and yet before 
 noon in the same quarter of a day he may give it away, 
 and put another in seisin thereof with a full intention 
 of divesting himself, and the purchaser may take seisin 
 thereof with full intention to retain it, by the union of 
 which assent there accrues to the purchaser a freehold 
 and fee and demesne by the will of the feoffor, who 
 put himself out of the seisin of the whole, and has no 
 intention of retaining any part of it. And if the feof- 
 for dies immediately in the second quarter, and his 
 heir demands by this assise the land aliened, and the 
 tenant says that the ancestor did not die seised as in 
 the case aforesaid, and thereof produces a charter of 
 feoffment which witnesseth the same, although the 
 plaintiff say that the grant of his ancestor ought not at- 
 all to avail the purchaser, inasmuch as he never took 
 esplees in full seisin before the death of the grantor,
 
 440 BEITTON. [II, *210. 
 
 *yet the plaintiff shall not succeed by this assise, unless 
 it be found by the assise that the intention of the 
 donor was contrary to his gift, or the plaintiff can 
 prove that the ancestor was not in good memory and 
 right mind at the time of the feoffment. 
 
 3. For where the ancestor, if he had lived and had 
 repented of his gift, could not have had his recovery 
 by assise of Novel Disseisin at the time that this as- 
 sise is brought, it would be unjust if this assise should 
 lie in the person of his heir. But the ancestor could 
 never have recovered by assise of Novel Disseisin, so 
 long as it could have been proved by recognisance of 
 the assise that of his own accord he made the gift, and 
 of his own accord went out and dispossessed himself, 
 and of his own accord put the tenant in seisin. And 
 according to this reasoning it would appear, and it is 
 true, that, if the donor had remained alive and re- 
 pented of his gift, and the next day or the third day 
 or soon after the gift had ejected the purchaser, the 
 purchaser might have recovered by assise of Novel 
 Disseisin by reason of the conjunction of their two 
 wills, which took place at the transferring of the seisin. 
 
 4. Hence it appears, and so it is, that two or more 
 persons may on the same day be severally seised of 
 the same tenement in their demesne as of fee, provided 
 perhaps, by reason of the words of the count in the 
 plea of right, that each can take seisin of the homages 
 
 and rents and lands to the value of half a mark or more. 
 Whereof if the donor dies on the day of his gift, and 
 the purohnsor also, or the purchasers, supposing sev-
 
 II, "210 5.] ' THE DAY HE DIED.' 441 
 
 eral *successive feoifraents to have been made the same 
 day from one to the other, and diverse assises are 
 brought of the same tenement by the heirs of the 
 donor and by the heirs of the several purchasers, 
 for every such plaintiff the assise will lie, but the heir 
 of him who died last seised on the same day shall 
 retain the tenement by judgment. 
 
 5. The same rule appears from the case of him who 
 undertakes a pilgrimage, for he may divest himself of 
 his seisin and enfeoff some stranger, and straight wav 
 on the same day begin his journey, and die the same 
 day or the next ; in which case, although his heir can 
 aver by the assise that his ancestor was seised on tlie 
 day that he set out on his journey towards his pil- 
 grimage, yet he doth not thereby prove that his an- 
 cestor left him any seisin or any right, since he neither 
 died seised corporeally nor by intention. And the 
 same reason may be assigned where a person makes a 
 gift to another and puts him in seisin, and the same 
 da} r assumes the religious habit. From all which con- 
 siderations it appears that this assise lies only for those 
 whose ancestors died or are treated as having died 
 seised, for the reasons aforesaid. 
 
 6. Again, the tenant may say that the ancestor is 
 not yet dead, and if this is verified, the assise shall 
 fall.
 
 BRITTON. [II, *211. 
 
 *CHAPTEK XYIII. 
 
 Exception founded on the words ' of so mucli land with 
 the appurtenances? 
 
 1. The writ also contains these words-, ' of so much 
 land with the appurtenances in such a vill ; ' from 
 which words exceptions may arise in favour of the 
 tenant ; as, for an error in the demand, if ' tenement ' 
 is named instead of ' rent,' or the reverse, or 'rent' 
 instead of ' customs and services,' or two carucates 
 of land for one, or if any one demands service, 
 when he ought to demand annual rent. Where- 
 fore if a tenement be demanded of him, who claims 
 nothing therein, 1 or nothing but in the name of 
 another, as guardian, farmer, villain, or bailiff, or in 
 the name of his wife, where such others are not named 
 in the writ, or nothing but the seigniory and services, 
 or if service is demanded where tenement should be 
 demanded in demesne in all or in part, or if the plain- 
 tiff says that he demands that as in demesne which the 
 
 1 ' Note, that when one demands by Mortdanoester otherwise 
 than as the defendant holds, the assise shall fall ; thus, if the 
 demandant supposes in the tenant other estate than he hath, as 
 where he is not "tenant in his demesne as of fee." For one 
 ought to demand of him that hath the thing demanded ; for of 
 him that hath nothing, nothing can be demanded.' (Note in 
 MS. N.)
 
 II, *211 1.] ' AFTER THE TERM.' 443 
 
 tenant holds in demesne, and that in service which the 
 tenant holds in service, the writ thereby falls. For 
 in this assise every one ought to make his demand 
 agreeably to the tenour of the writ, and according as 
 his ancestor died seised. 
 
 2. And if the plaintiff cannot she\v the jurors the 
 tenement which he demands, nor where he ought to 
 recover, the assise thereby falls. *So, if the tenant 
 says that he does not hold all that is demanded, and 
 the jurors of the assise say that they do not know 
 whether he holds the whole or not. 
 
 CHAPTER XIX. 
 
 Exception founded on the words ' after the term? 
 
 It is also contained in the writ, ' whether the ances- 
 tor died after ' a certain term named in the same writ, 
 from which an exception may arise in favour of the 
 tenant. For if he can prove that the ancestor did not 
 die seised after such term in his demesne as of fee, the 
 .assise shall fall.
 
 444 BltlTTOlS. [II, *212. 
 
 CHAPTER XX. 
 
 Exception founded on the words l next heir? 
 
 1. The next article in the writ is, ' whether the plain- 
 tiff is next heir.' Who is nearer heir than another has 
 been in part mentioned above, and shall be more fully 
 set forth in treating of the writ of right. And as to 
 the proximity, the tenant may answer that another is 
 nearer heir than the plaintiff, or he may absolutely 
 traverse his being the next heir, and thereupon de- 
 scend to averment by the assise. 
 
 2. Or he may say, supposing the land to be partible, 
 that the plaintiff is not the nearest heir, there being 
 another as near not named in the writ ; and if this ex- 
 ception is proved or not denied, the assise shall fall. 1 
 So if an assise is brought against one parcener, where 
 several parceners hold in common, *the writ is thereby 
 abatable. And when this assise is brought against 
 several parceners, or others holding in common, and 
 one of the tenants dies, the writ falls. 
 
 3. Again, the tenant may say that the plaintiff can- 
 not be next heir, for that the ancestor of whose death 
 
 1 See the entry of an assise 16 Edw. I, cited in Cowel's Inter- 
 preter, s. v. Partitione facienda.
 
 II, *212 b.] ' NEXT HEIR.' 445 
 
 he brings the assise did not hold the tenements in his 
 own name, but in the name of such an one, and was 
 his villain, which case being proved or not denied, the 
 assise shall fall. 
 
 4. As to an assise brought by one sister against 
 another of a tenement descending from their common 
 ancestor, we will that such an assise shall not lie, by 
 reason of the parity of the possessory right among 
 them, but the remedy shall be by writ of partition. 
 And where two sisters, one of whom is legitimate and 
 the other is a bastard, have brought this assise against 
 a tenant, although the assise say that one was born in 
 matrimony and the other before, yet it does not there- 
 fore follow that the seisin shall not be adjudged to 
 both, saving to the legitimate her action to recover 
 the bastard's share by writ of right when she is of age 
 to do so ; and let the objection of bastardy be then de- 
 termined upon replication. The same rule also holds 
 among parceners, some of whom are villains and 
 others free. 1 
 
 *5. Again, the tenant may admit that the plaintiff is 
 next heir, but still may say that he ought not as yet to 
 have the seisin, for that the tenant holds it by feoff- 
 ment of the ancestor for term of life, or in gage, or 
 upon condition, or for a certain time by judgment of 
 our court, or by the law of England for term of life. 
 
 1 The case in which this point would arise is explained by 
 Bracton, by reference to a custom of Cornwall : according to 
 which, if a freeman married a neif, half the children were free, 
 and half were villains.
 
 446 BK1TTON. [II, *2L3. 
 
 But for this he must prove that he had icsue, which 
 was heard to cry, and which had human form, and 
 not that of a monster and was never attainted as 
 bastard. 
 
 6. Again, he may say that there is a nearer heir, 
 as where the youngest of three brothers bring this 
 assise of the death of his second brother, if the tenant 
 produces in court any issue of the eldest brother, the 
 assise shall fall. 
 
 7. Or he may say, that although the plaintiff is 
 the next heir to his ancestor, yet his ancestor ex- 
 cluded him by a disposition made in his last will 
 by testament; and if this be verified, and the tene- 
 ment be devisable by usage and custom of the place, 
 as is the case with burgage tenements, the assise 
 shall fall. 
 
 8. Or the tenant may say, that although the plain- 
 tiff be right heir, yet he cannot have remedy by this 
 writ by reason of an usage to the contrary, to wit, 
 that no writ shall run, except the writ of right close 
 according to the custom of the manor. And if the 
 tenement is parcel of the ancient demesnes of our 
 Crown, and both the plaintiff and tenant are soke- 
 men, or if the plaintiff being a sokeman has brought 
 this assise against the *lord of the manor, the writ 
 shall thereby abate, unless the plaintiff can shew how 
 by feoffment the tenement has been changed from, 
 socage. 
 
 9. Or he may say, that although the plaintiff is 
 next heir, yet his ancestor did not so die seised, but
 
 II, *213 1.] k NEXT HEIR' 
 
 that the donor always continued in seisin together 
 with him, and still is seised ; and if this be verified, 
 the assise shall be stayed. 
 
 CHAPTER XXI. 
 
 Exceptions founded on the words ' who holds the land! 
 
 1. As to the words in the writ, 'summon such an 
 one who holds the aforesaid land,' or * holds the rent 
 deforced,' inquiry should be made whether the ten- 
 ant holds all according as the ancestor held it, or only 
 part of it. For the whole may be of various kinds. 
 Thus, where the plaintiff demands a manor with the 
 appurtenances, or one carucate of land with.. the 
 appurtenances, or twenty librates of land with the ap- 
 purtenances, the jurors according to the demand must 
 particularly view what tenement and how much the 
 plaintiff demands, and whether the whole according 
 as the ancestor held it or part only ; and if the whole 
 be demanded, and a part of that whole not excepted 
 in the writ be alienated, the assise shall fall, 
 
 2. And if the plaintiff makes his demand by parcels, 
 then every parcel is a separate whole, and therefore if 
 the tenant does not hold the whole of any parcel the 
 writ shall fall as to the whole of that parcel, and shall 
 hold good as to the other *entire parcels. For though 
 there is but one plaintiff against several tenants, yet 
 several (although similar) actions shall accrue, .by 
 reason of the plurality of parcels and of tenants. And
 
 448 BRITTON. [II, *214. 
 
 where one parcel is demanded against one tenant by 
 several particulars, as one caracute of land by several 
 virgates, or one virgate by several acres, if the tenant 
 does not hold the whole according to the demand, the 
 writ shall fall, either because the tenant never held 
 any part of it, or because he aliened part before the 
 writ was obtained, of which alienation no notice is 
 taken. 
 
 3. If any alienation be made after the obtaining of 
 the writ, the assise shall not be thereby stayed, by 
 reason of the presumption of fraud in the alienor, as 
 in such cases there is a great presumption that such 
 alienations are made to delay the plaintiffs of their 
 right, and to evade the judgments of our court. But 
 if any such alienation be made, and the feoffor die be- 
 fore the day of plea, the writ shall not abate ; but the 
 tenant must come and answer to the assise, or vouch 
 to warrant the heir of the feoffor. And if the heir is 
 under age, yet the assise shall not stand over to be 
 taken ; *for in such cases we will that the heir shall 
 answer of what age soever he be, as it is ordained in 
 our statutes that he shall answer to the writ of entry 
 founded on disseisin. And if the heir recover, let the 
 tenant's right be saved to recover his warranty, when 
 the heir shall be of age, by resummons out of the rolls 
 of our Justices, wherein we will that special mention 
 be made thereof. 
 
 4. If the tenant says that he does not hold the 
 whole, then he ought to declare who holds the residue. 
 For we will that before writs be abated for a fault or
 
 II, 214 J.] WHO HOLDS THE LAND. 449 
 
 error, the tenants inform the plaintiffs lio\v they shall 
 purchase good writs. And if the tenant sets forth the 
 name of him who holds the residue, the plaintiff may 
 perhaps answer thereto, that the writ ought not there- 
 by to abate, for the tenant himself held the whole the 
 ilay that the writ was purchased. 
 
 5. Or the plaintiff may say that the person who 
 holds such residue holds it for a term of years, or at 
 will, or in viilenage, and is the villain of him who is 
 named tenant in the writ ; and in such case the writ 
 shall stand. And if the tenant says that the person 
 who holds the residue is his freeman, and holds such 
 residue of him freely, and the plaintiff is not prepared 
 with suit of the blood of the villain to prove that he 
 is a villain, the writ shall fall ; and let the plaintiff ob- 
 tain a good writ against both the tenants. If the 
 tenants allege non-tenure, and cannot sav who holds 
 
 / 
 
 the residue, let them answer for what they hold. 
 
 *6. This exception of non-tenure lies properly in this 
 assise, together with the other exceptions concerning 
 the words in the Avrit. For in other writs, if it be put 
 forward with effect, it is of such force, that there is no 
 room for other exceptions, but judgment must be given 
 according as proof is made of this exception. And 
 that in different ways ; for in writs of escheat, entry, 
 formedon, cosinage, and others, in which battle and the 
 great assise do not lie, if the verdict upon this excep- 
 tion be given for the tenant, the writ abates, and so 
 the exception is dilatory, if against the tenant, the 
 plaintiff shall recover, saving to the tenant his action
 
 450 BRITTON. [II, *215.. 
 
 in the right ; but if it be put forward sucessfully in a 
 plea of right, it will be peremptory against whomso- 
 ever it passes. 
 
 7. If the plaintiff makes his plaint and demands a 
 tenement in demesne, and the writ says, ' whereof the 
 tenant deforceth him,' the writ is thereby abatable 
 for fault in such writ, for it ought to have said, 
 ' which the tenant holds.' And if he does not demand 
 land or tenement in demesne, but rent and service, and 
 the writ says, ' which the tenant holds,' the writ, if it 
 be challenged, is in that respect defective and abatable, 
 for it ought to have been, ' who deforceth the afore- 
 said rent.' *And if there is error in the writ as to the 
 name of the vill, as to where a hamlet is named, where 
 it should have been a vill, or any other kind of error, 
 the writ is thereby abatable. 
 
 CHAPTER XXIL 
 
 Exceptions of felony and bastardy, and other exceptions 
 to the assise. 
 
 1. Again, the tenant may say that assise ought not 
 to be, for that the ancestor whose seisin he demands 
 was a felon, so that no right or seisin could descend 
 through him to any other, but to the chief lord J as an 
 escheat. But this is not sufficient, unless it be said 
 
 1 The expression ' chief lord ' denotes not the superior or sov- 
 ereign, but the immediate lord ; as the tenant in chief is the im- 
 mediate tenant. See before, book ii. c. 8. ss. 5, 8.
 
 II, *215 &.] EXCEPTIONS OF FELONY. 451 
 
 ho\v he was a felon, as in an exception of bastardy, it 
 must be set forth how a bastard. And when he has 
 explained how he was a felon, then he must aver it by 
 record, on account of the danger there might be of an 
 attaint, if the jurors of the assise should make a false 
 verdict. For if he says that he was adjudged felon at 
 such or such a place, yet this is not sufficient, unless 
 the judgment was fully executed, and for this some 
 record should be vouched as a warrant. And for this 
 reason it plainly appears that no judgment of felony 
 ought to be given except in presence of some one to 
 bear record thereof. If the tenant says that he was 
 outlawed, to this it may be answered that such out- 
 lawry was afterwards legally reversed, as is above 
 mentioned. 
 
 2. If the tenant says that the plaintiff had an elder 
 brother who committed felony for which he suffered 
 judgment, *so that no right could descend from the 
 ancestor except through him, by reason of whose 
 felony he, as chief lord, entered into the tenements as 
 his escheat, whereas there are diverse opinions upon 
 this point, we will that it be understood that the law 
 in such case as to all writs is this: that if the eldest 
 brother survived the ancestor of whose seisin this 
 assise is brought, or if he died before the ancestor and 
 left any issue still living, this assise shall fall, and 
 otherwise it shall not, but the assise shall be taken by 
 virtue of the right which descended from the ancestor 
 to the younger son, since the right never found any 
 elder brother, or issue of him, to whom it might
 
 452 BRITTOK [II, *216. 
 
 descend ; and such case shall be treated as if he had 
 never been born, and no mention shall be ever made 
 of him in counting of any descent. And if such a 
 count be challenged for the omission, it shall be 
 answered that he did not live until any right could 
 descend to him ; and that if any did descend to him, it 
 nevertheless resulted to the ancestor from whom it 
 came, so that the right descended from the father or 
 other ancestor to the younger brother without any 
 intermediate, as if no elder had ever existed. 
 
 3. Exception of bastardy being objected against any 
 plaintiff or tenant in this assise stays the assise 
 in all cases ; and sometimes it turns it into a jury, 
 and sometimes the cognisance thereof is transferred 
 to be decided in Court Christian. '-Nevertheless 
 against one who is under age and tenant, no averment 
 shall pass upon an exception of bastardy before he is 
 of full age, because that exception determines the 
 right. But if the exception be pleaded against the 
 plaintiff, although he be under age, yet it does not 
 follow that a jury shall not be had to ascertain the 
 truth concerning such exception. And if the tenant 
 say that the plaintiff's father was never married to his 
 mother, this fact must be certified by the bishop 
 and ordinaries. And if the same exception is put 
 forward against both, the legitimacy of the plaintiff 
 must first be ascertained ; for if he cannot prove his 
 legitimacy, the possession will remain with the tenant, 
 whether he is a bastard or not. 
 
 4. Again, the tenant may say that if the plaintiff
 
 II, *216 6.] EXCEPTIONS OF FELONY. 453 
 
 ever Lad any right, or if his ancestor had it, that 
 right has he released and quitclaimed. In this case 
 however it is not enough to plead this in words, 
 although he may have sufficient suit, but he must 
 make it appear by record of our court, or by writing, 
 or charter of the plaintiff. And even this quitclaim 
 will not avail if the plaintiff can prove that no fee or 
 freehold or right had descended to him at the time of 
 making it, or that he was under age, or not in his right 
 mind, or that the person to whom the quitclaim was 
 made was not at the time in seisin of the tenement, 
 but afterwards thrust himself into seisin by intrusion 
 or by force. 
 
 *5. Again, the tenant may say that the plaintiff 
 wrongfully impleacls him, for that the ancestor of the 
 plaintiff enfeoffed him. and bound the plaintiff to war- 
 ranty, and therefore if he were impleaded by another, 
 he should vouch him to warranty ; and if this be 
 proved or not denied the action shall fall ; l wherefore 
 the purchaser entered therein when the seisin was 
 vacant by the assent and induction of the feoff or, or 
 by judgment of our court, and not by his own intrusion 
 or force ; or, although the entry was wrongful and 
 defective, yet the plaintiff, or another who had as great 
 a right, afterwards ratified it by confirmation ; and if 
 this be true, the assise shall fall. 
 
 6. Again, the tenant may claim title by reversion, 
 or through a fine in our court, which supposes a 
 
 1 There appears to be an error or omission in the text at this 
 point, which I have been unable to correct.
 
 BPJTTOX. [IT, *2I7. 
 
 reversion in default of issue, 1 although it be prej- 
 udicial to the plaintiff; and if tbo plaintiff does 
 not avoid the fine, the action shall fail, unless the 
 plaintiff has a fee-tail by form of gift. The fine may 
 be avoided several ways ; for it is sufficient it' he to 
 whom it is prejudicial was detained in prison or out of 
 the realm of England, or under age, or out of his right 
 mind, or deaf or dumb, whereby he could not reclaim 
 the fine within the year and day. 
 
 7. Where the tenant says that he cannot answer 
 without us, if he produces a charter, whereby we are 
 bound to warranty and exchange, the assise shall stand 
 over, but not otherwise. 
 
 *8. Again, he may claim title by judgment of our 
 court, either by surrender or by default made by the 
 
 1 There is a confusion here, which I am unable satisfactorily 
 to clear up. The words par reversioun ou appear to have been 
 slipped into the text by mistake. The words fin qe suppose re- 
 versioun are from Fleta, where the word sttpponit is perhaps 
 used in the sense of ' suppresses ' or ' destroys.' After the statute 
 De donis conditionalibus, which is alluded to above, but is not 
 noticed in Fleta, a reversion for default of issue could not be 
 barred by fine, as had previously been the usage. But at the 
 time when Britton and Fleta were written, such a plea might 
 still be common with reference to a fine levied before the pass- 
 ing of the statute, it being expressly provided that this enact- 
 ment should not be retrospective. The later operation of a fine 
 to bar the issue in tail was a consequence of the construction put 
 upon the Stat. 4 Hen. VII. c. 24 ; see Coke, Inst. ii. 517, 518 ; 
 Brooke, Abr. ti. Fine pi. 1 ; Blackstone. Comm. vol. ii. pp. 118, 
 35-1 ; Reeves, Hist. Eng. Law, vol. iv. pp. 135, 138 ; Hallaiu, 
 Const. Hist. vol. i. p. 14.
 
 II, *217 I..] EXCEPTIONS OF FELONY. 455 
 
 plaintiff or his ancestor, or in some other manner. Or 
 Le may say, that although he had once a right to 
 bring this assise, nevertheless he has defeated that 
 right, inasmuch as he has not observed the proper order 
 of pleading ; for he formerly brought his plaint against 
 the same tenant for the same tenements in the property 
 by writ of right, wherefore he cannot come back 
 afterwards to plead upon the possession. Or thus : 
 that assise ought not to be, because an assise formerly 
 passed between the same persons of the same tene- 
 ments, and in favour of the tenant ; and if this be 
 verified, the second action in all kinds of assises 
 shall abate. So, if there is another assise concerning 
 the same tenement between the same persons still 
 pending, as by reason of a plea of bastardy pending in 
 Court Christian, or for other reason. The like if the 
 tenant can aver that the plaintiff holds to an equal 
 value by exchange. 
 
 9. Again, the tenant may say that the tenement is 
 the right of another, which the plaintiff cannot bring 
 in judgment without the tenant's wife, in whom the 
 freehold rests, and that he holds nothing therein save 
 jointly with his wife. *And this he may verify three 
 ways, either because they were enfeoffed to hold in 
 common, in which case he must either shew a charter 
 or vouch some record ; or because he found his wife 
 seised thereof before he married her ; or because the 
 tenement descended to his wife as her inheritance after 
 his marriage with her. 
 
 10. Or he may say that the plaintiff is his villain
 
 456 BEITTON. [LI, *217 b. 
 
 and his astrer, and abiding in his villenage ; l and if 
 this be verified, the action shall fall. 
 
 11. If the tenant is deaf and dumb naturally, and 
 the same is not lately come upon him through sickness, 
 or if he is a mere madman or an idiot from his birth, 
 so as to be incapable of discretion, the assise shall stand 
 over until he is in a better state. 2 In the same manner 
 also where the tenant is under age, the assise shall 
 stand over until his age, if his ancestor died seised of 
 the tenement as of fee, of whatever kind of fee it be, 
 whether knights' fee, free farm, burgage or other. 
 And if the plaintiff who brings a plaint against his 
 chief lord is under age, in such case the assise shall 
 stand over until his age, if the lord claims nothing but 
 the seigniory ; but if he or another claims a freehold 
 therein, the assise shall go. 
 
 1 That is, as I understand it, in the lord's villenage, or upon his 
 demesne. An astrer (Lat. astrarius) was a peasant householder, 
 residing at the hearth or home (astre) where he was bred, ' vil- 
 lanus in veteri astro suo commorans.' (Fie. 217 ( 8); Hengham 
 Mag. c. viii. p. 103.) The word astre, in this sense, has been 
 supposed to be connected with the English hearth, Anglo-Saxon 
 heoru, but seems to be common to many of the medieval Roman 
 dialects. See Spelman, Gloss, s. v. astre ; Ducange, Gloss, s. vv. 
 astre, stare. 
 
 2 This appears to be one of those instances in which Bracton or 
 Fleta has been carelessly paraphrased. The direction to put off 
 the assise refers to the case where the incapacity arises from 
 sickness. Compare Brae. 274 ; Fie. 298 ( 29). In the other case r 
 according to Bracton, cadit assisa.
 
 II, *218.J OF ASSISES. 457 
 
 *CHAPTER XXIII. 
 
 Of Assises of Mortdaneester turned into Juries. 
 
 1. Sometimes this assise descends from its com- 
 prehensive nature, and is turned into a jury ; and this 
 for many causes in the same way as the assise of Novel 
 Disseisin. 1 Thus, it sometimes happens by reason of 
 form of gift, where the heir female is to be admitted 
 to the inheritance before the heir male. 
 
 2. So, where any one has brought this assise against 
 his lord, and the lord answers that he claims nothing 
 but wardship, and to this it is replied that he cannot 
 claim wardship, because the fee is neither chivalry nor 
 serjeanty, and the lord says that he and his ancestors 
 have had the wardship thereof from the time whereof 
 memory runneth not, if the party traverses and denies 
 this, in such case the truth shall be inquired by the 
 jurors in form of jury. 
 
 1 ' The first point in the writ is whether the ancestor died 
 seised ; the second, whether he died within the term ; the third, 
 whether the demandant is next heir. If the assise passes upon the 
 substance (sus le gros) of these three points, it passes in its gen- 
 eral nature (grosse nature). But if the tenant put forward an 
 exception against the demandant, to which lie answers, and says 
 that it ought not to affect him, and for such a reason, and tenders 
 averment by the assise, if then it passes, it is as a jury.' (Note 
 in MS. N.)
 
 458 I3RITTON. [II, *218fl. 
 
 3. So, upon the exception of sale, as where the 
 plaintiff is answered, that he had an elder brother 
 acknowledged as heir and seised of the inheritance, 
 who sold the land to the tenant, if the plaintiff says 
 that this brother was never seised, so as to be able to 
 make alienation, or that although he was himself 
 seised, yet he never put the tenant in seisin during his 
 lifetime, the truth shall be inquired by jury. The 
 same, where the tenant puts forward a release from 
 the plaintiff's ancestor, and he denies that it was ever 
 the deed of his ancestor. 
 
 i. Likewise, if the tenant says that he claims nothing 
 save by the law of England for term of life, *and the 
 plaintiff says that he never had issue by his wife ; in 
 such and in many other cases the assise shall be turned 
 into a jury if the parties consent, and if not, it shall be 
 adjudged against him that will not consent. 
 
 5. So, on account of a supposititious child, as where 
 any one, pretending to be heir, demands by this assise 
 against the true heir, if such right heir says that the 
 plaintiff was not begotten by him whose seisin he 
 demands, for that at the time of his birth the person 
 whom he alleges to be his father was in parts beyond 
 sea, and had been so for two years and upwards before, 
 or impotent, or labouring under such an infirmity that 
 he could not be presumed capable of begetting children, 
 but that as soon as he returned he removed him from 
 his house as the offspring of another, or that although 
 he acknowledged him for his own, it was well known 
 and notorious that he was not begotten by such ancestor ;
 
 .II, *219.] OF ASSISES. 459 
 
 if this point be contested between the parties, the 
 assise is at an end, and the truth shall be inquired by 
 jury; and so in numberless other cases. 
 
 CHAPTER XXIV. 
 
 Of the Judgment in an assise of Mortdancester. 
 
 1. When the parties have pleaded to the assise, let 
 the jurors be called, and let those who are absent bo 
 *amerced, and the rest go and lay their hands on the 
 book. Then let it be asked of the parties, whether 
 they have anything to say wherefore the jurors should 
 not be sworn one after another ; and after their 
 challenges are allowed, as we have said before in 
 treating of the assise of Novel Disseisin, if there do 
 not remain as many as twelve unchallenged, let that 
 day be respited and let the sheriff be commanded to 
 cause a sufficient number to come on another day. 
 
 2. When there are jurors enough, let them go and 
 be sworn in the manner described in assise of Novel 
 Disseisin. Afterwards let them be charged, and safely 
 kept so that no one come near them until they have 
 given in their answer. And according to their verdict 
 let judgment be given for the one party or the other. 
 And afterwards let the damages be taxed by the 
 jurors, as before is said. 
 
 3. If several persons bring this assise of the deatli 
 of their common ancestor, and the jurors cannot sny 
 which of them all is nearest heir, in such case tho
 
 460 BPJTTOJtf. [II, *219 b. 
 
 seisin shall remain with the tenant, unless the plaintiffs 
 for the manifestation of their right cause the jurors 
 to be charged upon some point, or they themselves 
 declare it, whereby the Justices may be informed 
 which of them has the best right of action. If several 
 assises are brought against one tenant for one and the 
 same tenement demanded by divers descents, in such 
 case the *recognisance must first be taken of that 
 assise which is brought upon the last seisin. If a 
 perambulation is necessary, let it be made as hath been 
 said above. The party which is in the wrong shall 
 be moderately or heavily amerced, according as his 
 claim was malicious or founded on a colour of right. 
 
 CHAPTER XXV. 
 
 Of the writ called Quod permittat. 
 
 1. Sometimes it happens that although the right 
 heir has obtained the seisin of his inheritance, never- 
 theless he is hindered from having the seisen of some 
 common or other appurtenance annexed to his in- 
 heritance, in another's soil, and whereof his ancestor 
 died seised ; in which case no remedy lies for the heir 
 by this assise, but by a simple jury proceeding by 
 virtue of a writ provided in this case, called Quod 
 permittat. The same remedy is provided for successors 
 against the deforceors of such appurtenances whereof 
 their predecessors died seised as in right of their
 
 II, *220.] OF QUOD PERMITTAT. 461 
 
 churches. And if there are several deforceors who 
 hold in common, then all must be named in the writ, 
 or the writ, if it be challenged, will be abatable. 
 
 2. This writ tries only the right of possession, 1 and 
 is therefore limited within the same term, and to the 
 same persons, as the assise of Mortdancester ; *and 
 beyond this term no writ lies in this case except a 
 writ of right patent pleadable in the court of the lord 
 of the fee. 
 
 3. In this writ of possession an essoin lies the first 
 day as well for the tenant as for the plaintiff. And 
 
 1 ' Sometimes the Quod permittat may be altogether in the 
 Right, when it contains the words liabere debet ; sometimes al- 
 together in the Possession, by reason of the word solet, and this 
 when the demandant demands of his own seisin. But when one 
 demands the seisin of his ancestor, this savours of the nature of 
 Mortdancester, because the writ shall make mention that the 
 ancestor was seised of the thing as of fee as appurtenant to his 
 freehold in such a town the day whereon he died.' (Note in 
 MS. N.) A writ of Quod permittat containing the words habere 
 debet was treated as a writ of right, triable by battle or great 
 assise ; and accordingly it was decided in 32 Edw. I. that a 
 parson could not prosecute such an action without aid of the 
 patron and the bishop. Year Book, 32 Edw. I. pp. 117, 510. 
 Compare Vetus Natura Brevium, 68 6. In the examples given 
 by Bracton of this writ, which he, as well as our author, de- 
 scribes as affecting the possession and not the property, the 
 action is founded upon the seisin of the ancestor of the plaintiff, 
 or of the predecessor of a parson claiming in right of his church. 
 For the forms of writ in which the demandant founded his claim 
 upon his own seisin, and of those in which the words debet and 
 solet were contained, see Regist. Brev. Orig. 155, 156 ; Fitzher- 
 bert, Nat. Brev. 123 ; and compare below, 1. v. c. 14. s. 1.
 
 462 BRITTON. [II, *220 ft. 
 
 if the tenant makes default, let the distress run accord- 
 ing to the process before-mentioned in the chapter of 
 Quo jure. Demand of view and voucher of warranty 
 both lie in this writ. 
 
 CHAPTER XXVI. 
 
 Of the writs of Cosinage, Ael, and BesaeL 
 
 1. As the assise of Mortdancester is limited within 
 certain degrees, and holds only of the death of certain 
 persons and against certain persons and extends no 
 further, certain writs in degrees adjoining, to which 
 that assise does not extend except by reason of another 
 person joined with the plaintiff, have been provided in 
 aid of that assise, whereby in all cases of so recent a 
 seisin a plaintiff will not be compelled to have recourse 
 to a writ of right, wherein there are many delays and 
 risks. These writs are those of Cosinage, Ael, and 
 Besael, by which, if the time allows, the right of 
 possession may be tried. 
 
 2. As these writs are provided in aid of that assise, 
 it is reasonable that they should in a great measure 
 follow the nature of it, as in respect of the term, and 
 therefore the same limitation of term *is fixed for one 
 and the other ; so likewise they hold between the same 
 persons out of the degrees, for these writs take effect 
 between the same persons beyond the limits of the 
 assise, between whom the assise lies within the limits, 
 (and not between other persons, as privies of blood
 
 II, *220 />.] OF COSINAGE. 463 
 
 claiming by the same descent), ascending to the grand- 
 father's grandfather, if the time admits of it, and 
 descending to the remotest blood. 
 
 3. It should be understood, that all those who issue 
 from uncles and aunts, as well on the part of the father 
 as on the part of the mother, and all those who issue 
 from brothers and sisters, and those also who issue 
 from their issue, in the degrees to which the assise of 
 Mortdancester does not extend, are properly cousins 
 to each other. And in the right line descending 1 thev 
 
 O if 
 
 are cousins, as well as in the collateral lines. For as- 
 cending they are ancestors, or grandfathers or great- 
 grandfathers, and descending they are cousins, because 
 the great-grandfather or the grandfather's grand father 
 may by writ of Cosinage demand the seisin of the 
 lowest found in the right line, and the grandfather or 
 father or mother by the same writ may demand the 
 seisin of the son or daughter; 1 where in the other 
 
 1 Our author appears to stand alone in asserting a right of in- 
 heritance in the ascending line. (See post, 1. vi. c. 3. s. 4.) A 
 has a son B, and no other of his blood ; B purchases, and dies 
 without issue. Qucestio. Whether his father can or ought to 
 have the purchase. Solutio. The chief lord and not the father, 
 because the son is of the blood of the father, but the father is 
 not of the blood of the son. But the purchase shall ascend col- 
 laterally, as to uncle or aunt, and this is the first resort, for in 
 every Cosinage the count must be by resort. The second resort 
 is to the grandfather's or grandmother's brother or sister ; the 
 third to the brother or sister of the great-grandfather or great- 
 grandmother. But the seisin of the grandfather's grandfather 
 cannot be counted of, save in the writ of right ; so that by the
 
 464 BRITTOK [II, *221. 
 
 direction assise of Mortdancester, writs of Ael and 
 Besael, and writ of right would lie. 
 
 4. In order to see plainly in what degrees they are 
 cousins in relation to the father or others found in the 
 direct line, let a line be drawn straight down, and let 
 there be placed therein four degrees, one above the 
 other, in the first of which let great-grandfather and 
 great-grandmother be placed, in the second grandfather 
 and grandmother, in the third ^father and mother 
 and in the fourth son and daughter. From the three 
 upper degrees let three cross lines be drawn on each 
 side, and for every male child let a degree be made by 
 itself on the one side, and likewise for every female 
 child on the other side, and for every child of these 
 children let a degree be made further down, and so on 
 for the issue of that issue from degree to degree, the 
 eldest always filling the degree adjoining the father or 
 mother in the right line descending. The degree 
 found under the great-grandfather signifies his eldest 
 son, and in the degrees at the side of the son, who is 
 called grandfather, are the younger brothers and 
 sisters of the grandfather, who are uncles and aunts 
 to the father or mother, and so by like reason it is to 
 be understood of all the other degrees below. 
 
 5. All those, of whose death neither assise of Mort- 
 
 fourth resort demand can only be made in a writ of right.' 
 (Note in MS. N.) For the purpose of limitation the degrees ap- 
 pear to have been counted back from the person whose seisin was 
 demanded, not from the claimant. See Year Book, 32 Edw. I. 
 p. 145.
 
 II, *221 I.] OF COSINAGE. 465 
 
 dancester nor writ of Ael or Besael lies, are cousins, 
 .a nil where no remedy lies by these writs, it lies by 
 writ of Cosinage, as long as the time allows, beyond 
 which no kind of remedy lies but by writ of right, 
 which is the *last remedy of all. The nature of the 
 plea of Cosinage serves to explain the descents and the 
 resorts as well of the right line as of the collateral, and 
 the descent and the resort of the kindred out of the 
 right line to the collateral. 
 
 6. In counting upon this writ no mention should be 
 made of the right, nor in any writ of possession, 
 where no mention is made thereof in the writ ; for by 
 variance between the writ and the declaration the 
 writ would be abatable ; but in this writ and in those 
 of Ael and Besael it is sufficient to count of the sesin 
 of the cousin or grandfather or great-grandfather, who 
 died seised in his demesne as of fee, without speaking 
 of the right. For these two words, 'in his demesne as 
 of fee,' bring in judgment all the possessory right ; 
 and when the word ' right ' is expressed in the count, 
 it imports that the plaintiff intends to bring in ques- 
 tion the property, whereof if the writ makes no men- 
 tion, and the error is challenged, the writ thereby 
 abates. 
 
 7. Moreover it is not essential to count in any pos- 
 sessory writ of any taking of profits, and this is no 
 more necessary in pleas of Cosinage or Ael or other 
 writs of possession, than in assise of Novel Disseisin 
 or Mortdancester. For one may be seised without 
 taking profits, as the right heir becomes seised after the 
 
 30
 
 466 BRITTOK [II, *222. 
 
 death of his ^ancestor, the inheritance being vacant, 
 by setting his foot thereon, and others in whose per- 
 sons the property rests by a single conjunction of the 
 right with the possession, the tenement being first 
 vacant ; in which cases although such heir should die 
 before taking any of the profits, yet he would never- 
 theless die seised in his demesne as of fee. If however 
 the taking of esplees is mentioned and can be verified, 
 these words are rather of service than otherwise, since 
 they tend strongly to declare the seisin. 
 
 8. In this writ lie essoins, process by Cape upon de- 
 fault, demand of view r , voucher of warrant, exceptions 
 of the same descent, of seisin, of last seised, of his 
 demesne as of fee, of so much land, of term of prox- 
 imity, of non-tenure, of felony, of errors, of bastardy, 
 and the others mentioned above in assise of Mort- 
 dancester.
 
 BOOK IV. 
 
 OF PLEAS RELATING TO ADVOWSONS AND THE PROPERTY 
 OP CHURCHES J AND OF ATTAINTS. 
 
 CHAPTER I. 
 
 Of the Assise of Last Presentation. 
 
 AN assise of last presentation is the recognisance of 
 twelve jurors, which tries the right of possession to 
 the advowson of any church, that is, who last present- 
 ed in his own name in time of peace. *This may some- 
 times be pleaded before our Justices Itinerant, 
 sometimes in the Bench at Westminster by the 
 ordinance of the Great Charter, and sometimes for 
 the dispatch of justice before our Justices especially 
 authorized for that purpose. Sometimes the assise is 
 begun in one place and is ended in another ; and some- 
 times it is begun out of the county, and the recogni- 
 ance or jury is taken in the county; and sometimes 
 the parties are adjourned to hear their judgment, and 
 sometimes not adjourned. 
 
 2. Therefore where any person has presented to a 
 vacant church to which he or his ancestors have pre- 
 sented in time of peace, inasmuch as every heir ought 
 
 to enjov the seisin which his ancestor had, unless the 
 
 467
 
 468 BRITTON. [II, *223 
 
 disturber or deforceor can show plain reasons to the 
 contrary, which contest is determinate by this assise 
 of last presentation, we must first see to whom it be- 
 longs to bring this assise. For it belongs only to him 
 who has, once or of tener, presented in his own name, 
 or to his heir by reason of his succeeding to the inher- 
 itance and the right of an ancestor who died seised of 
 the advowson. 
 
 3. What is said of one heir may be understood of 
 several who are parceners and as one heir. But if 
 several parceners ^recover the advowson of any church 
 bv this assise, and the church is void, no parcener can 
 present without the other b\ T any prerogative of seni- 
 ority, or for any other reason. By this assise shall 
 never lie for those who hold in common by feoffment 
 and not by descent, before they have been seised of 
 the presentation, since two persons can never recover 
 by this assise who make their demand of the seisin 
 of him or of them whose heirs they are not, any more 
 than in pleas of right. Neither does it lie for those 
 who hold for term of years, or for term of life by 
 reason of dower, or by the law of England, or in gage, 
 or by feoffment, or by escheat, or by any mode of ac- 
 quisition other than succession. 
 
 4. If the plea is not in the Bench, then one essoin and 
 no more lies for each party, so that after their 
 appearance there is no essoin. And if the deforceor 
 makes default, then the process above-mentioned in 
 the chapter of summons takes place. And if the plea 
 is in the county, although it commenced out of the
 
 II, "223 b.] OF DAY OF PLEA. 469 
 
 county, no resummons after default shall lie, nor am r 
 essoin, nor any delay. And if the plaintiff is under 
 age, neither essoin nor resummons ever takes place, 
 whether the plea be within the county or without ; *for 
 in such case the absence of the tenant is as good as his 
 presence. Neither does resummons lie in cases of 
 contumacy ; as, where the tenant or the disturbant 
 appears in court, and contemptuously departs, after he 
 has been seen by the Justice in court ; but in such case the 
 assise shall be forthwith taken without any resummons ; 
 also, if the defendant makes default, 1 resummons shall 
 not lie. So, when he appears, and will not or cannot 
 allege any cause why the assise should be stayed, let 
 the assise be presently taken, if the jurors are present, 
 and if not, let the sheriff be commanded to have their 
 bodies at another day. 
 
 CHAPTER II. 
 
 Of the day of Plea ; and of the Count of the Plaintiff. 
 
 "When the parties appear in court, it will then behove 
 the plaintiff, after the writ has been read in audience, 
 to declare his case in such a way as to show how he 
 hath right of action and reason to complain, and of 
 whose seisin he has brought the assise, whether of 
 his own seisin or of that of another. If of his own 
 
 1 That is, default after resummons ; see the parallel places in 
 Bracton and Fleta. Perhaps we should read, ' defaute apres 
 defaute.'
 
 BPJTTON. [II, *224. 
 
 seisin, it will be necessary for him, in order to certify 
 the court of his right, to say further, whether, when 
 he presented, he held any glebe, such as rent or soil, to 
 which the advowson was appendant, or not, *and it he 
 holds such glebe, then he must set forth how he holds 
 it, whether in fee or for term of life or for any other 
 term. 1 If he says that he demands the seisin of some 
 ancestor, them he must show how he is the heir of such 
 ancestor, so that it may appear by his statement 
 whether he has a several action, or one in common 
 with any parcener. And if his plaint is in an action 
 upon a common right, it should be further known 
 whether it be his turn to present this time or not. 
 
 CHAPTER III. 
 
 Of Exceptions in Assise of Last Presentation. 
 
 1. The deforceor must thereupon answer. For 
 voucher of warrant does not lie, because the object of 
 the writ is to ascertain by the assise, who has the best 
 right to the presentation. The deforceor may answer 
 to the declaration by exceptions, of which the dilatory 
 are first to be proposed. 
 
 2. As to the words in the writ, ' who is the 
 
 1 The word ' glebe ' is used for the land to which the advowson 
 is appurtenant. ' Nota, quod verus advoeatus dicitur ille, qui 
 patronus est ut de f eodo et recto ex descensu haereditatis. Quasi 
 advoeatus est ille, qui possidet glebam, ad quam pertinet advo- 
 catio, non in feodo sed ad terminum.' (Note in MS. N.)
 
 II, *224 &.] OF EXCEPTIONS IN ASSISE. 471 
 
 advocate,' it must be understood that the advocate is 
 he to whom the right of the advowson of any church 
 belongs, so that he may present to that church in his 
 own name, and he is called advocate by way of distinc- 
 tion from those who have occasion *to present in the 
 name of another, as guardians do in the name of infants 
 under age, whose lands are in their ward, and also 
 from those who hold the tenement to which an 
 advowson is appendant for a term of life or years 
 only, 1 or by intrusion or disseisin, provided these have 
 never presented ; for if they have presented, and so 
 are in seisin of the advowson, they are thereby become 
 in a manner advocates, so far as regards the seisin of 
 the presentation, as long as they hold the tenements 
 to which the advowson is annexed ; for until the 
 disseisee or the true possessor has recovered the tene- 
 ment, which is the principal subject, he can have no 
 claim to anything accessory thereto. 
 
 3. The words also ' in time of peace ' are used in 
 distinction from time of war, under which are com- 
 prehended all times of injuries done by one neighbour 
 to another by violence, and by intrusions, disseisins, 
 robberies, disturbances, oppressions, and other wrongs ; 
 whence time of peace may be thus distinguished and 
 understood ; for one may present before the time of 
 war, or in the time, or after the time, and yet the 
 presentation \vill be sufficient and lawful ; and so in 
 the reverse case, a presentation may be made by extor- 
 tion, in despite of the true possessor, by fraud and 
 1 See the note from MS. N. in p. 173.
 
 472 BKITTON. [II, *225, 225 I. 
 
 contention. *And as the one is in all points good and 
 lawful, so the wrongful presentation is never of any 
 effect, because in wrong and so not in time of peace. 
 And from such wrongful acts of violence and oppres- 
 sion there do always arise exceptions in favour of the 
 plaintiff against the title of the disturbor. 
 
 4. With regard to the word also contained in the 
 writ, ' presented,' care must be taken to see whether 
 the parson who was then presented was upon the 
 presentation of such an one admitted and instituted by 
 the bishop or not ; for otherwise the presentation was 
 of no avail. And if two clerks are presented to the 
 same church by different patrons, both of them cannot 
 be admitted at the same time, but one at least must 
 be refused ; and it may also well happen that neither 
 of them shall be admitted, although one of the patrons 
 have the right to present, and this for two reasons. 
 One is, that if the church remains unprovided beyond 
 six months, then according to the Council of Lateran, 
 upon the disagreement of the parties, the bishop of the 
 diocese shall provide for it, and shall ex ojficio give 
 the church to some clerk saving every one's right. The 
 other reason is the minority of one of the presenters, 
 as where charters of his ancestors are produced against 
 any presenter who is under age, to which charters he 
 can give no answer before he is of age ; in such case 
 if the parties do not agree in the presentation of a 
 parson, the collation belongs to the ordinary of the 
 place, saving every one's right when the person under 
 age comes of age ; but in such case it should be so-
 
 II, *226.] OF EXCEPTIONS IN ASSISES. 473 
 
 ordered by advice of the Justices, that some annual 
 pension be reserved to the infant until he comes of age. 
 for the saving of his right to present when he shall 
 attain his age. 
 
 5. Two persons may present at the same time, one 
 having a right and the other none, or both of them 
 some colour of right ; and if it should happen that 
 they both agree in one clerk, without trying the right, 
 by that presentation the right of no one is diminished or 
 altered, but resort must be had to the seisin of that 
 patron, of whom it is certain that he last presented 
 of right alone. But if any one has once presented 
 without opposition, and some person at the next 
 avoidance makes a disturbance, and afterwards assents 
 to the presentation of the true patron, by this assent 
 the estate of the patron, as regards his right of pre- 
 sentation at another avoidance, is not prejudiced. For 
 it is one thing to assent and another to consent. 
 Assenting is where any person who has no right to 
 present, after having made a disturbance, says, ' I 
 assent to this presentation, saving my future right ; ' 
 and such assent is not prejudicial to the true patron, 
 nor does any right ^accrue thereby to the disturber. 
 Consenting is when any one who is in seisin of the 
 advowson consents to the presentation of him who has 
 a better right. For the one may be in seisin of the 
 possessory right, and the other of the property, and he 
 Avho has more of the property has the greater right. And 
 such consent may be made simply, or with protestation. 
 If made simply, he thereby renounces all his right ;
 
 474 BRITTON. [II, *226 ft. 
 
 if with protestation in these words, ' saving to me 
 my right at other avoidances,' he thereby retains 
 the right that he has, whatever it may be. The 
 same rule holds in advowsons of chapels, prebends, 
 vicarages, hospitals, abbeys, priories, and other places 
 to which one may present on occasion of avoidance. 
 
 6. That which is said in the writ, ' the parson who 
 is dead,' is said to distinguish him from a vicar, to 
 whose vicarage none can present. The word ' dead ' 
 lias a double meaning, being used either of natural 
 death, or death to the world, as in the case of him who 
 becomes professed in religion, and has renounced all 
 worldly things, or of that which in this matter is 
 equivalent to death, as where a parson has married a 
 wife, or done any other thing whereby he is unable to 
 retain any church. 
 
 7. It is contained in the writ, ' to such a church 
 which is void ; and here it must be observed whether 
 it is entirely void, or the parsonage only ; *for if any 
 pension has been granted by virtue of some accord 
 between parties or by way of a simple benefice, and he 
 who received that benefice dies, the church and par- 
 sonage do not thereby become vacant. The same is 
 to be understood of a vicar whose vicarage is not in 
 any one's presentation, and which upon his death 
 accrues entirely to the parson, and in particular of a 
 vicarage endowed by the ordinary for the reasonable 
 support of a vicar. 1 The word ' church' is also used 
 
 1 There appears to be an error here. In the parallel passage of 
 Bracton the case here mentioned is stated as an exception to the
 
 II, *227.] OF EXCEPTIONS IN ASSISE. 475 
 
 by way of distinction from chapel, and therefore if in 
 the writ it is said ' church' where it ought to have 
 been ' chapel,' the writ is thereby abatable. But 
 whether it is a chapel or not is not to be tried in lay 
 courts, but in court Christian. 1 
 
 8. If the assise is brought of the entire church, where 
 the moiety only or the third or fourth part is void, and 
 there is a dispute about the avoidance, for that one 
 side says it is void and the other that it is full, let the 
 truth thereof be inquired by the assise. For if the 
 cognisance thereof was referred to the bishop, the 
 church might be encumbered by him, or the truth 
 perhaps would not be returned ; as suppose he had 
 admitted and instituted any clerk in such church upon 
 the presentation of one who had no right to present, in 
 such case he might return that the church was full and 
 provided, which would be a prejudice to the true 
 patron. 
 
 *9. And upon the verdict of the assise let the bishop 
 be commanded that he admit the clerk presented, and 
 if he will not, let him be forthwith summoned to 
 answer why he refuses ; and thus the incumbrance 
 
 general rule, by which a vicarage became merged in the parson- 
 age. ' Et hoc dico nisi taxata fuerit per ordinarios ad rationa- 
 bilem sustentationem vicarii.' Brae. 241 5. The same error 
 occurs in Fleta (as printed), where the words are, ' et hoc ubi 
 taxata fueri, &c. Fie. 322 ( 9). 
 
 1 This question was treated in 32 Edw. I. as one determinable 
 by the assise. Year Book, 32 Edw. I. pp. 107, 349. Compare 
 Fie.' 323 (18).
 
 476 BRITTON. 
 
 of the bishop or other ordinary, if any there be, may 
 be proved. And if any ordinary is found guilty of 
 such incumbrance, let it be immediately adjudged that 
 he set the church free, or otherwise make satisfaction 
 to the patron and let the ordinary remain in our mercy. 
 Thus the church may be void in law but not in fact. 
 But where it is void both in law and in fact, the 
 assise shall run immediately, for then the church is 
 truly and rightfully void. 
 
 10. And if any clerk has of his own folly thrust 
 himself into the church at the time of avoidance, yet 
 the assise shall not be stayed, but shall be taken as if 
 it was entirely void and unprovided. And if the jurors 
 say that it is full by the intrusion of such a clerk, let 
 the plea be immediately sent to the court Christian, 
 that the bishop of the diocese may certify our Justices 
 whether the intrusion be rightful or tortious, and upon 
 this let judgment be given. For the recognisance of 
 spiritual intrusions, whether they are rightful or not, 
 does not belong to the temporal court any more than 
 that of other spiritual matters. Yet such returns of 
 bishops are not always fully sufficient, without further 
 support from muniments or other evidence. 
 
 *11. Whereas it is said in the writ,' which advowson 
 such an one saith belongs to him,' it is right that the 
 plaintiff should plainly show how he hath right, and 
 reason for complaint. It is likewise said, 'summons 
 such an one ; ' therefore the plaintiff must in the 
 declaration of his case point out how and in what way 
 the defendant wronsrfullv deforces him.
 
 Il,'*228.] OF THE WKIT. 477 
 
 12. Although the writ says, ' who deforceth him of 
 the aforesaid advowson,' yet it is not to be understood 
 thereby that the deforceor is in seisin of the advowson. 
 But the word ' deforce ' is used because he is sufficiently 
 a deforceor who disturbs another in the whole or in 
 part, although he does not actually eject him from the 
 whole, as above is said. From the points aforesaid 
 exceptions may be drawn either wholly to destroy the 
 assise or to delay it. 
 
 CHAPTER IY. 
 
 Of Exceptions independent of the Writ, 
 
 I. Although the disturber admits all the articles of 
 the writ, yet he may except against the assise, and say, 
 that, whereas the plaintiff counts of the seisin and 
 presentation of his ancestors, he wrongfully complains, 
 because after his own presentation, he granted to this 
 same disturber or to one of his ancestors a tenement 
 to which the advowson was appendant, and that by 
 such a charter ; and therefore, although the plaintiff or 
 any of his ancestors did present, yet he ought not to 
 present on account of the aforesaid deed. 
 
 *2. If, then, the plaintiff is of full age, he may 
 acknowledge the charter and admit the gift, and say 
 in answer to the exception, that after the making of 
 such gift he presented such an one by name, who was 
 admitted on his presentation, whereby the gift is null 
 and the charter void. And if this be proved or not
 
 478 BEITTON. [II, *228. 
 
 denied, there is an end to the exception, 1 unless the 
 deforceor can sav that although that charter be void 
 
 v CD 
 
 and the gift null for the last presentation of the donor, 
 yet after such presentation this same plaintiff or his 
 ancestor made a new gift and a ne\v charter to him, 
 whereby the presentation belongs to him. Or he may 
 say that the plaintiff confirmed the first charter to him, 
 and so that which was before weakened by want of 
 seisin he did afterwards strengthen bv confirmation ; 
 
 o - *- 
 
 and if this be verified or not denied, the assise shall 
 fall, unless the plaintiff can aver a later presentation. 
 Or he may grant that the presentation was so made 
 by the plaintiff or his ancestor after the gift and after 
 the making of the charter ; but he may say that he 
 purchased out against him a writ of warranty of 
 charter, upon which the plaintiff was summoned, and 
 
 1 ' A gives a manor with the advowson of a church to B ; A 
 dies. C, son and heir of A, is under age, and in ward of D. 
 The church avoids. D presents in right of wardship, and his 
 clerk is admitted and instituted. When C is of age, the parson 
 dies. C presents, and B, the purchaser, presents also. C brings 
 assise. B, the disturber, alleges his purchase. C replies of the 
 continuance of seisin by the last presentation. Qucestio. quit 
 fiet. Solutio. C shall recover, and B take nothing ; because 
 purchase without fine levied is invalid (riens ne valt) without 
 seisin. Contra. Induction of seisin of the principal substance 
 (del gros e del principal), to which the appurtenances are ap- 
 pendant and accessory, suffices for seisin of both. But the glebo 
 is a principal substance to which the advowson is appendant and 
 accessory ; therefore the induction of seisin of the glebe is suffi- 
 cient for the principal and for the accessory.' (Note in MS. N.) 
 See before, p. 173, note.
 
 II, *228 ft.] OF THE WRIT. 479 
 
 in our court acknowledged the charter to be his deed, 
 and allowed the gift, so that a fine was levied, and a 
 chirograph made ; and thus the plea shall be ended. 
 
 3. In order to see this matter clearly, let us suppose 
 that one has granted to another a manor, with the 
 advowson of a church, to him and his heirs in fee, and 
 before the church ^becomes void the purchaser gives the 
 same manor with the advowson to another ; then the 
 parson of the first donor dies, and the former purchaser 
 presents, and the latter also. The first purchaser has 
 no right, inasmuch as he was never seised ; neither 
 has the latter any right, for no one could give a thing 
 which he had not ; so that the right of presentation 
 must of necessity remain with the first donor, who 
 always continued in possession of the right of presenta- 
 tion, inasmuch as the purchaser aliened his right before 
 seisin, that is to say, before he presented. 1 And the 
 same reason holds in case of several alienors. 
 
 1 ' If one purchase a tenement to which an advowson is ap- 
 pendant, and alien the tenement before he has presented to the 
 church, the second purchaser hath lost for ever his action to re- 
 cover the advowson by reason of his purchase. Probatio hvjus. 
 Feoffor cannot make higher estate to his feoffee than he himself 
 had ; but the feoffor had no estate in the advowson. Therefore 
 he could make none. Contra. Seisin of principal is seisin of 
 accessory ; but the purchaser, by means of the glebe, takes seisin 
 of the principal ; therefore of the accessory. Responsio. Seisin 
 cannot be taken more largely than it is delivered, but seisin was 
 never delivered of the advowson ; therefore it could not be taken. 
 Solutio. There are some appurtenances which may be severed 
 by the owner ; as a garden belongs to a house, but if the owner 
 gives the house with its appurtenances, retaining the garden,
 
 480 BRITTON. [II, *229. 
 
 4. For if the last purchaser could in any way vouch 
 his feoffor to warranty, it would not avail him, because 
 the warrant was never seised. For no one is bound 
 to defend any other in his seisin, except him who is 
 found in possession ; l and if the vouchee should war- 
 rant to him in fact, since in law he would not be 
 bound to do so, and should himself vouch the first 
 alienor, the latter would not be bound to warranty, 
 and this for two reasons ; first, because the voucher 
 is not in seisin ; and, secondly, because the last pur- 
 chaser cannot claim or have again what he never had 
 or could have. And although the first alienor confirm 
 the gift to the first purchaser, 2 *yet the last purchase 
 is not thereby strengthened, since that gift is not the 
 
 there are two principal matters where before there was but one 
 (sunt deuz gros qe avant ne furent fors qe un gros). So in the 
 former case (Auxi par decha); the donor aliened the land with 
 the advowson, but retained the advowson by the presentation 
 after the gift ; as, if I enfeoff you of two acres, and continue in 
 seisin of one, the charter is void as to that acre. But if he who 
 purchased the land with the advowson had not aliened the land, 
 but had presented in time of avoidance, and had been disturbed 
 by his feoffor or other, and had proceeded by law, he might have 
 recovered the advowson. But since he did not do so, the right 
 remains with the donor. Et sic nota, quod actio alienari non 
 potest.' (Note in MS. N.) 
 
 1 The text here is ambiguous, and the previous sentence might 
 seem to show celi to be used in the nominative case. But the 
 meaning .is shown by the parallel places of Bracton and Fleta. 
 
 2 The sense appears to require ' last purchaser ; ' compare Brae. 
 243, Fie. 324 (2).
 
 II, *229.] OF THE WRIT. 481 
 
 deed of the confirmor or any of his ancestors, and 
 because the gift itself was never of any effect. And 
 therefore if the first donor presents, and the hist pur- 
 chaser also presents, whether he has a confirmation of 
 his purchase or not, the seisin shall be awarded by the 
 assise to the confirmor on accourtt of the seisin from 
 which he never parted, since it never began to attach 
 anywhere else. 
 
 5. But where the last purchaser in fact presents a clerk, 
 who is admitted on his presentation, and then it is aliened 
 from hand to hand, each purchaser being in seisin of the 
 presentation, and upon the avoidance of the church, both 
 the first donor and the last purchaser present, if both 
 bring this assise, let the assise be first taken of the last 
 seisin, and let no assise upon assise be afterwards taken, 
 but let the first donor proceed by writ of right upon the 
 property, if he thinks fit to do so ; and he may impute 
 it to his own negligence that he has lost his recovery 
 in the possession. 
 
 6. If a charter produced against this assise is denied, 
 let it be proved by the witnesses therein named, and by 
 the assise taken in the manner of a jury, unless he 
 against whom it is proffered is under age ; for an infant 
 in that condition cannot answer to any charter ; but to a 
 fine or other recognisance made *by his ancestor every 
 heir, of whatever age he may be, shall answer. 1 In 
 case of nonage, the assise shall be put off until age ; but 
 by advice of our court an annual pension shall be provided 
 
 1 ' Carta dedici poterit, finis vero dedici non poterit ; unde 
 minor ad fineni respondere cogetur.' (Note in MS. JV.) 
 3*
 
 482 BEITTOK [II, *229 I. 
 
 for such infant, to be taken until he is of age. But if 
 no charter is produced, the assise shall run forthwith, 
 although one of the parties be under age. So where a 
 fine or other recognisance made by the ancestor of any 
 of the parties is vouched, the assise shall not be stayed 
 by reason of the nonage of the heir. 
 
 7. If a charter only of an ancestor is produced, and 
 the same is denied, let it be proved ; and if it is ad- 
 mitted, but is objected against it that it is void and of 
 no force by reason of the subsequent presentation, and 
 the adverse party denies that there was any such 
 presentation after the making of the charter, let the 
 assise forthwith run in manner of a jury by the consent 
 of the parties upon this question, whether the donor who 
 brings the assise presented to the church, after lie made 
 the gift to such an one , which the charter witnesseth, 
 or not. 
 
 8. Again, it may be answered to the assise, that it 
 ought not to pass, because he who brings the assise, or 
 some of his ancestors, gave and aliened to the other 
 party, or to some of his ancestors, the whole of the 
 tenement in right whereof he has presented, with all 
 its appurtenances, 1 without retaining anything, Avhether 
 they were in possession of the presentation or not, and 
 without any exception or condition, or without any 
 
 1 ' Nota quod unum est dicere, Do tibi cum pertinentiis, et 
 aliud, cum omnibus pertinentiis, vel, cum pertinentiis sine ullo 
 retenemento ; quia per hoc quod dico, cum pertinentiis, aliqua* 
 possunt pertirientias transnmlari, et aliquae retineri.' (Note in 
 MS. N.)
 
 II, *230.] OF THE WRIT. 483 
 
 lease for term of life or years. 1 And this allegation 
 may sometimes be manifested by charter and by writ- 
 ings, which being produced in court, the assise shall 
 proceod, and if any of them be denied, averment shall 
 lie by the assise taken in form of jury, if the parties con- 
 sent thereto. Charter must always be produced be- 
 fore judgment given ; for afterwards they are not 
 admissible, except in certifications and attaints. 
 
 9. Again , it may be excepted against the assise, that he 
 who brings it hath not in hand any tenement to which 
 the advowson was ever appurtenant, inasmuch as he 
 lost such tenement by judgment, or by disseisin, 2 or in 
 some other way, and therefore, even if he has a right 
 in the tenement and in its appurtenances, yet he ought 
 first to recover the tenement to which the advowson be- 
 longs, which is the principal subject, before he has any 
 ground for presenting. And upon his point it is said 
 that, if any one has once recovered the presentation of 
 
 1 The sense requires, ' or leased it for term of life or years ; ' 
 compare Bract. 243, and Fie. 325 ( 2). 
 
 2 ' A man inherits a manor to which an advowson is append- 
 ant ; and is disseised of the entire manor. The church avoids. 
 The disseisee and disseisor both present. The disseisee brings 
 assise, and the disseisor Quare impedit. The disseisor shall re- 
 cover. Contra. The disseisor ought not to be in a better condi- 
 tion than a purchaser, but if a purchaser had purchased the 
 manor with the appurtenances, without special mention of the 
 advowson, the advowson had remained with the donor ; with 
 much stronger reason should it remain with the disseisee. Re- 
 sponsio. True it is, the disseisor is in a better condition quoad 
 hoc.' (Note in MS. N.)
 
 484 BRITTON. [II, *230 I. 
 
 a church by this assise, and there is another having a 
 greater right to it who demands the advowson, or the 
 tenement to which the advowson belongs, by writ ol' 
 right, and pending the plea the parson dies, still the 
 plaintiff has no right to present before he has deraigned 
 the advowson or the tenement in the plea of right. 
 
 10. The party may also except against the assise, 
 that neither he who brings it nor any of his ancestors 
 ever had any *rightin the advowson except for term of 
 life or other term which is passed. And if any woman 
 after the decease of her husband disturbs the presenta- 
 tion of the heir, who is warrant of her dower, and al- 
 leges that the presentation belongs to her by reason of 
 her dower which she has in the same vill where the 
 church is situate, thereupon purchases a writ of Quare 
 impedit against the same warrant, care must be taken 
 to observe in what manner her dower was assigned to 
 her. For if she has the third part of a vill with the ap- 
 purtenances in dower, and in virtue of this dower claims 
 the third presentation, the claim cannot be allowed, 
 unless she has some specialty which makes mention 
 thereof, as where the advowson has been assigned to her 
 in her third part ; for otherwise she cannot claim or 
 challenge anything, although the church be situate in 
 her third. And if she is endowed of the whole vill 
 entirely, with all the appurtenances without any 
 exception, than she has a right; but if the advowson be 
 excepted, she has no right. 
 
 11. If the bishop is asked to admit any clerk to a 
 presentation by parcels, as where a manor, to which
 
 II, *231.] OF THE WRIT. 485 
 
 the advowson of some church is appenclant, is aliened 
 by parcels to divers tenants, each of whom is enfeoffed 
 of his portion with the appurtenances, and all tho 
 tenants severally present to the church, when it becomes 
 void, the presentation of the ^tenant of the last remain- 
 ing parcel is to be taken, as before is mentioned. For 
 in such case the advowson, not being expressly aliened, 
 always remains with the portion retained. 
 
 12. If one presents to a church, and such presentee is 
 admitted, and another person raises a dispute by some 
 other clerk, and it is afterwards agreed between the 
 presenters that he who raised the dispute shall de facto 
 a second time present to the bishop the clerk already 
 instituted, and the bishop thereupon admits him in 
 prejudice of the right of the first presenter, and so this 
 clerk remains instituted all his lifetime, having been 
 twice presented and twice instituted, and if upon a new 
 avoidance the person who presented last desires to 
 proceed by this assise, he ought not to be heard. For 
 presentation upon presentation at one turn and one 
 avoidance is of no force. 
 
 13. If any. one presents to a church, and before the 
 presentee is admitted, the presenter pending the pre- 
 sentation dies, and the guardian of the heir by reason of 
 the nonage of the heir and in right of the wardship 
 presents another clerk, and during the litigation be- 
 tween the clerks thus presented the heir becomes of 
 full age, and presents a third clerk ; in such case the 
 presentee of the heir is to be admitted to the 
 church.
 
 486 BR1TTOK [II, *231 I. 
 
 14:. If a woman endowed of an advowson presents 
 her clerk, who is admitted, and the heir who is the 
 warrant of her dower makes a gift of the advowson in 
 the lifetime of the widow ; and before the ^purchaser 
 has seisin of the advowson by presentation the widow 
 dies, so that the dower falls into the hands of the right 
 heir ; in such case the purchaser must get his purchase 
 renewed or confirmed; for until he can allege seisin, 
 he can never plead in the property. 
 
 15. If there are several parceners and heirs, some of 
 whom are under age and others of full age, and some 
 in seisin of their inheritance by their guardians and 
 some in their own names, and there is only one church 
 vacant, all ought to present thereto jointly, and to 
 consent in one clerk ; othewise the presentation shall 
 not take place so long as they disagree, and the bishop 
 when the time comes shall dispose of the church. But 
 if all are of age, and every one knows his several share, 
 then the presentation shalL go according as they shall 
 agree in the partition. Neither does the collation 
 belong to the bishop if every such parcener severally 
 presents his clerk, when they are all of age and have 
 made partition of their inheritance, 1 because in such 
 case the bishop could not admit the clerk of one with- 
 out prejudice to the other parceners. But it might be 
 otherwise, if one single person who had the entire 
 
 1 This clause, ' when they are all,' &c. , appears to have slipped 
 into the text by mistake. The sense intended appears to be, that 
 where of several parceners each presents his own clerk, the 
 bishop is not entitled to make his choice.
 
 II, *232.] OF THE WRIT. 487 
 
 right of presentation presented two or more clerks at 
 once, or one after the other. 
 
 *16. Whereas in respect of one avoidance and of the 
 presentation to one church several persons may be 
 plaintiffs upon different grounds, for two or more may 
 complain and bring this assise, and demand the pre- 
 sentation by title of succession as of the seisin of their 
 ancestors, or of their own presentation and a widow 
 endowed, or several widows, in right of their dower, or 
 of any manner of term of life or years according to the 
 different kinds of tenures, either by writ of Quare Iin- 
 pedit or Quare non permittit, or by reason that such 
 a widow holds part of the vill where the church is 
 situate, and therefore might present in turn, and upon 
 several other grounds, all these reasons should be 
 carefully examined in proper order, so that it may be 
 ascertained who has a right to the action and who 
 not ; and in the letters to be directed to the bishop 
 mention should be made of the proceedings in the case 
 of person. 
 
 17. When a widow in right of her dower has pre- 
 sented to any church, and her clerk is admitted by the 
 bishop, and the heir, who is the warrant of her dower, 
 afterwards grants away the advowson, and the church 
 being again void in the lifetime of the widow she 
 presents again, if her clerk is admitted, the right of 
 presentation is thereby reserved to the heir and to his 
 heirs ; and the grant will be ineffectual, and the charter 
 void for want of seisin. 
 
 18. When any one says, by way of defence to this
 
 488 BEITTOK [II, *232 I. 
 
 assise, that he who brings it cannot present by reason 
 of a gift and feoffment, and thereupon shows a charter, 
 if the charter and feoffment cannot be denied, the as- 
 sise is at an end, and the other shall retain his seisin r 
 when he is thus as it were in seisin after the gift and 
 making of the charter. *And if the charter and gift 
 are denied, let them be proved ; and if they are 
 proved, the plaintiff cannot further hinder the pre- 
 sentation. And if the donor acknowledge the char- 
 ter and the gift, and say that he afterwards 
 presented, as aforesaid, let this be inquired by 
 the assise, for his bare allegation is not to be believed, 
 nor any presumption alone, although he should 
 produce in evidence the letters patent of the bishop of 
 the diocese testifying that he admitted his clerk to that 
 
 / o 
 
 church. Nor need the assise in this case inquire con- 
 cerning the seisin of the donor ; for by acknowledging 
 the charter he has barred himself from the seisin and 
 from his presentation, when he is unable to show that 
 lie has presented after his gift or after the making of 
 the charter. 
 
 19. When the plaintiff counts of his own seisin or of 
 that of his ancestors, and says that he presented a certain 
 parson, who was admitted, and thereof puts himself 
 upon the jurors of the assise, if the jurors say that 
 they do not know who presented the last parson, or 
 the one before him, or if they say that they absolutely 
 know nothing thereof, in such case let the plaintiff 
 take nothing, but remain in mercy. 1 So, if in one vill 
 
 1 Bracton cites a case of the tenth year of Henry III. to show
 
 II, *233.] OF THE VERDICT. 489 
 
 there are two lords and diverse fees, and but one 
 church, and the jurors cannot say who last presented, 
 nor in whose fee the church is, or if the *ground on 
 which the church is built is common to both parties, in 
 such case the parties must be told to agree upon a par- 
 son, 1 or neither of them will take anything, but the 
 plaintiff shall remain in mercy, not for want of right, 
 but for want of proving his right. 
 
 CHAPTER V. 
 
 Of the Verdict and Judgment in Assise of Last 
 Presentation. 
 
 1. When the jurors are present in court, and the 
 parties have pleaded to the assise, if the jurors are not 
 rejected by the challenges of the parties, they shall 
 swear one after the other thus : ' Hear this, ye Jus- 
 tices, that I will speak the truth concerning this assise 
 of the church (or of the chapel), whereof by the king's 
 precept I have made the view, and that 1 will not fail 
 for anything to speak the truth, so help me God and 
 the Saints.' Then let the writ be rehearsed to them, 
 and the manner in which the parties have pleaded, so 
 far as necessary. 
 
 that in the above circumstances the parties without further writ 
 might proceed upon the proprietary right, which would be tried 
 by battle or the great assise. 
 
 1 Bracton says they should agree to present alternately.
 
 490 BRITTON". [II, *233. 
 
 2. When the jurors have spoken together, and are 
 agreed in their verdict, they may say that the plaintiff 
 presented the last parson, who is dead, to the aforesaid 
 church in time of peace, to wit, such a clerk by name, 
 who last died parson in the same church ; or they may 
 say, on the other hand, that he did not present the 
 last clerk, but that another, such an one by name, did 
 so ; or they may give all the reasons which the defor- 
 ceor himself might allege, if he were present, why the 
 presentation does not belong to the plaintiff, and show 
 that the other does not wrongfully deforce him, as 
 where the plaintiff or his ancestor after the last pre- 
 sentation aliened the advowson in some manner in fee 
 or for a term. 
 
 3. It is not sufficient for the jurors to say merely 
 that the plaintiff or his ancestor presented last, but 
 they must also declare how the deforceor has wrong- 
 fully disturbed the presentation. Likewise, it is not 
 enough to say ' wrongfully,' without saying that the 
 wrong was done to him who complains, since this 
 must appear before the plaintiff can take anything by 
 this assise, however useful the verdict might be to an- 
 other person having the right. Or they may say that 
 they know nothing of the fact ; and then they must 
 inquire who presented the next parson before, and so 
 from parson to parson as long as the limited time per- 
 mits. 
 
 4. If the jurors say that the plaintiff presented, then 
 judgment shall pass for him ; and if they say that his 
 ancestors presented the last parson but one , but they
 
 II, *233.] OF THE VERDICT. 491 
 
 know not who presented the parson who died last, still 
 let judgment be given for the plaintiff, unless there is 
 any reason to exclude the Justices from the presump- 
 tion that the plaintiff, who is right heir to him who 
 last presented, has the mere right by title of succession 
 But if the presentation was made before the time 
 limited in a plea of Mortdancester, the assise falls ; and 
 let the plaintiff proceed by writ of right, if he thinks 
 fit to do it. And if the jurors are undecided and in 
 doubt, then let the seisin remain where it is, and the 
 plaintiff in mercy. The like where the jurors have no 
 knowledge of the person of the plaintiff, or although 
 they have some knowledge of him, yet they do not 
 know for certain whether he is the next heir of the 
 ancestor who last presented or not. 
 
 5. If any one has once recovered seisin of a presenta- 
 tion by this assise, and he against whom he has recov- 
 ered proceeds to demand the advowson by writ of 
 right, and pending the plea the church becomes void, 
 and both of them present, the presentee of the person 
 who recovered by the assise ought to be admitted, 
 saving to the plaintiff his right in the property.
 
 BUITTON. [II, *233 b. 
 
 CHAPTEK VI. 
 
 Of the Action of the Quare impedit. 
 
 1. Not all those to whom an advowson belongs have 
 an action to demand it by the assise of last presentation, 
 either in virtue of their own presentation or of the 
 seisin of their ancestors, as hath been explained in 
 treating of the assise of last presentation. For there 
 are some who purchase advowsons of churches and a 
 right to present by good titles, as by title of gift in fee or 
 for a term, or by judgment in our court ; also by dissei- 
 sins and by intrusions in the tenements to which the 
 advowsons are annexed, and in many other ways, 
 whereby if such churches become void, and the pur- 
 chasers present thereto and are disturbed, they can 
 have no remedy by the aforsaid assise. For the writ 
 of last presentation is a writ of possession, and such 
 purchasers cannot count of their possession. And 
 therefore the writ of Quare impedit was provided as a 
 remedy for such purchasers; which writ is plead able 
 by summons, attachments and distress. 
 
 *2. The force of this writ lies wholly in the trespass 
 of the tortious disturbance. Therefore where any one 
 having a right to present by a good title desires to 
 present, and another who has less right interposes a 
 disturbance by presenting another clerk or in any
 
 II, *233 1.] OF QUAEE IMPEDIT. 493 
 
 other manner, if he who is thus disturbed cannot count 
 of his own seisin or of the seisin of his ancestor, then 
 this writ of Quare impedit properly lies, which is as 
 much as to say, wherefore the disturbor wrongfully 
 sets his foot in that right which the plaintiff has in the 
 presentation, and whereof, although he was never 
 fully seised of the possessory right, he is seised of the 
 property by title of good purchase ; and therefore tho 
 disturbing him is equivalent to ejecting him from the 
 whole, and is equally injurious ; and thus remedy lies 
 by this writ. 
 
 3. But if the plaintiff presentor has no sort of seisin 
 either of the possessory right or of the property by 
 any colour of tenure of tenement, or other title in his 
 right, there can be no setting foot wrongfully, be- 
 cause he has no right upon which a man can set his 
 foot either rightfully or Avrongfully ; and in this case 
 the Avrit of Quere impedit does not properly lie, but 
 that of Quod permittat. This writ of Quod permittat 
 also lies in the person of a purchaser against his 
 feoffor, if he disturbs him in using his seisin of the 
 advowson which he has given to him. 1 
 
 1 The above section is a perverted paraphrase of Bracton , 
 whose text, as printed, is somewhat obscure, but appears to 
 mean, that where the plaintiff had not had seisin and did not 
 claim property, but only an usufructuary or possessory right, 
 his remedy was by Quare non permittit ; so that if the plaintiff 
 or his ancestor had had actual seisin by a former presentation, 
 liis remedy was by assise of Darreign presentment ; if he claimed 
 the advowson, and had not had seisin by himself or his ancestor,
 
 494 BRITTOK [II, *234. 
 
 4. When the parties have appeared in court, the 
 *disturbor may say that he has a right to disturb the 
 plaintiff, by reason that he and his ancestors have 
 always presented, so that he is seised both of the one 
 right and the other. Or he may say that he has not 
 wrongfully disturbed, because he holds the tenement, 
 to which the advowson is appendant, with all its ap- 
 purtenances, by sale of the plaintiff or his ancestor, or 
 by some other title, as by release, quitclaim, or other- 
 wise. 
 
 5. And when any one, who has lost the right to the 
 presentation by judgment, or any other person who 
 has not any right presents, and causes the clerk who 
 has already been instituted to be summoned to answer 
 why he disturbs the plaintiff from presenting, the clerk 
 may say that the plaintiff ought not to present save in 
 time of vacation, and that the church is full and pro- 
 vided, wherefore he ought not now immediately to 
 
 o */ 
 
 present. And if the plaintiff say, that the church is 
 void, the court shall be certified thereof by the or- 
 dinary of the place ; and according to the bishop's 
 return the plea shall be determined. 
 
 6. One clerk may wrongfully molest another after 
 he has been instituted, and after his patron has made 
 good his right of presentation by judgment of our 
 court. Anil because such molestation is prejudicial to 
 our dignity, and tends to defeat that which has been 
 
 his remedy was by Quare impedit ; if he claimed only a posses 
 sory right as tenant in dower or by the curtesy, his remedy was 
 by Quare non permittit. See before, c. 4. s. 16.
 
 II, *234/>.] OF QITAEE 1MPEDIT. 495 
 
 legally done in our court, we will that such as are so 
 troubled be aided by us and by our prohibitions, and 
 by attachments in pursuance thereof, as well to the 
 judges, that they hold not such plea, as to the parties, 
 that they do not prosecute the same. 
 
 7. The bishop also pending the plea in our court 
 may wrongfully incumber the church by his clerk 
 within the six months. *Therefore if any one be ap- 
 prehensive of this, let him purchase our writ of pro- 
 hibition to the bishop that he do no such thing, or that 
 he do not admit any clerk upon the presentation of 
 any until the plea pending in our court be concluded, 
 and in particular within the period of six months ; 1 
 
 And if the bishop acts contrary to our prohibition, 
 an attachment presently follows. And if he does not 
 admit the clerks presented pursuant to our mandate, 
 let him be immediately summoned to answer why he 
 has not done so. 
 
 1 These words, which are derived from Bracton or Fleta, seem 
 to imply some uncertainty as to the bishop's right to present by 
 lapse where the suit is undetermined at the end of the six months. 
 It has been held in later times, that if he is not a party to the 
 action of Quare impedit. he may present by lapse. Consequently 
 it is now the universal practice to make the bishop a party. See 
 Lancaster v. Lowe, Croke's Reports, t. Jac. 93 ; Blackstone's 
 Comm. vol. iii. p. 247. ' The bishop shall present in all cases, 
 where there is disturbance and the king does not write to the 
 bishop to certify him of the right patron within the term of six 
 months. Which may be for diverse reasons ; either because the 
 court cannot take cognizance thereof so soon, or because the 
 plea cannot be ended so soon, or cannot be ended at all for want
 
 496 BRITTOK [II, *235. 
 
 CHAPTER VII. 
 
 Of the Assise of Utrurn. 
 
 1. The fourth assise is that of Utrurn, which par- 
 takes very much of both rights, because both are deter- 
 mined by it. For after judgment in this assise there 
 is no recovery except sometimes by attaint. By this 
 assise recognisance is made whether the tenement, 
 whereof the plea is brought, be the lay fee of the 
 tenant or f rankalmoigne belonging to the church of 
 the plaintiff, whether the clerk or the layman be 
 plaintiff. 1 For the assise may well lie at the suit of 
 either, yet not of all clerks, but for such only as are 
 parsons and rectors of parochial churches instituted 
 therein by bishops or other ordinaries, *and also for 
 canons in cathedral churches, and abbots and priors 
 who have churches appropriated to their use, and are 
 in the position of parsons; and this, although they 
 
 of proof of right ; and although the court may certify, yet the 
 collation belongeth to the bishop where there are several per- 
 ceners, and they cannot agree.' (Note in MS. N.) 
 
 1 Bracton informs us, it had been at one time decided that this 
 assise could only be had upon the plaint of the parson, but its 
 extension was considered advisable, as it offered a means of 
 avoiding the delays of a writ of right, and the decision by battle 
 or great assise. Brae. 285 b.
 
 II, *235.] OF THE ASSISE OF UTRUM. 497 
 
 have only moieties by reason of there being divers fees 
 and divers patrons, for which moieties each patron 
 may severally plead and be impleaded ; though it 
 would be otherwise of a thing held in common between 
 them. And if any church is given to two parsons bv 
 one patron, neither of them can plead or be impleaded 
 by this assise without the other. 1 
 
 2. The "Writ of Utrum in favour of the clerk was 
 provided as his writ of right, because he could not 
 count by descent in the right. Thus, it is of the nature 
 of a plea of right, and therefore they are limited by 
 the same term. 2 The proceedings in this writ are 
 similar to those in an assise of last presentation. Never- 
 theless the tenant may vouch to warranty. 
 
 1 ' There are sometimes two parsons, or more ; and this by 
 reason that it was the original ordinance of the first patron, or 
 because the church is founded upon divers fees, whereof each 
 lord is patron and advocate of his own lordship.' (Note in MS. 
 JV.) Half-churches, and smaller fractions of churches, occur 
 frequently in Domesday -book. Compare before, c. 3. s. 8. 
 
 2 It was said by Brumpton, Justice, in the Cornish Iter, 30 
 Edw. I., that the right of action in this writ was not barred by 
 prescription of time. Year Book, 30 Edw. I. p. 207. 
 
 32
 
 498 BRITTON. [II, *235 k 
 
 CHAPTER VIII. 
 
 Of Exceptions in the Assise of Utrum. 
 
 1. The tenant may aid himself by his general and 
 dilatory exceptions. And if the layman is tenant, he 
 may plead that the church was never seised of the 
 tenement demanded : and that, although it were at any 
 time seised, yet the plaintiff cannot recover anything 
 therein, for he hath received fealty and service for the 
 same tenement ; and if this be verified or not denied, 
 *the assise shall fall at least for the parson's life. For 
 in this case the taking of fealty bars the action, as in 
 other cases the taking of homage, because homage ex- 
 cludes the demesne. The assise is also at an end if his 
 predecessor aliened the ton em en t in fee to a layman, 
 who has since obtained a confirmation of thefeoffment 
 from the bishop of the diocess and the patron. 
 
 2. The assise also fails as to any kind of tenements 
 given to cathedral or conventual churches, if the writ 
 be purchased of such a tenement, because such persons 
 have the same remedy as laymen ; but in gifts made to 
 parochial churches the parsons are not included, and 
 therefore this writ lies only for them. In respect how- 
 ever of their own seisin, if they are ejected or disturbed, 
 they shall have remedy by assise of Novel Disseisin ; 
 and by writ of Entry upon a disseisin done to their
 
 II, *236.] OF UTRUM. 499 
 
 predecessor as long as the time will admit. The assise 
 likewise fails, if the tenement be demanded in demesne 
 where the church was never seised but of the seignory. 
 So in some cases on account of a condition comprised 
 and contained in the feoffment by which the church 
 was enfeoffed. 1 
 
 3. When a layman complains against a clerk who is 
 a parson, he does so either by a possessory writ by 
 descent from some ancestor or by writ of right. If by 
 a possessory writ, then the process between them shall 
 be the same as it would be between other persons. If 
 by writ of right, then the clerk has either a * warrant 
 or not. If he has a warrant who will warrant to him, 
 let the proceedings be carried on between the demandant 
 and warrant as in a writ of right by battle or great 
 assise or otherwise, as between any other persons. If 
 he has no warrant, but defends the action, and answers 
 for himself, in such case he has a double remedy by 
 reason of the writ of right, and he may choose which- 
 ever he will ; either he may put himself upon a jury, 
 whether the land demanded be frank-almoigne, &c., 
 or lay fee, just as if the layman had brought an assise ; 
 not that the proprietary cause is thus turned to a pos- 
 sessory one, although the jury tries and determines 
 both rights, or he may defend himself by battle or 
 
 1 The nature of the condition alluded to is more fully explained 
 in Bracton. It was not uncommon for a layman to enfeoff a 
 church on condition of being re-enfeoffed to hold of the church ; 
 and thus to make the land feudally subject to the church in order 
 to obtain its protection. (Brae. 286 6. )
 
 500 BRITTON. [II, *236 I. 
 
 the great assise, if permitted by the authority of the 
 ordinary and the consent of the patron. 
 
 4. Where a layman brings this assise, the clerk may 
 answer and plead, that the ancestor of the plaintiff 
 was never seised. And if he demands in demesne what 
 he ought to demand in service, the assise falls, as be- 
 fore is mentioned in the case of a plaint by a clerk. 
 And if the tenement was aforetime held of the church, 
 and the plaintiff or his ancestor forfeited it by some 
 judgment of felony, in such case the tenement is es- 
 cheated to the church, and the exception of felony 
 holds. Again, if the tenant dies without heirs, the 
 tenement will also escheat to the church by reason of 
 the mere right, which takes refuge and shelter there 
 ~*for want of finding any other place where it may de- 
 scend. But if the church, or the parson in its name, 
 has received nothing from the tenement except a pay- 
 ment by way of alms, nothing can thereby escheat to 
 the church. 
 
 5. When the parties have pleaded to the assise, or 
 when the assise is awarded by default of the tenant, 
 
 .and re-summons is proved, or when the assise is de- 
 manded by reason of the contumacy of the tenant, 
 having been seen in court by record of the Justices, if 
 the jurors of the assise are present, and none of them 
 is challenged, or, if they be, after the challenges of the 
 parties have been tried, let them straightway be sworn 
 in these words : ' Hear this, sirs Justices, that I will 
 speak the truth of this assise, and of so much land with 
 the appurtenances in TsT., whereof I have made the
 
 IT, *237.] OF UTRUM. 501 
 
 view by the king's precept, whether the aforesaid land 
 with the appurtenances is frank-alraoigne belonging to 
 such a church, whereof the plaintiff is parson, or lay 
 fee of the tenant' (or the reverse if the layman be 
 plaintiff), ' and will not upon any account omit,' &c. 
 Afterwards let them be instructed and informed upon 
 what point they are to certify the court. And let 
 judgment be given according to the verdict. And 
 when the assise has once passed in favour of the lay- 
 man after the manner of an assise, and the tenement 
 is adjudged to the lay plaintiff, the clerk shall never 
 have any recovery but by attaint, the form of which 
 will appear in the following chapter. 
 
 *CHAPTER IX. 
 
 Of the nature of an Oath, and of the process of Attaint. 
 
 1. An oath is an affirmation or denial of anything, 
 whereby a person is charged upon peril of his soul to 
 speak the truth ; and it was provided on account of 
 people difficult of belief that oaths should be taken 
 upon the Holy Gospels of God for avoidance of idolatry. 
 Oaths were instituted that men might thereby do good 
 service ; for by means of an oath many crimes are 
 convicted and punished, and many a man doth by an 
 oath great good and great service to his neighbour. It 
 was likewise provided that one should swear by God 
 and not by his creatures, or his members, to avoid the 
 sin of blasphemy, and that none should swear but with 
 an intention of doing service by the oath, upon nee-
 
 502 BIUTTOK [II, *237 5. 
 
 essary and just occasions. An oath therefore is allow- 
 able when the conscience within agrees in every point 
 with the lips, without any addition or abatement ; and 
 if there be any disagreement, it is perjury. 
 
 2. If any one wilfully perjures himself in obedience 
 to his superior, both of them are to be punished with 
 the same penalty. And he who causes or procures an- 
 other to take an oath well knowing that he swears 
 falsely, as well as he who knowingly admits such a 
 false oath, is in relation to God a homicide, although 
 
 ..^^^^^^^ .. . .... 7 O 
 
 he do not kill the body, but is partner in the *felonv, 
 forasmuch as he knowingly destroys the soul of him 
 who at such peril takes the oath ; and they consequently 
 destroy their souls who are consenting. The like is 
 
 v 
 
 true of him who is present and hears the oath without 
 speaking and reprehending it. Perjury is a lie affirmed 
 by oath. A person may be guilty of this sin in three 
 ways ; first, where he who knows or believes a thing 
 to be false affirms it by his oath to be true ; secondly, 
 where one is deceived and thinks a thing to be true 
 which is false, and declares it upon his oath ; thirdly, 
 where he who says upou his oath that something is 
 true, which in fact is so, yet in his conscience believes 
 it to be false, as when the Jew swore that Saint Mary 
 was the mother of the Son of God. A lie is a false 
 expression of the voice with an intent to deceive ; and 
 this sin is so poisonons that no one ought to be willing 
 to lie, even to ransom another person's life. 
 
 3. Of oaths some are promissory respecting the 
 future, and of such oaths there are three kinds. The
 
 II, *238.] OF ATTAINT. 503 
 
 first is where any one promises by an oath that he will 
 <lo or assist in something which ought not to be done, 
 as feloniously to kill a man ; and such an oath ought 
 not to be kept. The second is where a person swears 
 that he will do something which he may lawfully do, 
 and this solemnly, but without necessity or reason, and 
 in so doing he is guilty of sin. The third kind of swear- 
 ing is that which proceeds from a levity in talking and 
 from a bad habit; this kind of swearing is sinful, but 
 less so than the former. *But of these three kinds of 
 oaths we shall not speak in this chapter ; for they are 
 not subject to any earthly attaint, nor is any oath ex- 
 cept that of assertion, which relates only to time past or 
 present. 
 
 4. Therefore if it happens that the jurors in any 
 petty assise have taken a false oath, they may on the 
 complaint of the losing party in the assise be attainted 
 in several ways. Sometimes upon the oaths of twenty- 
 four jurors, sometimes by their own acknowledgment 
 upon examination by the Justices, and sometimes by 
 their repentance and of their own free will ; and in the 
 last case there is room for mitigation and mercy. There- 
 fore when anyone desires to attaint any jurors, it must 
 be seen how many and what jurors were open upon the 
 assise, so that each juror may have two attainors at least ; 
 but if there be more, it is no harm. It is also proper that 
 they be of equal or better conditions than the jurors. 1 
 
 1 The attainors ought to be persons of better condition than 
 the jurors ; and therefore the writ says : Summone xxiiii. milites ; 
 whereas it is said in the writ of assise : summone xii. legates 
 homines.' (Note in MS. N.)
 
 504 BKITTOK [II, *238 J. 
 
 5. Of this offence sometimes the Justice is guilt v 
 
 O v 
 
 and sometimes the jurors. But whoever is in fault, 
 credit must always be given to the enrolment of the 
 record of the Justice until it be altered by judgment. 
 Therefore in the first place, before the attainors are 
 summoned, the proceedings and record of the Justice 
 should be examined ; for if he only is found to be in 
 fault, it is not to be imputed to the jurors, nor the re- 
 verse. ^Therefore after examination of the record, and 
 not before, it may be immediately seen whether the 
 assise was taken as a jury, or as an assise. If it wns 
 taken by way of jury, then every one may have remedy 
 by attaint ; if by way of assise, then an attaint lies only 
 for these persons and their heirs who were seised in 
 their own names, and not for those who were seised 
 in the name of others, as villains, termors, bailiffs, or 
 guardians. 
 
 6. It is not the duty of all Justices to take attaints 
 or certifications. For it belongs to those Justices who 
 took the verdict of the assise, to take certifications, so 
 as they do it before they are removed from their office. 
 But it belongs not to those Justices who took the re- 
 cognisance of the assise to take attaints after judgment 
 given ; because we have reserved the amendment of 
 judgments for our own jurisdiction. But if the Justices 
 at the taking of any assise are required before judgment 
 given to attaint the jurors of the assise, they may im- 
 mediately, 1 upon security and pledge of the partv, 
 cause the jury of twenty-four attainors to be taken if 
 
 1 See the note to chap. xi. s. 2, below.
 
 IT, *240.] OF ATTAINT. 505 
 
 they are present, as well as upon a certification. For 
 since the full power is given them to hear and deter- 
 mine the whole matter, *they are authorized to acquaint 
 themselves with every thing necessary to clear the way 
 to their judgment. And where certification or attaint 
 is accessory to the assise, and the Justices see that 
 without certification, or without attaint, they cannot 
 proceed to judgment to determine the assise, it appears, 
 and true it is, that it belongs to those who have full 
 jurisdiction to determine that assise, to take such at- 
 taints and certifications, provided it be presently done ; 
 for if not, this duty does not belong to them, neither 
 ought this authority to be granted to them. 1 
 
 7. Although it is contained in the Great Charter of 
 liberties that some assises shall be taken in counties, 
 yet it shall not be understood that certifications and 
 attaints must likewise be taken there. For that is not 
 necessary except in cases where no authority is given 
 but upon the assise. But if any Justice be assigned 
 with fresh power to take an attaint or certification* 
 then it will not be necessary by virtue of that statute 
 to take it in the same county. For assise, certification, 
 attaint, and jury differ in their privilege and nature. 
 
 8. When the attaint is brought, the verdict of the 
 assise ought to be thoroughly examined, in what 
 
 1 ; When the Justice, out of favour for one party, allows a 
 false verdict to pass, how shall the falsehood be punished ? 
 Responsio. Either by the Judge himself, by resummorring the 
 parties, or by another Justice ; and this by attaint, or by bill to 
 the king's council.' (Note in MS. N.)
 
 506 BETTTO'N. [II, *240 I. 
 
 manner the twelve jurors pronounced their verdict. 
 For jurors sometimes swear falsely with full knowledge 
 of what they do ; and then are more openly perjured 
 and are more severely to be punished than those who 
 are forsworn through some indiscretion. *For some 
 persons lie openly, when conscience does not rest in 
 their thoughts. Others swear falsely, and lie through 
 a foolish hastiness, which does not come directly from 
 their thoughts, as in the case of those who pronounce 
 their verdict before they have thoroughly examined 
 their thoughts, and these are less punishable than such 
 as perjure themselves with malice afore-thought against 
 their conscience. And some are forsworn by a foolish 
 verdict, not being, aware of it on account of a pre- 
 sumption that appears true, but is not so; and if they 
 can make it plainly appear how they were deceived, 
 some extenuation should be had as to their punishment, 
 but not as to the redressing of their judgment. 
 
 0. Where the jurors have said too little for want of 
 examination by the Justices, or have given their 
 verdict too obscurely, or have not answered fully, as, 
 if they have concealed any part of the truth, being in- 
 duced thereto by some mistake, in such case the better 
 remedy is by certification than by attaint, that by such 
 certification the jurors may render certain what is un- 
 certain, and reduce to truth what was doubtful and 
 erroneous. But if the record is not found defective or 
 insufficient, but full and sufficient, then there is no 
 room for certification ; for the jurors cannot gainsay 
 or challenge the record.
 
 II, *24L] AK ATTAINT LIES. 501 
 
 ^CHAPTER X. 
 
 In what cases an attaint lies, 
 
 1. In the examination of every record, before the 
 attaint is granted or takes place, it must be carefully 
 observed whether the assise passed in form of assise 
 upon some material point in the writ, or by way of 
 jury, and whether it was taken in the presence of the 
 tenant or not. And if it passed upon any exception, 
 then it must be seen whether the exception was dilatory 
 or peremptory ; and if peremptory, whether peremptory 
 of the writ only, and not of the action, by reason of 
 some mistake in the name of a vill or of a person, whicli 
 does not affect the assise, or peremptory of the assise 
 as well as of the writ. In the former case attaint does 
 not lie, although the verdict of the jurors may have 
 been mistaken or false, on account of the assise and the 
 action remaining entire. In the latter case, as, where 
 any person demands by the assise a tenement where 
 he ought to have demanded a rent, if the jurors find 
 for the plaintiff, an attaint lies by reason of the falsity. 
 
 2. If the writ is suitable and good, the plaintiff must 
 offer to prove the whole of his case by the jurors of the 
 assise ; and where the tenant consents, and straight- 
 way puts himself on the assise, if the jurors make a 
 false verdict, it is a proper case for attaint ; as if they
 
 508 BEITTON. [II, *241 ft, 242, 
 
 *find that the tenant disseised the plaintiff, where he 
 did not disseise him at all. Sometimes also an attaint 
 may be brought upon their verdict as to matters 
 which touch the substance of the assise, as where they 
 find that the tenant hath disseised the plaintiff of his 
 freehold, whereas he never held except in villenage, 
 and in like cases. It lies also upon a point of their 
 verdict concerning some exception, although not con- 
 cerning the action or the assise, where the verdict does 
 not pronounce simply, but adds a reason, as that the 
 plaintiff could not have a freehold, because he is a vil- 
 lain, and holds the tenement in villenage, whereas this 
 is false, because the man is free and holds freely, and 
 in the reverse case ; if this plaintiff can afterwards by 
 four-and-t \venty jurors prove himself to be free, and 
 that the first jurors gave a false verdict, attaint lies, 
 because the assise was charged with the substance of 
 the plaint, and not with an incidental matter for a 
 
 3. If the plaintiff had simply denied the exception 
 of the tenant, and said that he was free, and was ready 
 to verify the same by the jurors of the assise, in such 
 case, whether the proof were made against the plain- 
 tiff by the jurors or by evidence of suit of kindred or 
 not, although the jurors gave a false verdict, yet no 
 attaint would lie, because the parties of their own 
 consent put themselves *upon their verdict, as upon a 
 jury, to prove the exception ; and whether they find for 
 or against the plaintiff, yet his condition is not ren- 
 dered better or worse or in anywise altered by their
 
 II, *242 b.} AN ATTAINT LIES. 509 
 
 verdict. In such cases the proof always lies upon the 
 tenant ; and if the plaintiff in answer to the exception 
 of villenage says that he is free, still it lies on the ten- 
 ant to prove his exception, unless the plaintiff chooses 
 to prove the negative ; and if no suit be brought of the 
 kindred of the plaintiff to make good his exception, 
 then of necessity it must be proved by the jurors. 
 
 4. Although the tenant should tacitly admit the 
 declaration of the plaintiff, yet the assise may be 
 stayed by some exception, as by setting up some deed 
 against the plaintiff, such as his writing of covenantor 
 some condition or other title. And if the tenant offers 
 to aver this writing to be the deed of the plaintiff or of 
 his ancestor whose heir he is, and this is either verified 
 or not denied, the assise and the action fall. And if 
 the deed is denied, in that way the assise and the action 
 are brought at an end, and a new plea begins upon the 
 proof of the covenant. This may be proved in several 
 ways; sometimes by the deed and the witnesses therein 
 named, and sometimes where there is no charter, by 
 the jurors of assise, and this will be done in the form 
 of a jury, if the parties "^consent, and then no attaint 
 will lie ; and if the plaintiff will not consent, let him 
 take nothing by his plaint, and if the tenant refuses, 
 let him be treated as without defence. 
 
 5. The same reason holds in the exception of villen- 
 age ; for in such case the tenant must prove the villen- 
 as:e, and according as the proof turns out for or against 
 the plaintiff the action will be determined. Yet when 
 the tenant alleges that the plaintiff is his villain, it is
 
 510 BIUTTON. [II, *243. 
 
 not necessary to prove the exception by the kindred of 
 the plaintiff ; for such proof, if made against the lord, 
 might be prejudicial to him and would afford the 
 plaintiff a strong exception in a plea of Naifty, if 
 ever the lord chose to claim him as his villain. 1 But 
 if the lord is sure that the proof will be made against 
 the villain, that he was his astrer, 2 reseant in his villen- 
 agre. and he in seisin of him, with his chattels and 
 
 D 9 ' 
 
 his suit, as of his villain within the year, in such case 
 the proof may well pass by the kindred and by the 
 jurors of the assise, and thus, if the plaintiff consents, 
 both the status and the assise will be determined. 
 
 6. But if the plaintiff says that he is free and of free 
 condition, and demands award and judgment, whether 
 he ought to put himself concerning his condition upon 
 the assise, before full restitution of all his goods move- 
 able and immoveable, in such case the asssise shall 
 cease, and the tenant will be forced to proceed by writ 
 of Naifty, supposing that the villain is a run-away, and 
 not to be found within the lord's fee. *And if the ex- 
 ception of villenage be tried and proved by the assise 
 by common consent of the parties, yet such proof shall 
 not be prejudicial to the condition of the plaintiff, 
 neither does any attaint lie. For the effect of the ex- 
 ception is not to prove the plaintiff a villain, but to bar 
 
 1 This agrees with Fleta, p. 337. It would appear from Brar- 
 ton, that the objection to the proof by suit of kindred, where the 
 alleged villain was not actually in his lord's seisin, was rather 
 founded upon consideration for the villain than for the lord. 
 (Brae. 290.) 
 
 2 See before, p. 456, note.
 
 II, *243 &.] AN ATTAINT LIES. 511 
 
 him from taking anything by his plaint. And thus it 
 appears that in these two exceptions of covenant and 
 of villenage the assise remains entire, although it be 
 altered by some collateral matter determined by jury. 
 7. Where the assise is taken in the absence of the 
 tenant, or if he is present and alleges no cause why the 
 assise ought to be stayed, but forthwith puts himself 
 thereupon, in such case, whether the jurors find for the 
 one party or the other upon the points of the writ, 
 supposing they find what is false, or if they say that 
 there was a covenant, as aforesaid, where there was 
 none, or that the plaintiff is the villain of the tenant, 
 when he is free, or that he is a bastard, when he is 
 legitimate, or other like thing, in all these cases an 
 attaint will lie. And whereas the substance of the 
 original writ ought to be contained in the writ of 
 attaint, it follows, and it is true, that an attaint does 
 not properly lie except upon the points of the original 
 writ. 
 
 *CITAPTER XI. 
 
 Of the Excuses of Jurors in mitigation of Attaint. 
 
 1. "Where the tenant is absent at the taking of the 
 assise, the jurors are then more liable to err, inasmuch 
 as they are not instructed by any one how to find for 
 the tenant ; and if they should forswear themselves, 
 a probable error ought to excuse them in the attaint, 
 so that they may be spared the penalty either in part 
 or entirely, according as the error has been gross or 
 slight, rightful or colourable.
 
 512 BRITTON. [II, *244 
 
 2. Attaint never lies in the great assise, because the 
 tenant puts himself thereon by his own election. But 
 in petty assises there is frequent occasion for it. Many 
 oaths are taken upon which no attaint lies, as an oath 
 taken by one man alone to another, for in that case 
 vengeance belongeth only to God. Moreover no attain t 
 lies upon the verdict concerning damages, 1 nor in certifi- 
 cations, nor in purgations, nor in defences by wager of 
 law against the suit produced by the plaintiff, nor gen- 
 erally in inquests or juries, except by our special com- 
 mand. 
 
 3. With respect to jurors, in order that the punishment 
 upon attaint may be mitigated, it must be observed 
 whether the error be patent or secret ; for if it be secret, 
 as it frequently happens in contracts made secretly 
 between the parties where two or three only are privy 
 to it, *in such case the jurors, from their ignorance of the 
 contract, may be easily mistaken, and such error is 
 excuable. But of a thing done openly, so that the 
 greatest part of the country knows it, an error is not 
 excusable. 
 
 4. Where the jurors relate the whole truth of the 
 fact just as it happened, and judgment is given accord- 
 
 1 So Bracton and Fleta say that an error in damages is not a 
 case for attaint, but for certification by the jurors. But in the 
 Cornish Iter, 30 Edw. I., Bei'ewick, Justice, being dissatisfied 
 with the verdict of an assise upon the point of damages, warned 
 the jury, that there might be an attaint as well for the damages 
 as for the principal matter, and that immediately, without is- 
 suing a writ out of the Chancery. (Year Book, 30, 31 Edw. I. 
 p. 124.) As to the immediate attaint, see before, c. 19. s. 6.
 
 .] AN ATTAINT LIES. 513 
 
 ing to the verdict, i I' error be found in the judgment, the 
 Justices are in fault for the folly of their judgment 
 rather than the jurors for any false oath. Therefore 
 the Justice must needs make diligent examination into 
 every verdict, whereby matters which are doubtful 
 or erroneous may be reduced to certainty and truth. 
 And if any difficulty arises in giving judgment, it is 
 needful to advise with one more learned. For it is 
 safer for a Justice to be in some doubt as to all matters 
 than to be too confident in his own opinion ; and re- 
 pentance often follows upon rash counsel, and still 
 oftener upon rash judgment. 
 
 CHAPTER XII. 
 Of the Trial and Judgment in Attaint. 
 
 1. The writ of attaint being obtained, and the party 
 summoned, he has a right to be essoined at the day. 
 And when the parties on the second day are present in 
 court, but the attainors are not, let another day be 
 given to the parties, and the attainors *be required to 
 lind security and pledges to appear at the same day. 
 And if the party summoned makes default, let him be 
 attached to be there some other day. And if the 
 plaintiff makes default, and the party attached or sum- 
 moned offers himself, the Avrit falls, and the jurors 
 shall go without day, and the plaintiff and his pledges 
 to proscute remain in mercy. 
 
 2. When the parties, the jurors, and the attainors 
 33
 
 514 BKITTON. [II, *245. 
 
 are present in court, and the party summoned or 
 attached alleges no exception why the attaint ought 
 not to pass, then in the first place let the record of the 
 assise be heard, to wit, how it passed. Next, let the 
 plaintiff be asked in what points the jurors of the assise 
 are perjured, whether in the articles of the writ, or 
 upon some exception, such exception not having been 
 put forward by the tenant, but only by the jurors of 
 the assise in their verdict, when they were charged to 
 find upon the whole matter of the assise. Thereupon 
 let the attainors be charged by their oath to speak the 
 truth ; and the oath whereby they shall be charged 
 shall not be the oath of assise, but the oath of jury. And 
 after they are sworn, let the form of the plaint be 
 forthwith shown to them, and upon what points they 
 are to speak the truth ; as for instance, whether he who 
 complains has been wrongfully disseised or not. And 
 let them be informed of the plaintiff's case. 
 
 *3. When the jurors are returned, and are ready to 
 give in their verdict, their reasons ought to be strictly 
 examined, so that manifest truth or presumption at 
 least may be on their side, and their verdict grounded 
 on probable reasons ; and according thereto let judg- 
 ment be given. For sometimes they may be as easily 
 deceived by some probable error as the first jurors, and 
 thus for want of good examination by the Justices a 
 false judgment may be given. 
 
 4. If the attainors cannot agree in one opinion, let 
 them be afforced by others. And if they say that they 
 know nothing of the fact, or that they are in doubt, so
 
 II, *245 b.] OF THE TRIAL. 515 
 
 that they cannot fully declare the truth, let the posses- 
 sion remain undisturbed. So, if they are agreed, and find 
 against the plaintiff in the same way as the jurors of 
 the assise, the possession shall remain as before, and it 
 shall be adjudged that the twelve made a lawful ver- 
 dict, and that the plaintiff be committed to gaol, and 
 there punished by imprisonment and fine. 
 
 5. If the last verdict is contrary to the first, it 
 follows that the first jurors will be attainted of a false 
 oath ; and it shall be awarded that the plaintiff recover 
 his seisin, and the tenant be in mercy, and that the 
 first jurors, if they are present, do for ever after lose 
 their free law, so that thenceforth they shall not be 
 credited upon any oath, and that their lands and 
 chattels be taken into our hand, and they be sent to 
 gaol, and there put to ransom. * And if they are absent, 
 it shall be commanded that they be taken. Some 
 jurors however may be sometimes excused with regard 
 to the loss of their free law, although they be not as to 
 the ransom, namely, those who through tenderness of 
 conscience before the exhibition of any plaint confess 
 they took a false oath by reason of some probable error, 
 and pray that they may amend ; and in such case, if 
 all the jurors pray to amend their verdict, the attaint 
 need not pass by writ, but the parties should be called 
 to reverse the judgment. 1 The jurors however are 
 
 1 ' Casus. A parson brings assise of Utrum against a lay 
 tenant. The twelve jurors, against their conscience or by a 
 misguided conscience, (ou de conscience blesmie,) say that the 
 land is frank-almoigne belonging to the church. The parson
 
 516 BRITTOK [II, -246. 
 
 punishable by simple fines only ; and if all the jurors 
 do not repent, yet those who do so shall have the bene- 
 fit of their goodness. 
 
 6. An attaint may be barred from passing in several 
 ways, as where judgment was never given upon the 
 proceedings in the assise, the Justices being divided ; or 
 although it was given, yet it \vasnever put in execution ; 
 or although it was partly put in execution, part of 
 it still remains to be performed. It is likewise often 
 stayed by agreement of the parties, and in that case 
 let seisin be executed by judgment according to the 
 record of the Justices. *It ought also to be stayed 
 where the fault is in the Justice, which mav be owing- 
 
 / o 
 
 either to a foolish judgment or to error in the enrol- 
 ment, or because the Justice would not allow the party 
 his reasonable exceptions or his reasonable challenges 
 of the jurors ; and in such cases the proceedings are to 
 be restored to the state they were in at the time of the 
 exception being put forward. An attaint ought like- 
 wise to be stayed where the plaintiff is tenant of the 
 tenement which lie lost, or of part of it, by his own in- 
 trusion, or by redisseisin, because he has lost his right 
 to recover by judgment a thing which has obtained by 
 his own force in despite of the law. 
 
 7. As an assise is not to be taken upon an assise, so 
 neither is an attaint to be taken upon an attaint, that 
 is, between the same persons, of the same fact, and of 
 
 takes possession. Then the jurors, except two who are dead, 
 come before Justices, and acknowledge of their own accord that 
 they made false oath. Quid juris?' (Note in MS. A 7 .)
 
 II, *246.] OF THE TKIAL. 517 
 
 the same thing. Yet two attaints may follow one 
 assise, as where the jurors ought to have given or 
 taken away the whole, when they gave or took away 
 part only ; * not however by different attainors, but by 
 the same jurors, to avoid the peril which might ensue 
 if there should happen to be a contrariety between the 
 different attainors. And although an attaint should 
 have once passed, yet the attainors may be aided by 
 certifications in the same manner and in the like cases 
 as in verdicts of assises. 
 
 1 In this case each party might complain of the verdict, and 
 therefore there might be two attaints. See Bracton, f. 295 b.
 
 BOOK V. 
 
 OF PLEAS OF DOWER, AND ENTRY. 
 
 ^CHAPTER I. 
 
 Of the Nature of Dower. 
 i. 
 
 MATRIMONY is no other thing than the union of a 
 woman with a man with the consent of both by 
 junction of Holy Church, to live together as one flesh 
 all their lives without expectation of separation. 
 Therefore it is expedient that married women should 
 be endowed, in order to give women the better dispo- 
 sition to love matrimony, although dower is prejudicial 
 to the lords of fees, that is to say, such dowers as are 
 incident to matrimony. Dower is that which a freer 
 man gives to his wife at the church door in regard of 
 the charge of matrimony, and by way of consideration 
 for the marriage, for support of the wife and nurture 
 of the children to be begotten, if the wife shall survive 
 the husband. 
 
 2. Dower is not assigned in all places nor at all times 
 but at certain, to wit, at the commencement of the con- 
 tract and at the door of the church only, with the 
 solemnity of witnesses and not in private. For as secret 
 marriages, performed in private, are prejudicial to
 
 TT, *247.] OF THE NATURE OF DOWER. 519 
 
 heirs with reference to the succession, so are they prej- 
 udicial to wives with respect to the recovery of their 
 dowers. The nature of dower then is such, that where 
 espousals are solemnized at the church in the presence 
 of the people, in such case and not otherwise dower 
 may be demanded. 1 *And if the marriage be in any 
 
 ' Every contract of marriage, at which there is present a 
 parish priest (prestre parochiel) and his clerk, is at the church 
 door, and sufficiently solemn ; for it is in facie ecclesice. And 
 because usage of dower is become law, a wife is sufficiently en- 
 dowed though her husband say nothing. But suppose that the 
 husband protests distinctly and solemnly at the time of the mar- 
 riage, that he does not intend that his wife shall be in any way 
 endowed after his decease, and this is a known and notorious 
 fact ; qucestio, whether she ought to recover dower or not. 
 Responsio. It seems not, for if the husband had established her 
 dower in certain, however much less than might have been 
 proper (qe ne affierreit), and she had agreed thereto, she would 
 be barred ; so in the other case, when she agreed to the marriage 
 without having dower, she cannot have her action for dower. 
 Contra. Dower is accessory to marriage, and, the principal es- 
 tablished, the accessories are also established. (Verum est, if it 
 had not been contradicted by the husband.) Further, dower was 
 ordained by common constitution of people ; and cannot be un- 
 done by any single person. For if by one, then by another, and 
 so the constitution would be destroyed ; quodnon est pennissuin, 
 lie pereat lex approbata.' (Note in MS. N.) The reasons here 
 stated against permitting the common rights of the wife to be 
 taken away by pi'ivate agreement so far prevailed, that before 
 the time of Littleton it became an established rule, that the wife 
 might, if she pleased, after the death of her husband refuse the 
 dower established ad ostium ecclesice, and fall back upon her 
 common law right. (Vet. Nat. Brev. 6. b. ; Litt. Ten. s. 41.) 
 The restriction of dower ad ostium ecclesicr to a third, had also
 
 520 BRITTON. [II, *247. 
 
 way dissolved by judgment in their lifetime, the wife 
 has no right of action for recovery of dower, unless 
 there was a special clause granted by the husband in 
 the first contract, that if a divorce should happen, she 
 should have a certain provision for the term of her life 
 or otherwise ; and such specialty made for dower be- 
 yond the general assignment of dower, shall entitle her 
 to an action. 
 
 3. Dowers are sometimes given by the father, grand- 
 father, or other kinsman or friend of the wife, of cer- 
 tain land or tenement, or of part of their chattels, 
 And sometimes land, tenement, or chattel is given by 
 the wife or some of her kindred or friends for the 
 marriage. Reasonable dower is sometimes increased 
 by an addition from some kinsman, which may happen 
 as well after the espousals during the marriage, as at 
 the time of the espousals ; and this increase, whether 
 the gift be made solely to the wife or to the husband 
 and wife jointly, does not fall into division or partition, 
 provided the gift be simple and absolute, and not in 
 consideration of the marriage. 1 
 
 4. Reasonable dower in knights' fees and grand ser- 
 
 at that time been abolished. (Litt. Ten. s. 39 ; Co. Litt. 34 b. ; 
 Fitzherbert, Nat. Brev. 150 P.) The Statute 27 Hen. VIII. c. 10, 
 by which a jointure might be made in bar of dower, was a res- 
 toration of the old law in another form. 
 
 1 This must be understood by reference to book iii. chap. 8. 
 sect. 8, where it is said that a coheiress claiming her part of the 
 inheritance is bound to bring her estate in marriage into hotch- 
 pot. Compare Bracton f. 92, 92 6.
 
 K, *247 ft.] OF THE NATURE OF DOWER. 521 
 
 jeanties is the third part of all the lands, together with 
 the fees and services, which the husband held in his 
 demesne as of fee on the *day of his marriage, and 
 whereof he could afterward endow his wife. 1 In so- 
 cages, free farms, petty serjeanties, and other fees, 
 let dowers be granted according to custom. Reason- 
 able dower does not extend beyond this, but the wife 
 may be endowed of less, if she is contented to be so. 
 And if there should be any excess, as sometimes hap- 
 pens from too large an assignment by guardians, while 
 the heirs are under age, such excess may be revoked 
 by writ of admeasurement of dower. 
 
 5. Wives are not only dowable of the lands and 
 tenements whereof their husbands were seised in their 
 demense as of fee, but they may be endowed also of 
 any lands which are to revert to the heir of the hus- 
 band upon the death of a tenant holding only for term 
 of life. 2 And in that case the widow shall wait until 
 
 1 The right of the wife to be endowed of land acquired after 
 the marriage is somewhat ambiguously stated. Compare below, 
 chap. 2. s. 4 ; Hengham Parva, cap. 3. p. 87. This right, which 
 did not exist in the time of Glanvill, and is not admitted by 
 Bracton or Fleta, was held to have been given by Magna Charta, 
 cap. 7. See the Year Book, Mich., 5 Edw. II. p. 133. 
 
 2 This should be understood of an express establishment of 
 dower, not of dower by common right. Compare the parallel 
 passage in Bracton f. 93. ' Case. A. has four carucates of 
 land, and aliens one carucate to D. for his life. A. afterwards 
 takes wife, and dies. His heir B. enters, and assigns one caru- 
 cate to the wife in dower. D. the termor dies. Qucestio. Shall 
 the wife have the third of this land ? She shall not, for the
 
 522 BR1TTOX. [II, *24S. 
 
 the death of such tenants, unless it was otherwise 
 agreed in the first contract, that some tenement should 
 be especially assigned to her to hold in tenancy until 
 the land so assigned to her after the other's death 
 should fall in. 
 
 6. Although dower may in the first instance be as- 
 signed as well of entire manors as of the third part of 
 all the manors, yet that manor which is the head of 
 the barony or county shall remain entire to the heir, 
 if the widow can elsewhere have her dower. *But if 
 there are several capital manors of several baronies or 
 counties, and the widow cannot elsewhere be fully en- 
 dowed, in such case she must be endowed thereof by 
 necessity, which overcomes law and usage. 
 
 CHAPTER II. 
 Of the Establishment of Dower. 
 
 1. Dower, properly speaking, is established by hus- 
 bands on their wives, and is assigned by the heirs in 
 pursuance of the establishment of the ancestor. And it 
 may be so established from the beginning, that the 
 husband may assign to his wife some certain thing 
 for her dower, if she is satisfied therewith, yet so that 
 if such certain thing be sufficient for her reasonable 
 dower, it shall remain entire ; if there be any defi- 
 ciency, it shall be made up to her ; and if there be any 
 
 husband had nothing of the demesne the day he married or ever 
 after.' (Note in MS. N.}
 
 II, *24S ft.] ESTABLISHMENT OF DOWER. 523 
 
 excess, it shall be restored to the heir. And as wives 
 may be endowed of certain tenements, so they may 
 also be endowed in a certain sum of money or goods, 
 so as they be contented therewith; and if such wives 
 survive their husbands, they cannot demand for their 
 dower more than according to the first appointment. 
 And if the chattels of the deceased are not sufficient, 
 their recovery shall be for the difference. 1 
 
 *2. It may happen that dower is established .by a 
 husband not on one wife only, but on several, whether 
 they be all living, or on one after the death of another, 
 or after a divorce pronounced between husband and 
 wife. For it has sometimes been, that a man from 
 wickedness has married several women, all living at 
 the same time ; but Holy Church says that of such 
 women none but the first is his lawful wife ; wherefore 
 the law regards the others only as false wives or con- 
 cubines ; and therefore they are excluded from any ac- 
 tion of dower. Sometimes however she takes the dower 
 who was found last seised of the husband ; and some- 
 times none of them have dower, as will be mentioned 
 
 1 The expression here is obscure. Bracton says in effect, that 
 when a burgess, or other, endows his wife with a sum of money, 
 whether lie has lands or not, she can ask no more out of his 
 tenements or chattels, but may insist on having the full amount 
 named, quamdiu ibi fuerit unicus obolus, so far as the chattels 
 of the husband will extend. And Fleta says, more distinctly, 
 that such dowers cannot be demanded except so far as the 
 chattels of the deceased suffice to pay them. See the passages 
 cited in the margin above.
 
 BRITTON. [II, *249. 
 
 afterwards. 1 So, on the other hand, one woman may 
 be married to several husbands all living at the same 
 time ; yet although dower may have been established 
 on her by each husband, she shall not have dower of 
 them all. For she is the wife of one only, and con- 
 cubine to the others. 
 
 3. If dower be deceivably established of all the 
 tenements which the husband shall purchase, yet where- 
 as it may happen that he may never purchase any land, 
 and the widow ought not to be without dower, if the 
 husband had lands in demesne and in fee, such an ap- 
 pointment is treated as an appointment of reasonable 
 dower according to the nature of the fees and the 
 custom of the place. For the law assists the deceived 
 rather than the deceivers. 
 
 4. Dower can be established only of such tenements 
 *as the husband held on the day of his marriage, or 
 shall afterwards have held in fee to him and his heirs, 
 whether the heirs be comprehended in the purchase 
 generally or specially, and whether by a tacit condition 
 in fee 2 or by being specially named, as thus : to such a 
 husband and to his heirs which he shall beget, and if 
 
 1 It appears from Bracton that the last possession prevailed 
 where there was no proof of the legality of another marriage. 
 But where no wife was in possession, and no sufficient evidence 
 which claimant was the lawful wife, no dower was assigned. 
 Bracton, f. 94. 
 
 2 These words possibly refer to an estate given in frank-mar- 
 riage, which was subject to a tacit condition in favour of the 
 donor and his heirs. See Stat. West. 2. (13 Edw. I.) c. 1.
 
 II, *2497>.] ESTABLISHMENT OF DOWER. 525 
 
 he shall have no issue, or if such issue shall die or fail, 
 that the land thus given shall, after the decease of 
 the purchaser, return to the donor and his heirs. In 
 such a case, if the husband has issue, although such 
 issue die and fail, the wife shall not be thereby barred 
 from having her dower; for, although the gift was 
 in the beginning conditional and the fee in suspense 
 yet by the birth of issue the feoffment becomes sim- 
 ple and absolute, 1 and thus an action of dower ac- 
 crues to the wife. So is it as to tenements purchased 
 in all other cases where the fee is in suspense, and de- 
 pends upon an event ; for if the event named in the 
 feoffment happens, then a fee thereby accrues to the 
 purchaser, so that the gift which was at first contin- 
 gent and conditional, becomes simple and absolute ; 
 and according to the event an action accrues to the 
 wife to demand her dower or not. 
 
 5. Moreover, dower which is established out of lands 
 und tenements which the husband wrongfully holds, 
 as being the right of another, is invalid, if without 
 fraud he loses them by judgment in his lifetime, or his 
 heir after his death. *But as a man may endow his 
 wife out of his own property whether definitely or in- 
 definitely, so he may do it out of lands belonging to 
 others, as where a husband endows his wife with a rea- 
 
 1 The Statute de donis conditional ibus (Stat. West. 2. (13 
 Edw. I.) c. 1.) had recently been made when this was written, 
 and the doctrine here stated appears to be that which prevailed 
 before the judicial exposition of that statute. See Coke, Inst. 
 pt. ii. p. 335.
 
 526 BRITTON. [II, *249 b. 
 
 sonable dower of the inheritance held by his father or 
 mother, with their consent; for such endowment is in- 
 effectual unless the owner of the land is present, and 
 solemnly assents thereto at the church door. And al- 
 though there be a deed witnessing the act, yet it is in- 
 valid unless it be made or at least allowed by the tenant 
 of the land at the church door, and this by reason of 
 the words in the count, which ought to say, ' whereof 
 he endowed her by assent of his ancestor at the church 
 door ; ' for if she counts that he assented elsewhere, 
 the count is defective, and the writ will be abatable 
 for the variance between it and the count. But rea- 
 sonable dower may sometimes have been established 
 by a man on his wife ; and if the heir in the lifetime 
 of the ancestor and his wife, with the assent of the 
 ancestor, endows his wife of the third part of all the 
 lands of the ancestor, such endowment will be preju- 
 dicial to the first wife. lie must of necessity therefore 
 endow her only of the third part of two parts, and of 
 the third of the third part when it shall fall in. So in the 
 reverse case, if the ancestor take a wife whom he has 
 to endow after the heir has endowed his wife of tho 
 third part of the whole by the assent of the ancestor. 1 
 
 1 ' If the father be sole and without a wife at the time when 
 his son endows his wife by the father's assent, and the father 
 take a wife afterwards, he cannot endow her except of the third 
 of two thirds ; and on the death of the father and son. the son's 
 wife shall have her action to have dower out of the whole. And 
 where the father and mother are joint purchasers and the son 
 endows his wife by their assent, constat. that this is of a third of
 
 II, *245.] ASSIGNMENT OF DOWER. 527 
 
 *6. When dower has been once legally established, it 
 cannot be increased to the prejudice of the heir by any 
 agreement between the ancestor and his wife after the 
 marriage. And as it cannot be increased to the preju- 
 dice of the heir, so neither can it be diminished to the 
 prejudice of the wife. 
 
 CHAPTER III. 
 Of the Assignment of Dower. 
 
 1. After the husband's death, the establishment of 
 dower is first confirmed. Wherefore let the dowers of 
 widows be forthwith assigned and delivered to them 
 according as they were established, without asking any 
 fine or using any oppression, and not only their dowers, 
 but also the tenements which were given to them in 
 marriage. And because it is improper that such wives 
 should be thrust out of doors with their husbands' 
 bodies, without having a place to lodge in, it is allowed 
 by law and custom that they may abide in the capital 
 messuages which belonged to their husbands forty days 
 after their husbands' deaths, and that in the meantime 
 
 the whole, and if the mother dies, and the father takes another 
 wife, the endowment of this wife takes nothing from the son's 
 wife's dower first established. But suppose the father dies, and 
 the mother takes another husband, who has issue by her, and 
 the mother and son die in one day ; qu. whether the second 
 husband shall hold the whole by the curtesy, or the son's wife 
 have her dower.' (Note in MS. N.)
 
 528 BRITTON. [II, *245 b, 246. 
 
 their dowers be assigned to them, unless the capital 
 messuage be the *head of the county or of a barony, or 
 a castle ; in which case some other decent house shall 
 be provided for their dwelling, where they may keep 
 their quarantine ; and that wheresoever they abide 
 they shall have suitable maintenance out of the profits 
 of the whole of the lands until their dowers be assigned 
 and delivered to them, according to the appointment 
 made at the church door on the day of marriage, in 
 the same state in all points, with the fruits, rents, and 
 all the appurtenances, as they were on the day of the 
 death of their husbands ; and that which has been taken 
 or gathered in the meantime shall be restored to them. 
 2. But where any husband has aliened his inherit- 
 ance in his lifetime by feoffment or farms either in part 
 or in the whole, in such case the tenants are not obliged, 
 whether they will or no, immediately to render to the 
 wife her dower, because they have great reason for re- 
 taining it, until they are compensated to its value, so 
 far as the law will permit. But if anyone wrongfully 
 delays the rendering of dower, he is obliged to make 
 satisfaction to the wife for her damages, though not 
 in all cases. For if the wife brings her plaint by writ 
 of dower patent demanding the tenements aliened in 
 the lifetime of her husband, by this writ she ought not 
 to recover damages, as will appear in its proper place. 
 But if she complains by the common writ of dower 
 close, and demands her reasonable dower, she shall by 
 this writ recover the third part of all the tenements 
 -which her husband held in demesne and in fee as his
 
 II, *2465.] ASSIGNMENT OF DO WEE. 529 
 
 own right on the day of his marriage with her, and 
 also of all such tenements as were his after he married 
 her; and if she can prove that she has been wrongfully 
 delayed in obtaining her dower, in such case she shall 
 recover damages, but not where the deforceor has a 
 good reason for keeping back the dower, as before is 
 mentioned. And let him restore the damages \vlio 
 shall be found guilty of the wrong. 
 
 3. In some instances the widow shall recover more 
 than the third part, according to the nature of the fee 
 and the custom of the land. For there are many tene- 
 ments in which reasonable dower extends to a moiety 
 of. the land, as is the case in some socage tenements ; 
 and in such cases the custom of the country and of 
 the place is to be observed as law. 
 
 4. Sometimes also she has a right to recover a cer- 
 tain quantity for her dower pursuant to the establish- 
 ment of her dower ; and in that case let her recover by 
 writ of dower named. And if the dower so specifically 
 named exceed the value of reasonable dower, the heir 
 may recover the excess by writ of admeasurement of 
 dower. But if that specific dower does not amount to 
 the value of the third part, or to the value of reason- 
 able dower, she must be contented with what there is. 
 *For more than the dower named she cannot claim, 
 since at the establishment of it she was contended to 
 take it. But if she was not so contented at the estab- 
 lishment, and can verify her dissent, then she shall re- 
 cover the difference to the extent of the value of reason- 
 able dower. So likewise if she can aver that in the 
 
 34
 
 530 BRITTON. [II, *247, 
 
 establishment a condition was made, that if the dower- 
 named did not amount to the value of reasonable dower, 
 the difference should be assigned to her to the extent 
 of the value of reasonable dower. And by means of 
 this writ she shall also recover damages against the 
 wrong doer Avhen she shall have recovered her dower. 
 And in like manner shall widows recover damages for 
 the wrongful detainer of dower established out of the 
 tenements belonging to another. 
 
 5. Dower ought to be assigned as a whole, and not 
 by parcels ; that is to say, the third of all the lands 
 and tenements which the husbands held in demesne 
 and in fee, as well of villenages, knights' fees, services 
 of freemen, and advowsons of churches, as of demesne 
 land. Unless however in the original establishment of 
 the dower special mention was made of advowsons or 
 third presentations, the widow cannot demand any- 
 thing for dower in an advowson or presentation, be- 
 cause the advowson of a church is not partible, neither 
 would it admit of division. 1 *But where the dower was 
 established of an entire manor with all the appur- 
 tenances, without any reservation, if the advowson of 
 a church be appendant to the manor, the advowson be- 
 longs to the dower, and the widow will have a right 
 
 1 Bracton states, that, where there were several advowsons, the 
 widow should have her share of them as entireties ; but where 
 there was only one, it should not be divided, but she should 
 have satisfaction for its value. If not so satisfied, he suggests 
 that she ought to have the third presentation. Compare Butler's 
 Coke Litt. 32 a, 32 b, note 197.
 
 II, *247 b.] ASSIGNMENT OF DOWER. 531 
 
 to present when the church becomes vacant. For these 
 words ' without any reservation ' are equivalent to a 
 special establishment of the advowson on the wife. 
 
 6. In the assignment of dower widows cannot claim 
 anything in mansions or castles which are heads of 
 baronies or counties, nor in mansions in other fees 
 where there is but one capital messuage, nor in pre- 
 serves of deer, vi varies, hays, stanks, parks, or gardens, 
 nor in the fosses of the messuage, nor anything within 
 the close of the capital messuage beyond her quaran- 
 tine, unless the heir chooses, so long as the value of 
 her dower can be assigned to her in land, rent, or other 
 thing elsewhere. But let one of the houses of the 
 villain tenements be assigned to her to dwell in, and 
 let her be content therewith. And if there be no such, 
 let her be provided with a plot of ground in some con- 
 venient place to build and dwell in, and let that be as- 
 signed to her in length and breadth in proportion to 
 the third part of the messuage, but not to the value of 
 the third part of the building; and let a sufficient mes- 
 suage be erected for her out of the issues of the entire 
 inheritance. But if the heir cannot assign her the 
 '"value elsewhere, then of necessity he must endow her 
 of the third part of whatever he has, saving the advow- 
 son of a church, unless special mention was made 
 thereof in the establishment. But dower shall never 
 be assigned of deer or other game, nor of other 
 beasts in parks or chases, nor of fish in waters, nor 
 of homages. Yet in fisheries where the profits are 
 casual, sometimes the third draught may be assigned,
 
 BRITTON. [II, *248. 
 
 so that the heir may fish twice and the widow the 
 third time. 
 
 7. If a writ of right is to be brought and pleaded, 
 this jurisdiction does not belong to the dower, nor in- 
 deed to the court of any one who holds only for term 
 of life ; but it must be determined in his court of 
 whom the plaintiff claims to hold the tenements de- 
 manded by homage, although he may hold of some 
 other person by fealty. Neither does it belong to 
 dower to have authority to hold view of frank-pledge, 
 or to take cognisance of pleas de vetito namio or 
 to have estray or waif, or the correction of assises 
 broken, or the franchise of infangthef, or wreck, or 
 any regal franchise derived from the prerogative 
 of our Crown. For such pleas are pleadable by 
 the heir and his bailiffs, although the widows be en- 
 dowed of the entire manors to which the franchises 
 belong. 
 
 *S. Dower being thus assigned to widows by certain 
 limits and bounds, the wardships, marriages, reliefs, es- 
 cheats, perquisites of courts, and pleas of their tenants, 
 and all manner of profits issuing out of the dower, shall 
 belong to them, unless they are barred by some special 
 exception. The escheats however shall be theirs only 
 for the term of the dower. And whereas dower ought 
 to be absolutely free, the widow is not bound to dis- 
 charge the debts of her husband, but that lies upon the 
 heir. And if he is not able to satisfy our debt, or to 
 perform our service, or the service or debt owing to an- 
 other which the ancestor shall have acknowledged in
 
 II, *248 &.] RECOVERY OF DOWER. 533 
 
 our court, then the hand must be extended to reach the 
 dower. 1 If any one refuses to allow dower to the 
 widow of his own accord, she must be aided by 
 plea. 
 
 CHAPTER IV. 
 
 Of the Remedies for recovery of Dower. 
 
 1. Plea of dower is determinable in our court, and 
 that for good reason. For if two or more women 
 should contend together about dower, each alleging her- 
 self to have been the espoused wife of the -deceased 
 husband, and Ave or any other person desired to be 
 certified which of them all was his lawful wife, *since 
 one only can be so at one time, as before has been said, 
 this point can be certified only by the court Christian ; 
 and therefore if any other than ourselves should direct 
 a mandate to the bishop to be certified upon such a 
 question, and the bishop should refuse, no one except 
 ourselves would have any jurisdiction to compel the 
 bishop to certify against his will. And there are 
 several other reasons. 
 
 2. If any widow then would complain of a wrongful 
 
 1 This provision, making the dower to some extent liable for 
 the husband's debts in case of the deficiency of his remaining 
 property, is not derived from Bracton or Fleta. It finds how- 
 ever some support, so far as regards debts due to the Crown, in 
 one of the forms of writs, quod mulieresnondistringantur, given 
 in the Register. See Regist. Brev. Orig. f. 142 b, 143 ; Fitzher- 
 beft, Nat. Brev. 150 Q ; Coke, Litt. 31 a.
 
 534: BRITTON. [II, *249. 
 
 detaining of her dower, care must be taken to examine 
 narrowly whether the wrong is done to her by the heir 
 or by any other person, and whether by detainer of all 
 the reasonable dower specially named in the original 
 establishment, and whether of tenements whereof her 
 husband was seised, or of tenements of the ancestor of 
 her husband whereof she was endowed by his assent, anil 
 whether she has part or not ; and if she has part, 
 whether the deficiency be in the principal subject, or 
 in the appurtenance. On each of these points there lies 
 a different remedy ; for if she has never been seised of 
 any part, and the establishment made upon her was of 
 reasonable dower, then the common writ of dower close, 
 ' of reasonable dower whereof she hath nothing-,' lies. 
 And if the establishment made was in certain, then 
 there is remedy by another writ. And if of lands of 
 the ancestor by his assent, then she shall have a different 
 remedy. *And if she has part of the tenement and de- 
 mands the residue, then the writ of right of dower 
 patent pleadable in the court of the heir is in place. And 
 if she has her reasonable dower of the principal, but is 
 deforced of some of the appurtenances, then the writ of 
 dower patent, called writ of dower de rationdbili parte 
 mulieris, lies. 1 
 
 1 ' The writ of dower, unde nihil habet, and the two possessory 
 writs, de dote certa and de dote de assensu patris, are pleaded 
 only in the Bench on account of the precept to the bishop. But 
 the writs of right are pleadable in the lord's court, because the 
 cause of dower, that is, the marriage, cannot be denied after the 
 plaintiff has been recognized as lawful wife by the delivery of
 
 II, *2-t9 I.-] RECOVERY OF DOWER. 535 
 
 3. If several deforceors are in the same county, they 
 may be all comprised in one writ. This plea is real, and 
 pleadable after default by distresses real, as by Cape's ; 
 and essoins are allowed on the first day, and also after 
 each appearance. And if the deforceor makes default 
 after essoin, and also where the deforceor has vouched 
 to warrant, and not caused his vouchee to be summoned 
 against another day, the petty Cape lies. It is intended 
 that this action shall be the most favoured of any of 
 the writs of possession not pleadable by assise, and 
 therefore there ought to be greater dispatch therein. 
 
 4. The most common writ of dower is the writ close 
 whereof the widow hath nothing, and therefore we 
 ought to begin with that writ ; in which the count is 
 thus : ' This sheweth to you, Peronel, who was the wife 
 of John, that Peter w r rongfully deforces her of the 
 third part of so much land with the appurtenances in 
 such a vill to her damage of ten pounds, and herein 
 wrongfully, in that the aforesaid John, formerly her 
 lord, endowed her thereof at the church door on the day 
 when he married her, as he that lawfully so might do, 
 and if he admit this, he does well, *and if he deny it, he 
 denies it wrongfully, for she hath thereof suit good 
 and sufficient.' 
 
 5. "When the widow has thus declared her case, if 
 the deforceor will not say anything or defend himself, 
 
 all or part of her dower, whether this was done by plea or with- 
 out plea.' (Note in MS. N.) For the form of these several 
 writs, see Regist. Brev. Orig. f. 3, 170 ; Fitzherbert, Nat. Brev. 
 8G, 148 A.
 
 53G BEITTON. [II, *250. 
 
 he shall remain in mercy as undefended, and she shall re- 
 cover her demand in the same state as the tenements 
 were on the day that her husband died, and also her 
 damages. And if the deforceor defends the wrong and 
 force and the damages of the plaintiff, and so on, ac- 
 cording to the proper words of defence, he may then aid 
 himself several ways, either by general dilatory excep- 
 tions or by special peremptory exceptions, as will after- 
 wards appear. 
 
 CHAPTER Y. 
 
 Of vouching to Warranty in Pleas of Dower. 
 
 1. If the deforciant vouches to warranty, then the like 
 process shall hold as shall be mentioned of warranties 
 in a plea of right, so far as regards judgments upon 
 defaults. 1 And if the vouchee appears on the day of 
 the summons and enters into warranty, then let the 
 contest be between the plaintiff and the warrant ; and 
 in the meantime the tenant may remain at home in his 
 possession until the plea of warranty is determined, for 
 according to the event of that plea the tenant shall hold 
 the land or lose it. And if the demand be of dower 
 which was named in certain to the wife upon the first 
 establishment, and the action goes against the tenant, 
 the widow shall *recover her demand in full, and the 
 tenant to the value from the warrant. But where 
 
 1 The passage referred to is not found in Britton, but the proc- 
 ess is stated in Bracton, f. 384, Fleta, p. 411. See Introduction , 
 p. xlii.
 
 II, *250 .] RECOVERY OF DOWER. 537 
 
 reasonable dower is demanded it is not so ; for of that 
 dower the widow shall recover to the value of the war- 
 rant, and the tenant shall remain in tenancy of the land 
 demanded. 
 
 2. Although the warrant be under age, yet, out of 
 favour to widows, it is not the custom or law that the 
 women shall wait until the full age of the warrants, 
 because warranty of dower is not so prejudicial to heirs 
 as to involve disherison. Nevertheless such tenants 
 must show a charter or deed, whereby the court may 
 be certified that the infant is bound to warranty by his 
 ancestor ; and whether the demand be of reasonable 
 dower or of dower in certain, the heir shall answer of 
 whatever age he be. And if the widow recovers her 
 demand, and the heir is disposed to dispute it, he may 
 take proceedings when he comes of age. And so he 
 may possibly regain the land which he himself lost, but 
 if he cannot do so, then the first judgment shall stand. 
 
 *3. It should be understood that in every judgment 
 awarding seisin to a widow plaintiff of reasonable 
 dower not named, the corn growing and the grass 
 mowed are always to be excepted. 
 
 4. Although the infant is in ward, and the wardship 
 aliened from one to another, this does not prejudice the 
 voucher, because he shall always vouch to warranty the 
 heir, and not his guardian ; but the guardian, whoever 
 he be, is bound to produce the infant in court. And 
 what has been said with regard to a sole heir under age, 
 is also to be understood of several heirs under age who 
 are parceners and considered MS on^ heir.
 
 538 BUITTON. [II, *2 
 
 CHAPTER VI. 
 
 Of Exceptions respecting the husband's death. 
 
 1. Exceptions may arise to the tenant from the arti- 
 cles in the writ. For where as it is said in the writ, ' who 
 was the wife of such an one, formerly her husband,' 
 the tenant may answer, that he was formerly her hus- 
 band and is so still, and inasmuch as her husband is still 
 alive, he is not bound to answer her in the absence of 
 her husband. And if this be proved, or not denied, the 
 action is at an end ; because gifts for marriage, as is 
 the case of lands given in marriage and establishments 
 of dower, are not confirmed until the death of the hus- 
 band. 
 
 2. If the wife says that her husband has taken the 
 habit of profession, and the tenant says that he has 
 not, *this must be certified by the ordinary, and the 
 original plea shall be in the meantime respited. And 
 according to the certificate of the ordinary let judgment 
 be given. 1 
 
 1 ' Casus. A man takes a wife, and afterwards goes to a 
 foreign country, and there enters into religion and is professed. 
 The wife brings her writ of dower. The tenant answers, that 
 the husband is alive ; and she, that he is dead in law (solum ley 
 de terre), and sets forth how and in what place. Qucesti-o, quid
 
 II, *251 I.] EXCEPTIONS OF DEATH. 539 
 
 3. If she says that her husband is dead by natural 
 death, the proof sometimes lies upon the plaintiff, if the 
 tenant puts her upon proving the same ; in which case 
 he shall only say that the husband is not dead. For 
 in general it belongs to the plaintiff to prove his case, 
 unless the defendant undertakes to prove the contrary. 
 And if thedeforceor says that the husband is alive, and 
 that he is ready to prove the same, and the wife only 
 says that he is dead, without tendering averment, then 
 the proof lies on the tenant, inasmuch as it belongs to 
 the person excepting to prove his exception. And if both 
 undertake the proof, it is for the one to prove the man 
 to be alive and for the other to prove that he is dead, 
 and it may happen that both parties furnish proof of 
 their case ; but then credit should be given to the most 
 reasonable proof. And although the widow proves 
 her husband to be dead, yet seisin of dower ought not 
 to be adjudged to her without further answer of the 
 tenant, before she has shown how she is entitled and has 
 right of action in her demand ; for it may well be that 
 she has no right to demand dower. 
 
 *4. If the proof be found insufficient on both sides, 
 in such case, on account of the favour granted to the 
 widows, judgment ought to be given for the plaintiff ; 
 but on this condition nevertheless, that if her husband 
 
 juris?' (Note in MS. N.) It was subsequently held that if a 
 husband entered into religion although the heir succeeded to 
 the inheritance, the wife should not be endowed until the hus- 
 band was naturally dead. See Coke, Littleton, f . 33 b. : Perkins, 
 Profitable Book, p. 61.
 
 540 BRITTOK [II, *252. 
 
 be alive and be produced in court, the wife shall restore 
 the dower with all the profits in the meantime, pro- 
 vided she can find such security to perform this as the 
 court shall award ; and if not, the tenant will continue 
 in seisin until the court is better certified of the hus- 
 band's death. The plea in the meantime shall be sus- 
 pended, and renewed by resummons when there shall 
 be occasion. 
 
 CHAPTER VII. 
 
 Of Exceptions founded on the invalidity of the mar- 
 riage^ and on the dower established being different 
 from that claimed. 
 
 1. It is also said in the writ, ' such an one who was 
 the wife of such an one.' To this the tenant may 
 answer, that she never was his wife, inasmuch as she 
 was never married to him, but he had her as his con- 
 cubine ; or if she was married to him, yet she never 
 was so by lawful matrimony, because he had before 
 married another who was living at the time he married 
 the plaintiff, so that if she was his wife, she was so in 
 fact only and not in lawful form by reason of the 
 other, who was his wife in law. That he could not 
 have two wives at one time appears by the definition 
 *of matrimony, where it is said, that matrimony is the 
 union of a woman to a man, and not of women to men, 
 but in the singular. And if several women, all living 
 at the same time, are united to one man, yet none of
 
 II, *252 I.] INVALIDITY OF MARRIAGE. 541 
 
 them but the first is in law his wife; the others being 
 so in fact and wrong-fully. 
 
 2. Again, although she was his lawful wife, yet the 
 tenant may say that she ought not to have dower by 
 that rule of law which says that the marriage subsist- 
 ing action of dower remains, but the marriage failing 
 the action is extinct, and a divorce was pronounced 
 between her and her husband, whereby the marriage 
 ceased, and consequently her action to demand dower 
 is extinguished. For a divorce is no other thing but a 
 separation of bed between man and wife. And if this 
 be verified, or not denied, the wife shall not recover 
 any dower. To this the widow may perhaps answer, 
 that although there was once a question in court con- 
 cerning a separation between her husband and her, yet 
 it never came to judgment in the lifetime of the hus- 
 band ; or, that although the divorce was awarded, yet 
 she appealed against the award ; and by that appeal the 
 award was annulled and repealed, and judgment given 
 for the wife ; so that the husband was seised of her as 
 his wife the day he died, and she of him as her hus- 
 band. *To which the tenant may say, that although 
 she appealed from such award, yet still she ought not 
 to have dower, because the husband died before any 
 judgment was given in the plea of appeal. 
 
 3. Again, the tenant may say, that although she was 
 his lawful wife, yet she ought not to have dower, be- 
 cause she was never solemnly married at the church 
 door, and consequently dower was never established 
 upon her there. And if this be verified, she shall not
 
 542 BRITTON. [II, *253. 
 
 recover any dower on account of the words of the writ, 
 
 v 
 
 ' at the church door.' 
 
 4. If the Justices would be certified concerning any 
 divorce, they must be certified by letters of the ordi- 
 nary ; for the cognizance thereof belongeth not to the 
 lay court, no more than of matrimony, since the one 
 depends upon the other. Therefore in such case our 
 writ must be directed to the ordinary of the place, that 
 after calling the parties and other necessary persons, 
 lie do inquire the truth of the matter, and according as 
 he shall find certify the same to the Justices. In such 
 case the ordinary ought to cause the tenant who 
 propounded the exception, in whatever diocese he re- 
 sides, to be summoned to be at a certain day and place 
 before him to show whether he can or will say anything 
 against the marriage. And after he has been solemnly 
 summoned, *whether he come at the day or not, let 
 the widow's proof by the witnesses she shall produce be 
 admitted, so as such witnesses be not liable to chal- 
 lenge ; and such proof being solemnly admitted upon 
 the oath of the witnesses, let the ordinary forthwith 
 according to the inquest make a return to the Justices 
 of the fact as found ; and in such case no appeal lies 
 by any of the parties, that the plea in our court may 
 not in any way be longer delayed. 
 
 5. But now it may be asked, \vhether if a man kept 
 a mistress in concubinage, and begot a child by her, 
 and afterwards secretly married her elsewhere than at 
 the church door, and after such marriage had another 
 child by her, and then publicly married her at the
 
 II, *253ft.] INVALIDITY OF MAHKIAGE. 543 
 
 church door, and there endowed her, and after that had 
 a third child by her, which of these children would be 
 admissible to the succession of the inheritance of the 
 father, and by reason of which of them the mother 
 shall be entitled to dower after the decease of the 
 father. The answer in such case is that the middle 
 son ought to be admitted to the succession of the in- 
 heritance of the father, and shall be accounted legiti- 
 mate in respect of his birth, although the marriage 
 was secret, provided he can aver that he was born 
 within wedlock, whether the espousals were publicly 
 or privately performed. * And yet the mother shall not 
 have dower by reason of that child, but she shall not 
 have it by reason of the third son, and of the solemn es- 
 pousals wherein she was endowed at the church door. 
 Hence it appears, and true it is, that sometimes the 
 mother shall not have dower, although the son may be 
 admissible to the succession of the inheritance of his 
 father, and that no right ever accrues to any woman 
 to demand dower, unless it was established to her at 
 the church door, and this, whether in a time of in- 
 terdict or not. 1 
 
 6. When the ordinary has solemnly performed the 
 duty of his office with regard to the making of the in- 
 quest upon the points comprised in our mandate, and 
 has thereupon made his return and certified us or our 
 Justices, the tenant at the instance of the plaintiff shall 
 
 1 The meaning seems to be, that though there was an interdict 
 upon the ceremonies of the church, dower could still be ' estab- 
 lished ' at the church door. Compare Bracton, f. 304.
 
 544 BRITTON. [II, * 254. 
 
 then be resuinmoned, that he be before our Justices at 
 a certain day and place. At which day the parties may 
 be essoined. And if the tenant make default, and the 
 resurnmons be proved, let the land demanded be forth- 
 with taken into our hand by the petty Ca-pe, and let 
 him be again summoned to appear at another day to 
 hear his judgment. 
 
 7. If the tenant dies before he is resuinmoned, the 
 widow must revive her action by a fresh writ against 
 the new tenant ; and if the aforesaid exception be 
 again alleged, it will not be necessary to send it again 
 * before the court Christian, after judgment has once 
 passed in her favour, but it is sufficient to prove the 
 marriage in court Christian once for all. Therefore 
 that exception will thenceforth be of no avail in the 
 mouth of any one ; but some other defence must be 
 made, or the widow shall recover her demand. In like 
 manner if a woman demands a man as her husband, 
 and judgment is pronounced for the woman in court 
 Christian, whether the man has appealed from the 
 judgment or not, yet if he dies before the judgment 
 is reversed, the woman shall recover dower, and that 
 judgment shall for all future time be a sufficient proof 
 of the marriage. 
 
 8. If the tenant by way of exception says that she 
 never endowed at the church door in the manner she 
 has declared in her count, and the widow says the con- 
 trary, the truth may be inquired by the country. And 
 if she omits the words ' at the church door,' the writ is 
 abatable for the defect in the count. And if the widow
 
 II, *254 6.] INVALIDITY OF MARRIAGE. 545 
 
 demands more than was at first established upon her 
 at the church door, although her husband from some 
 foolish fondness afterwards increased it, she shall not 
 be entitled to be answered in respect of that increase. 
 *For as dower was appointed her at the church door, 
 whether in specie, or of the third part, and so not in 
 specie, in that form dower shall be 'assigned to her, 
 and she has an action to demand so much, and no 
 more, if she be deforced thereof. 
 
 9. If the widow demands dower named, as being 
 that which was established upon her at the church 
 door in certain, and the tenant says in answer, that 
 she wrongfully demands dower named, inasmuch as at 
 the establishment she was endowed only of reasonable 
 dower, and therefore uncertain, or of the third part of 
 something certain ; in such case the proof lies on the 
 Avidow ; and if the tenant expressly tenders averment 
 of the negative, then it shall belong to him to prove 
 his exception, as well as to the widow to prove her 
 <3ase. And if the widow produces witnesses who were 
 present at the establishment, or tenders a writing 
 which was made to her thereof on the da}^ of the 
 establishment, and the tenant offers nothing but aver- 
 ment by the country, in such case, as well as in cases 
 where the death of the husband is to be proved, the 
 widow's proof shall be more admissible and of greater 
 weight than that of the tenant. But if the widow 
 brings her witnesses, and none of them were present 
 at the establishment of the dower, or, in the other 
 case, at the burial of the husband, her proof is in 
 35
 
 546 BKITTOK [II, *255. 
 
 neither case to be admitted against the suit of the 
 tenant. And if neither of them tenders suit, but 
 simply averment by the country, in such case let the 
 truth be inquired by the country. 
 
 ^CHAPTER VIII. 
 
 Of the pleadings where several women claim dower of 
 one husband. 
 
 1. If several women at one time demanded dower 
 by the establishment of a single husband, an exception 
 thereby arises to the deforciant, that he ought not at 
 the same time to answer several women demanding 
 dower by reason of the death of one man. 
 
 2. If one woman has recovered dower, and another 
 demands it, a distinction must then be made, whether 
 the plaint is against the tenant alone or against him 
 and the wife endowed, she having vouched the tenant 
 to warrant. For if the tenant has entered into war- 
 ranty, then the warrant is bound to defend the vouch- 
 eress against the plaintiff. And if he has not yet entered 
 into warranty, then the dower may answer by herself to 
 the following effect : that the plaintiff ought not to have 
 dower, nor any one except herself, forasmuch as she 
 was the espoused wife of him of whose death she is 
 endowed, and was seised of him as of her husband at 
 the time when he died, and she was therefore endowed, 
 and that rightfully. 1 To which the plaintiff may in 
 
 1 In Bracton this pleading is given as that of the warrant, who 
 is there called tenant. In Fleta, as here, it is the pleading of 
 the woman endowed, and she is called tenant, mulier tenens.
 
 II, *255 b.] PLEADINGS OF WOMEN. 547 
 
 answer say, that the tenant saith wrongfully, for she 
 was not his wife, as plainly appears, inasmuch as this 
 same plaintiff heretofore impleaded the same husband 
 in court Christian *and demanded him as her husband 
 in such a place and before such judges, and in the pres- 
 ence of the same tenant deraigned him as her husband, 
 on which occasion she did not make any counterclaim 
 or opposition. And if the tenant does not deny this, 
 the plaintiff shall recover dower of that which she 
 holds. But if she denies it by affirmation or negation, 
 a doubt arises, which must be ascertained by inquiry 
 of the ordinary, and according to his return the parole 
 shall be continued by resummons, and judgment given ; 
 and pending the plea in court Christian, the original plea 
 shall be at rest. And if replication be made of an 
 appeal and judgment reversed, the effect shall be as is- 
 above mentioned concerning such a replication. 
 
 3. Again, if the tenant in dower says only, by way 
 of exception, that the plaintiff cannot be his wife be- 
 cause she held her tongue when she ought to have 
 claimed her husband, as, when the banns of the second 
 marriage were three times solemnly asked in the church 
 where she was present, upon the negation of the tenant 
 both of them shall be sent to court Christian in order 
 that the Justices may be certified upon this question, 
 which of them was the wife of the husband in law, 
 and which only in fact ; and according to the certifi- 
 cation of the ordinary judgment shall be given. 
 
 4. Although one of the women was lawfully his wife, 
 yet her right may be lost by default of evidence, as
 
 548 BRITTOK [II, *256, 256 I. 
 
 where she was married out of our jurisdiction. Also 
 by negligence in her claim. *as where the rightful wii'e 
 never disputed the second contract in the lifetime of 
 her husband who abandoned her ; in which case her 
 right of action is lost, and she ought not to have dower, 
 especially if the second wife remained with the husband 
 until his death. And in like manner her action is lost, 
 even though she disputed the second marriage, if the 
 husband died in the arms of the second wife before 
 judgment of divorce. But in all these cases the first 
 wives shall have dower, if their children are able to 
 recover the succession of their father's inheritance. 
 
 CHAPTER IX. 
 
 Of Exceptions relating to the Assent of the father. 
 
 1. Sometimes writings are made of the establishment 
 of dower, and that wisely ; for if such writings are pro- 
 duced at the trial, the wife's demand can be more clearly 
 made out. And if they should be denied, this doubt 
 may be tried and their legality proved by comparison 
 of seals, by the witnesses named in the writings, by 
 the country, or in several other ways. But of all 
 establishments of dower, there is most need of writing 
 where the assent of a third party has concurred. *The 
 writing may however be so made as to be useless in 
 proving the wife's case ; for if it is said, that her hus- 
 band endowed her, and the assent of the possessor of 
 the land is not mentioned, the writing will not avail in
 
 IT, *257.] ASSENT OF THE FATHER. 549 
 
 evidence of her demand. So likewise, if it is stated in 
 the writing, that some other person than the husband 
 endowed her. 
 
 2. It is necessary therefore, that in every such 
 writing these points should be specially mentioned, 
 that the husband endowed the wife at the church door 
 of the third part of his father's land, or of that of 
 some other kinsman or friend, and that the same friend 
 or kinsman assented in the same place and at the same 
 time. And although the writing be made elsewhere, 
 yet in order that it may be of effectual value, it should 
 be granted and confirmed by assent at the church door, 
 or the endowment will be worth nothing, if the friend 
 choose to dispute it. on account of the expression in the 
 writ, ' at the church door.' By this reasoning it ap- 
 pears, and it is true, that a woman shall not recover 
 dower against the will of the tenant, unless she make 
 it appear by writing, or by witnesses present at the es- 
 tablishment and at the marriage, or by the country, 
 that these two things concurred at the marriage, 
 namely, an establishment of dower by the husband and 
 an assent of that friend, or his ancestor, of whose land 
 she demands *dower, and that he assented to the en- 
 dowment, whether there be writing or not, at the church 
 door ; for an assent at any other place is useless.
 
 550 BRITTON. [II, *257. 
 
 CHAPTER X. 
 
 Of common Exceptions in Actions of Dower. 
 
 1. To those words in the writ ' whereof she hath 
 nought,' the tenant may answer that she hath part. 
 But then it will be necessary to distinguish, whether 
 the plaintiff has received part of her dower before the 
 purchasing her writ or after. For if after, although 
 from the same deforceor of whom she complains, and 
 in the same vill named in the writ, yet the writ is not 
 thereby abatable ; for she may say that satisfaction was 
 made to her for the difference ; 1 but if she received 
 part before the writ was purchased, 2 then the writ is 
 abatable ; and t no writ shall lie but the writ patent 
 upon the right. 
 
 2. Again, the deforceor may say that the plaintiff 
 ought not to have dower, for that her husband did not 
 hold the tenement, whereof she claims dower, in de- 
 mesne either on the day on which he married her or 
 
 1 That is, she may say by way of replication, that at the time 
 of purchasing the writ she had nothing of her dower, but that 
 an assignment has since been made to her in satisfaction of part 
 of her demand. Compare Bracton, f. 311 b. 
 
 2 This must be understood, if the part was received from the 
 same deforciant and in the same vill. See Statute of West- 
 minster i. c. 49 ; Fleta, p. 347 ( 4).
 
 II, *257 &.] ACTIONS OF DOWEE. 551 
 
 afterwards, or that if be did hold it in demesne, yet 
 he could not endow her, as he had no fee therein. But 
 if her husband had the fee of any tenement which was 
 to return to him or his heirs on the death of some per- 
 son *who held it for term of life, in all such kinds of 
 tenements although the freehold was aliened before 
 the husband married her, a wife may demand dower if 
 she was endowed thereof at the church door. 
 
 3. Again, he may say that she ought not to have 
 dower by reason that her husband was a felon and suf- 
 fered judgment of felony, for which he was hanged, or 
 beheaded, or buried in the sands, or dismembered, or 
 drowned, or condemned to some other death, 1 or ab- 
 jured the realm, or was outlawed ; in which case the 
 record must be vouched to warrant. And when the 
 record is produced, the widow may dispute the record 
 unless it is proved by some one authorised by us to 
 bear record. For she may say that some one out of 
 hatred caused her husband to be hanged, when in fact 
 he was never found guilty of any felony, and that this 
 act was done by such an one, and by certain others w r ho 
 coloured his death with a sort of judgment. And if this 
 be verified by the country, the widow ought not by such 
 a wrongful judgment to be barred of her dower, nor 
 the heir of the succession to the inheritance. So neither 
 where the felony did not amount to 12o?, nor where the 
 outlawry was pronounced before the fourth county 
 
 1 As to the various modes of execution mentioned above, and 
 the places where they were customary, see Hengham Parva, 
 p. 87, and Selden's notes thereupon.
 
 552 BRITTON. [II, *258. 
 
 court or pronounced in any other county than in that 
 where the offence was supposed to have been committed. 
 Nor in any case where a lawful defence may be made 
 to the outlawry. Nor in any case of judgment of death, 
 *where the supposed felony is found on examination to 
 be a trespass and not felony, nor in the case of abjura- 
 tions for trespass, as in parks or fishponds, or other 
 like trespasses. 
 
 4. Although the husband suffered judgment of fel- 
 ony and that deservedly, yet she may say that, not- 
 withstanding this, she ought not to be barred of her 
 demand, for at the time he committed his felony she was 
 not united with him nor married to him, neither was 
 assenting or privy thereto. And inasmuch as the wife 
 of a felon ought not to lose her dower, except by rea- 
 son that she may be fairly supposed to know of the 
 felony of her husband, and even then she is not bound 
 to accuse him, therefore, where the felony was not 
 committed during the time that she was his wife, she 
 ought to have dower of the lands of the heir which 
 are in the custody of his lord. 1 
 
 1 These last words should apparentlj r be understood of the 
 felon's lands escheated to the lord. ' A man commits a felony 
 which is not discovered ; afterwards he purchaseth land, and 
 afterwards taketh a wife, Although he be sentenced for the 
 felony, the wife shall recover dower. Dubium tamen est, quia 
 quicquid acquiritur inter feloniam commissam et ipsius felonise 
 convictionem, fit ac si ante feloniam perpetratam propter con- 
 victionem ob quam nomen felonis subibit.' (Note in MS. A r .) I 
 do not find, that in later times an exception was made in favour 
 of the wife of a felon, when the crime was committed before the
 
 II, *258.] ACTIONS OF DOWER. 553 
 
 5. The widow shall not have her reasonable dower 
 unless she can aver by the country or in some other 
 manner, that she was capable of deserving dower in 
 the lifetime of her husband, whether she be a maid or 
 not, and though she be twenty or a hundred years old ; 
 nor where the husbands died so young, or in any other 
 such condition as to be incapable of consenting to 
 matrimony. 1 They are not however barred from re- 
 marriage. See Perkins, Profitable Book, s. 387 ; and compare 
 Coke Litt. 31 a. 
 
 1 It would appear from the above, that reasonable dower could 
 not be claimed unless the husband was of an age before his 
 death to consent to the marriage. This was not the rule of later 
 times. ' If the wife be past the age of nine yeares at the time of 
 the death of her husband, she shall be endowed, of what age 
 soever her husband be, albeit he were but four yeares old.' 
 (Coke Litt. 33 a.) And I do not find any authority for the 
 doctrine of the text in Bracton or Fleta. The former says that 
 the minority of the husband or the wife did not impede dower, 
 provided the wife was of ability ' dotem promereri et virum su.s- 
 tinere.' (Bracton f. 92.) And Fleta fixes the required age of 
 the wife at nine years and a half. (Fleta, p. 340, c. 23, 3, 348, 
 g 9 ; compare Littleton, Ten. s. 36 ; Coke Litt. 33 a.) But the 
 doctrine of Britton is supported by Hengham (Hengham Parva. 
 ]>. 88); and by the Register, where it is said, that a woman will 
 lose her dower if her husband die under age. (Regist. Brev. 
 Orig. 170.) And the annotator in MS. N. says that in all cases 
 where the husband was incapable of consenting to the marriage, 
 either because he was ' infra annos nubiles, i. e. ad xiiii. annos.' 
 or from any other cause, although there was no default in tho 
 wife, she should not have dower. So. it is said to have been 
 held in the 13th Edw. I., that a wife would lose her dower if her 
 husband died under nine years. (Fitzh. Abr. Dmcer, 172, citing
 
 554 BPJTTOX. [II, *258/;. 
 
 covering other kinds of dower. Neither ought a 
 widow to recover dower intheadvowson of any church 
 in whole or in part, unless she can aver that she was en- 
 dowed thereof ; *and still she may be barred by negli- 
 gence, if she afterwards without question or claim 
 permitted the heir of her husband or some other in his 
 name to present after the death of her husband. And 
 if the writ be obtained against the heir and the guardian 
 jointly, the writ falls if it be challenged, because 
 the guardian must always be summoned to produce 
 the infant whom the plaintiff alleges to be in his ward. 
 C. Again, the tenant may say that the plaintiff has 
 forfeited and lost dower by adultery, inasmuch as she 
 left her husband after he married her for the bed of 
 another, by which act she forfeited her dower. If to 
 this the wife replies that it ought not to bar or affect 
 her because she was afterwards reconciled to him, so 
 that he received her again, and in her seisin died, the 
 
 13 Ed. I. Iter North. ; but qu. whether it should not be read ele 
 for il ; that is, if the wife died under nine years.) In 12 Ric. II. 
 dower was allowed where the husband was ten years of age, and 
 the wife eleven at his death. Fitzh. Abr. Dower. 54. The 
 clause which follows in the text refers apparently both to the 
 wives of infants, and to widows of tender age, who, as it seems, 
 might claim dower certain, but not ; reasonable dower.' ' Al- 
 though the wife be not of ability to deserve dower, yet she shall 
 have it, provided that the assent of the husband was given at 
 their espousals ; because establishment of dower is a kind of 
 purchase which is not forbidden by the nonage ; and is there- 
 fore permissible.' (Note in MS. N.) This distinction -is also 
 found in Hengham, but does not appear to have been recognized 
 in later times. Compare Coke Litt. 33 a.
 
 II, *259.] ACTIONS OF DOWER. 555 
 
 tenant may say in answer that notwithstanding this 
 she still ought not to have dower, for that he did not 
 receive her of his own accord, but against his will by 
 coercion of Holy Church and by sentence of court 
 Christian. And if this be proved, the plaintiff shall 
 take nothing. 
 
 7. If the widow brings her plaint against the heir, 
 he may answer thus, that he is bound to warrant her 
 dower to her in case she was endowed and was im- 
 pleaded of her dower, provided he has the charters 
 delivered to him, which were his ancestor's, and which 
 she detains from him ; for otherwise he may perhaps 
 lose his inheritance ; so that he was never against as- 
 signing her dower, provided she would have delivered 
 up to him the *charters which belong to him, relating 
 to his inheritance. And if he can verify this, let it be 
 awarded that the widow restore the charters, and that 
 he assign and deliver to her her dower ; and the widow 
 shall remain in mercy for her false plaint. 
 
 8. Again, the tenant may say that she ought not to 
 be endowed, for that she was once impleaded of part 
 of the dower which she holds, and whereas she ought 
 to have vouched him as the warrant of her dower, she 
 vouched another, such an one by name, in disherison 
 of the right heir. And if the right heir can verify 
 this, she has forfeited all recovery of the residue of 
 her dower for her malice. 
 
 9. Or he may say that she wrongfully complains, 
 forasmuch as satisfaction was made to her for her dower 
 toy the value in land or money, wherewith she was con-
 
 556 BKITTON. [II, *259 b.. 
 
 tented. And if the wife admits the agreement, or 
 does not deny it, but replies that satisfaction was never 
 fully made to her, the demand of dower shall thereby 
 cease, and she may proceed by writ of covenant if 
 she thinks proper. Or he may say that heretofore she 
 recovered dower against him of the same tenements 
 by a like Avrit, and if this be verified or not denied, the 
 last writ shall fall, and the wife, if she pleases, may 
 sue judgment on the former writ. 
 
 10. It may also happen that several wives at one 
 time demand dower of the endowment of one husband, 
 whereas they ought not all to be endowed, *for one only 
 was his lawful wife, and she ought to obtain the dower. 
 But Avhich was his lawful wife and which his coucubine. 
 no secular judge can inquire, for the cognizance of mar- 
 riage and of testaments belongs to the court Christian ; 
 and so long as there is a dispute between two or more 
 wives, dower is not to be allowed, until it be proved in 
 court Christian which of them was the lawful wife of 
 the husband. 
 
 11. So where the lawful heir brings an action for his 
 inheritance and the wife for her dower at the same time, 
 dower is not to be granted until the plea relating to the 
 succession is determined, on account of the inconvenience 
 which might ensue. For if two wives who are contend- 
 ing about their dower were to be sent into court Chris- 
 tian, there to determine which of them, was the lawful 
 wife of the husband, and which his concubine, it might 
 perhaps fall out that she should prove herself to be the 
 lawful wife, who was not the mother of him who might
 
 II, *;>60.] ACTIONS OF DOWEK. 557 
 
 prove himself in our court to be the lawful heir, and 
 that the son of her who in the court Christian was 
 found a concubine, might prove himself in our court 
 the lawful heir. Therefore in the above case where 
 several heirs are disputing about their inheritance and 
 several wives about their dower, it is proper that the 
 pleas of dower should be suspended until it be decided 
 in our court to whom the succession is to be adjudged. 
 And accordingly, in the like *case of a dispute between 
 two clerks in court Christian, the prohibition by 
 Indicavit was first provided, to cause the plea in court 
 Christian to be suspended, until the question between 
 the patrons be decided in our court, by reason of the 
 risk which might arise to one of the alleged patrons in 
 respect of the advowson, if the plea in court Christian 
 between the clerks was determined before that between 
 the lavmen concerning the advowson. And as soon 
 
 / 
 
 as the heir has recovered his inheritance let dower be 
 assigned to his mother, but without awarding any 
 damages for" the delay, inasmuch as the delay was 
 warranted by the court, and did not proceed from the 
 wrongful act of the heir. And when the heir is thus 
 inseisin of the inheritance, whether rightfully, or wrong- 
 fully and the wife endowed, and another wife comes and 
 demands dower, and her son demands the inheritance, 
 in such case let the wife be told that she should first 
 cause her son to be proved lawful heir, and that then, 
 and not before, she shall be answered as to her dower. 
 12. Whether the wife who demands dower has a 
 child or not, that person is always the warrant of her
 
 BRITTON. [II, *260 b. 
 
 dower to whom the dower ought to revert after the 
 death of the wife, whether it be the heir or the chief 
 lord, .to whom the two other parts are escheated in 
 any way either by failure of blood, or perhaps for 
 felony, or by reversion. There is a case however ex- 
 cepted, where a wife recovers dower of one who was 
 enfeoffed by the husband or his heir, *the heir having 
 nothing left whereout he could warrant the dower or 
 make satisfaction in value ; in this case such dower 
 shall revert to him from whom it came, and yet he shall 
 not be warrant of the dower. 
 
 13. Or he may say that she ought not to have dower, 
 because her husband had not any right in the land, in- 
 asmuch as it was the inheritance or the estate in mar- 
 riage of his first wife. Or thus : because she of her 
 own accord and by her free will in her absolute widow- 
 hood released and quitclaimed all the right which she 
 had or might have in her dower. Or thus : for that 
 she is his nief holding of him in villenage as an astrer, 1 
 and he seised of her and of her chattels and her suit. Or 
 thus : for that the husband lost the tenement by judg- 
 ment as the right of another. Or, for that by the 
 custom of the country no widow was ever wont to be 
 endowed unless there were writings. Or, for that the 
 husband never in his lifetime had fee or demesne in 
 the tenement whereof she demands dower. Or, for 
 that the tenant was heretofore acquitted by judgment 
 of the same demand at the suit of the same plaintiff. 
 Or, for that he held nothing in the tenement whereof 
 1 See p. 456, note.
 
 II, *261.] ACTIONS OF DOWEK. 559 
 
 she demands dower on the day of the writ purchased, 
 or since. Or, for that he does not claim any freehold 
 therein, but holds it in another's right as guardian or 
 bailiff or termor or villain. *Or, for that he holds the 
 tenement jointly, in common with others, without 
 whom he cannot answer. 
 
 14. If any one say that he has only a freehold upon 
 condition until he has levied so much out of the profits, 
 or until such or such an event happens, yet the writ 
 shall not thereby abate but stand, and he may vouch 
 to warranty if he thinks proper. And as to the tenant's 
 exception, that she ought not to have dower because 
 her husband lost the said tenement by judgment, she 
 may answer by way of replication, that it was by 
 fraud and collusion, and by consent of the husband ; 
 and if this be proved, the exception will not avail. 
 
 15. Again, the tenant may say that her husband 
 aliened the land which she demands in dower before 
 he married her ; and if she reply, that such alienation 
 was for term of life or otherwise revertible to the 
 feoffor, and that this land was appointed to her for 
 dower in the original establishment thereof, as soon as 
 it became vacant ; and if the tenant denies this, let the 
 truth be inquired by the country. 
 
 16. Or he may say that she ought not to have dower, 
 for that the husband of whose death she demands 
 dower had another wife, whom he had married before 
 he married her who now complains, and that he en- 
 dowed that wife of these same tenements, and that she 
 is yet alive. In such case the tenant shall sue out a
 
 560 BRITTON. [II, *261 b. 
 
 writ to cause the woman, if any such there be, *to come 
 into court to acknowledge whether she makes any 
 claim. But if the plaintiff will aver the negative, to 
 wit, that her husband had not another wife, or that if 
 he had another wife, there is none now living ; in both 
 cases the plea shall be' removable into court Christian ; 
 and according to the return of the ordinary judgment 
 shall be given. 
 
 17. With respect to dower which a wife recovers 
 from a farmer holding for a term of years, let it be 
 awarded by the Justice ex offieio that the termor shall 
 retain the other two parts of the land until he has re- 
 ceived the value of the third part which he has lost. 
 And thus he will have a kind of freehold where before 
 he had not. But if the wife recovers all the land which 
 the farmer holds, as land whereof she was endowed in 
 certain, in such case the termor ought to recover from 
 his lessor by judgment in the plea of warranty to the 
 value of the land. And if the lessor lias no land where- 
 with he can warrant his term, it shall be awarded ex 
 officio by the Justices that he shall recover of his lessor 
 
 *4/ / 
 
 to the value when the land included in the dower shall 
 fall in, or any other out of which he can make satisfac- 
 tion ; and let this award be enrolled, so that when the 
 time comes he may have remedy by writ of judgment 
 upon such enrolment.
 
 II, *262.] OF THE JUDGMENT. 561 
 
 *CHAPTER XL 
 Of the Judgment in an Action of Dower. 
 
 1. When it cannot be denied that the widow ought 
 to have dower, let it forthwith be awarded that she 
 recover seisin of her dower, and her damages to be as- 
 sessed by the jury, as before mentioned. 
 
 2. But although the widow recover dower, she may 
 lose it in several ways, as where her warrant loses the 
 two other parts by judgment without any collusion, 
 then she will lose her dower. So she may be deprived 
 of it by the custom of the country, as particularly in 
 Kent, and sometime there was such an usage in London 
 and in many other places, 1 that as soon as the widow 
 is married to another husband, or becomes with child 
 by any other than her first husband, she may be im- 
 mediately ejected from her dower. 
 
 3. So if a widow is disseised of her dower, and after 
 a long interval and peaceable seisin of the disseisor 
 she takes the seisin by her own force, refusing to pro- 
 ceed by judgment, if the disseisor can recover seisin 
 by assise of novel disseisin, the widow shall never re- 
 
 1 The form of expression, which seems to imply that the 
 custom was no longer enforced in London, is not found in the 
 parallel places of Bracton and Fleta. 
 36
 
 562 BKITTON. [II, 
 
 cover her dower except by the aid of the heir, or by 
 writ of right of dower wherein she shall count of her 
 own seisin. 
 
 CHAPTER XII. 
 
 Of the Plea of Rigid of Dower. 
 
 1. There are three cases in which a widow has na 
 recovery for her dower, save by writ of right of dower 
 patent pleadable in the court of the warrant. *The 
 first is where the widow has lost her seisin by assise of 
 novel disseisin, as before is mentioned. The second, 
 where the widow demands part of the land or tenement 
 in dower, as of her reasonable share, and is already 
 seised of the rest. The third case is where she is de- 
 forced of anything which is appurtenant to her dower. 
 
 2. These pleas shall be commenced and tried in the 
 same manner as the great writ of right patent, but not 
 so as to admit of deraignment J or of essoin de mala 
 lecti, and are removable into the County, and from 
 thence before our Justices, in all the ways that shall 
 be hereafter mentioned in the plea of right by the 
 great writ. Demand of view and voucher of warrant 
 also lie. 
 
 3. If the tenant desires to defend himself, or is war- 
 ranted by another who defends him, the answer may 
 
 1 This word ' deraign ' appears to be used here of the mode 
 of trial used in the ordinary or ' great ' writ of right, namely, 
 battle or great assise. The proof in writ of right of dower was 
 by ' the country.' See Bracton, f. 313 b. ; Fleta, p. 359 (1.2).
 
 II, *293.] OF ADMEASUKEMENTS. 563 
 
 be, that the plaintiff wrongfully demands dower, for as 
 much as she of her own free will delivered up or sur- 
 rendered the tenement to him, and released andq uit- 
 claimed her right ; or that she heretofore withdrew her-* 
 self from a like, writ before such a Justice ; or that the 
 tenement demanded does not belong to her dower; or 
 that although she was sometime seised thereof, she 
 was not so seised as of her dower ; or that she was never 
 endowed thereof, but of other land specially named ; 
 or that she was endowed of less than the third part, 
 and was contented therewith ; or that she has more 
 than belongs to her to have for her dower ; and in the 
 last case if she will not consent to admeasurement, and 
 the tenant is ready to verify this as his *exception, the 
 widow shall take nothing by her writ, but remain in 
 mercy ; and let the tenant proceed for admeasurement 
 of the dower whereof she was endowed, whether in cer- 
 tain or of the third part. 
 
 CHAPTEK XIII. 
 
 Of Admeasurement of Dower. 
 
 1. Admeasurement is nothing else but the reducing 
 to measure what before was out of measure, and ex- 
 tends as well to a thing which does not belong to dower 
 as to the excess and superfluity of it. But whether the 
 widow holds in dower too much, or a thing which she 
 ought not to hold, yet she is not to be ousted or ejected 
 without judgment. Therefore it is proper to proceed 
 for remedy by writ of admeasurement of dower.
 
 564: kKITTON. [II, *263 b. 
 
 2. When the sheriff has taken pledges for the prosecu- 
 tion of the plaint, it is his duty to summon the widow to 
 appear on a certain day. He ought likewise to summon 
 the coroner and the knights and other freemen of the 
 neighborhood. At which day, if the plea is not removed 
 by Pone, it is the duty of the plaintiff to set forth his 
 plaint according to the tenor of the writ, if the widow 
 is present. And if she is not there, or if she is there 
 and cannot say anything whereof the admeasurement 
 ought not to be had, let the ad measurement be straight- 
 way made upon the oaths or freeholders then present 
 by good and lawful extent. *Then let it be inquired, in 
 Avhat manner her dower was established on her, whether 
 in certain or of the third part, and according thereto let 
 the admeasurement be finished, yet so that any improve- 
 ment which has been made by the widow be not 
 included in the extent but fall entirely to her. 
 
 3. If the widow chooses, she may say in answer 
 many reasons why the admeasurement ought not to be 
 taken ; as, that the heir was of full age when he en- 
 dowed her ; or, that she has held dower before the time 
 named in the assise of novel disseisin ; or, although the 
 heir endowed her by his guardian, or, although she 
 was endowed by our escheator or other when the heir 
 was under age, yet that since he has attained his age 
 he has agreed to and confirmed the said assignment ; 
 and by several other exceptions she may hinder the 
 admeasurement. 
 
 4. If the plea is in our court, and the defendant makes 
 default, distresses and attachments shall run as per-
 
 II, *264.] WRITS OF ENTRY 565 
 
 sonal actions and such further process as is mentioned 
 in our statute. 
 
 5. When the widow lias by just measurement that 
 which belongs to her for her dower, she has no power 
 to make any sale of the dower or anything that be- 
 longs to it beyond her life, or to make exile of villains, 
 or enfranchise them, or commit an\ 7 waste ; and if she 
 does so, the remedy provided by our statutes shall be 
 pursued. 1 
 
 "CHAPTER XIV. 
 
 Of the Actions founded on Writs of Entry. 
 
 1. There are some possessory causes which savour 
 much of the right of property, as the action of entry, 
 the right of customs and services, where both the words 
 solet and debet are contained, of Quo jure, of reasonable 
 bounds, of reasonable estovers of each kind, and others 
 like. 
 
 2. In the plea of entrv there are three degrees. The 
 
 J. / 
 
 first is, where one demands land or tenement of his 
 own seisin after a term of lease expired. The second 
 is, where one demands land or tenement after the ex- 
 piration of a term of lease created by another. The 
 
 1 ' Note, that waste, sale, and exile, are three tilings that 
 touch disherison ; wherefore termor doing them justly loses his 
 tenancy as one who disinherits another : for by his act he proves 
 himself to claim an estate which he ought not to have, and by 
 consequence shall lose all, as it is said in reprobation (en re- 
 prover): Often michel yerne bringes littel horn.' (Note in MS.
 
 566 BRITTON. [II, *264 b. 
 
 third is, when a tenement is demanded of a tenant who 
 had entry by one to whom some ancestor of the plain- 
 tiff leased it for a term which is expired ; and accord- 
 ing to these degrees the writs of remedy are varied. 
 There is still a fourth form, which is out of the degrees, 
 and is derived from a more remote seisin to Avhich the 
 other three degrees do not extend. The second degree 
 contains the wordjyer the third the words per and cui 
 and the form beyond the degrees the word post, that is 
 to say, after the lease, or after the disseisin which 
 such an one made to such an one. And if any writ of 
 entry is not framed agreeably to the case, so that one 
 form is obtained instead of another, the writ is defec- 
 tive, and therefore abatable. 
 
 3. The form in the first degree is as follows. ' Com- 
 mand W. that he render to P. the manor of C. with 
 the appurtenances, which he demised to him fora term 
 which is past.' The second form is thus. ' Command 
 J. that he render to P. the manor of C. in which he 
 hath not entry save by E. mother (or uncle, cousin, 
 grandfather, or great-grandfather) *of the same P. who 
 leased the aforesaid manor to him for a term which is 
 past.' The third form is as follows. 'Command J. 
 that he render to P. the manor of O. in which he hath 
 not entry save byT. to whom such an one father, (or 
 mother, cousin, grandfather, or great-grandfather, &c.), 
 whose heir the same P. is, leased the said manor for a 
 term which is past.' And the form beyond the degrees 
 is thus : ' in which he hath not entry save after the 
 lease which such an one, father (or mother, tfcc.) whose
 
 II, *265.] WRITS OF ENTRY. 567 
 
 heir he is, made, &c.' And from these four are drawn 
 the forms of all kinds of writs of entry, which are of 
 infinite number. 
 
 4. This writ, so long as the degrees and term will 
 permit, lies as well against strangers who have entered 
 by disseisors, whether one or more, as against the heirs 
 of the disseisors and against those who enter by such 
 heirs as far as the person in the third degree, as for 
 example in this form. ' Command P. that he render to 
 J. the manor, &c., in which he hath not entry save by 
 T. son and heir of S. who leased the same manor to him 
 .after the same S. had wrongfully disseised the aforesaid 
 J. thereof ; ' or, if the disseisee is dead, and his heir 
 brings the action against the heir of the disseisor, then 
 thus : " in which he hath not entry save by T. son and 
 heir of S. who leased the same manor to him after the 
 "*same S. had wrongfully disseised E. father (or mother 
 
 o / 
 
 or other ancestor) of the aforesaid J. and whose heir 
 he is.' 
 
 5. But if one commits disseisin of a tenement which 
 was the right of his own wife, and the disseisor dies, 
 -iind the wife abides therein, and continues the like seisin 
 as her husband had in his lifetime, and dies so seised, 
 and her heir after her death enters and continues the 
 same seisin, and the disseisee brings a writ of entry 
 against the same heir, although the heir should make 
 answer that he had not entry by any disseisin which 
 his father or ancestor made thereof, but by descent 
 from his mother, who died seised thereof in her demesne 
 as of fee and of right, yet he is bound to answer to the
 
 568 BRITTON. [II, *265 b. 
 
 entry of the ancestor from whom his mother's seisin 
 was merely derivative. For although the mother die 
 in her demesne as of fee, yet she had a tortious entry 
 by the disseisin of her husband ; and because by mean& 
 of such defective entry, although derivative, the land 
 is come to the heir, the heir is bound in such case to 
 answer to the entry, 
 
 6. If the tenement pass the third degree of blood by 
 succession, the remedy by writ of entry will not avail. 1 
 But in such cases a writ is used to be framed as follows. 
 ' Command P. that he render to J. the manor, whereof 
 T. disseised the same J. or others of his ancestors, whose 
 heir he is,' without making mention of the entry. 
 Again if any one disseised the disseisor, and afterwards 
 *aliened that tenement, he cannot in such case say, 
 ' which the first disseisor leased to him ; ' and therefore 
 let it be said thus : ' in which he hath not entry save 
 
 1 ' Nota, that if the tenements be come to several hands, as to- 
 five, or ten, or twelve, the writ of entry still lies, because noth- 
 ing has accrued to the last purchaser more than to the first. But 
 if they be come to four heirs in lineal succession, or to three, 
 secundum quosdam, so that each has been seised, and the last is 
 in possession, he is as it were inherited (come enherite) in the 
 right, although the mere right be in another. And also if a 
 grandfather has leased a tenement for a term, and the gi'and- 
 father, his son, his son's son, and his son's son's son, die before 
 the term be passed, so that the demandant is in the fourth de- 
 gree, he cannot recover by writ of entry ; because it is a writ of 
 possession mixed with the right, and he ought not to be in better 
 condition in this case than if his ancestor, i. e. the great-grand- 
 father, had died seised.' (Note in MS. N.)
 
 II, *265 ft.] WRITS OF ENTRY. 
 
 by such an one, who disseised such an one, after the 
 last named had disseised the plaintiff,' or his heir 1 near 
 or remote ; or the entry need not be mentioned. 
 
 7. This action lies only against those who hold tene- 
 ments beyond the term for which they are leased, and 
 against their heirs and assigns, and against those who 
 had entry into any tenement by intrusion or by disseisin, 
 and also against the heirs and assigns of the disseisors 
 and intruders, who had entry therein by them by 
 succession, lease, or feoffment ; and against those who 
 had entry by feoffment of bailiffs, guardians, villains, 
 or others who had nothing save for term for life or 
 vears, or a simple tenancy, or of infants under age, or 
 by feoffments made by compulsion in prison, or by mad 
 persons, or by the parson of a church, or a monk or 
 canon removable, 2 without the assent of the bishop and 
 the patron ; or by felons or bastards, or by others who 
 cannot alien anything of the right. So likewise 
 against those who have deceivably purchased tenements 
 upon a promise to do such or such a thing, and when 
 they are enfeoffed thereof, refuse to perform it. 
 
 8. The word 'term,' extends as well to a term oflife 
 as to a term of years. But he who leases only for a 
 
 1 This word should apparently be ' ancestor.' The error, if it 
 be so, is probably derived fromFleta, where the \vordishceredem. 
 
 2 See vol. i. p. 159, and the note there ; and compare Year 
 Book, 31 Edw. I. p. 454. The words in Bracton are, ' a canon 
 without the assent of the bishop and chapter, an abbot without 
 the consent of his chapter, or a cellarer clerk or other procura tor 
 without the consent of his abbot or prior. (Bracton, f. 318.)
 
 570 BRITTON. [II, *266. 
 
 *term. of years, although he make the lease for a term 
 of a hundred years, leases the profits only, and retains 
 to himself the fee and the right and the freehold, if he 
 had them before the lease ; and all that he retains he 
 will leave at his death to his heir ; or he may, without 
 doing any wrong to the farmer, give and alien it to a 
 stranger; or he may release and quitclaim every sortof 
 right to the farmer himself, and enfeoff him, without 
 first ousting the farmer of his seisin, such as it is. This 
 he cannot do to a stranger, unless the farmer of his 
 own consent will attorn to the purchaser ; for the seisin 
 of the alienor is all along continued by the farmer who 
 enjoys his seisin in the name of his lessor. 
 
 CHAPTER XV. 
 Of the Proceedings in an Action of Entry. 
 
 1. The tenant being summoned may cause himself to 
 be essoined de tnalo veniendi and the plaintiff the like. 
 The tenant may also demand view of the thing in 
 demand ; and may vouch to warrant, whether mention 
 be made of entry in the writ or not ; so nevertheless 
 that if such mention be made, the voucher shall be 
 from person to person, and from warrant to warrant, of 
 the persons named in the writ in order up to the first 
 disseisor, or other entror, or his heir. For other 
 warrants than those named in the writ ought not to be 
 Touched. 1 And if no mention is made of the entry in 
 
 1 That is, if the tenant does not deny the entry to have been
 
 II, *266 l>.] OF THE PROCEEDINGS. 571 
 
 *the writ of degrees, then others who are not named in 
 the writ may be vouched, if the vouchers have sufficient 
 ground for doing so. 
 
 2. If the plaintiff founds his case upon the right, 
 -counting in the right by descent or by resort, as in the 
 plea of right, and coming down at the end of his count 
 to the entry, in such case the defendant or tenant 
 has two modes of defence. For he may undertake to 
 defend the entry upon the possession, in which case 
 he tenders averment by a jury, or pleads an excep- 
 tion. If, on the other hand, he chooses to defend the 
 descent of the right, he has three ways of defending 
 himself, either by the body of one his freeman, or by 
 putting himself upon the great assise, or by having the 
 plea determined by a jury. If he be defended by battle, 
 or the great assise, where the plaintiff has tendered 
 deraignment, or agreed to the great assise, then the 
 tenant may on the second day of plea have himself 
 essoined de malo veniendi as after appearance, and at 
 the next day beessoined demalo lecti, and so he may lie 
 for a year in lanquore. And in this case the proceedings 
 shall be in all points as will be stated concerning the plea 
 .of right ; because at the tenant's election and by his 
 defence the right of possession is disregarded, so that 
 the action of entry is entirely changed to the nature of 
 a plea of right. But this never happens upon the 
 election of the plaintiff ; therefore in every plea which 
 savours of both rights it is entirely in the defendant's 
 
 ^s statnd by the plaintiff. Compare below, c. 16. s. 2 ; Bracton, 
 f. 321 ; Year Book, 81 Ert\v. I. p. 336.
 
 572 BRITTON. [II, *26T. 
 
 ^choice either to defend himself in the right of property 
 by battle or by great assise, or to defend himself in the 
 right of possession. And in some cases also it is in his 
 power to cause the plea of right to be changed into one 
 of possession, as shall afterwards be noticed ; for if 
 mention be made of the entry in counting in the plea 
 of right, and the defendant chooses to waive the defence 
 in the right and to defend the entr}% and so the pos- 
 session, the nature of the writ of right is so changed, 
 that neither battle, nor great assise, nor essoin de mala 
 lecti will lie, but the plea shall be determined by jury. 
 
 3. Nevertheless there are some writs of entry, and of 
 customs and services, which will nowise admit of being 
 changed from a possessory nature to that of a plea of 
 right ; as, where a person has leased for a term of years 
 his tenement Avhich he held for term of his life or for 
 a greater term of years, and at the end of the lease 
 demands back again his own seisin ; or if he demands 
 by writ of entry a tenement which he demised for a 
 term, and in which he had a fee without ever having 
 taken esplees ; so, the writ of customs and services where 
 the debet is omitted. 
 
 4. It is to be well observed, that in all pleas what- 
 soever, where the writ makes mention of both rights, 
 and the plaintiff in his declaration counts by means of 
 the right as well as concerning the possession, if the 
 defence proceeds upon the right, however the plea is 
 ended, whether by a jury or in any other manner, 
 there is no resort to the writ of right, because all the 
 right is determined. But if the defence of the ri<rht
 
 II, *268.] ACTION OF ENTRY. 573 
 
 is waived and the possession only is defended, there 
 will be a further expedient, and a remedy by writ of 
 right, whether the jury find for the plaintiff or for the 
 defendant. 
 
 CHAPTER XVI. 
 
 Of Exceptions in the Action of Entry. 
 
 \. In this plea the tenant may aid himself by general 
 dilatory and peremptory exceptions. Thus he may 
 admit the entry by the term, but say that within the 
 said term the land was released and quitclaimed, or 
 given to him in fee. But in this case, it must be dis- 
 tinguished whether the exception can be proved by 
 charter or writing, or not. For if by writing, which is 
 proved or not denied, the judgment is clear. And if 
 not, and both parties have gone to a jury upon the 
 entry by the count and by defence also through the 
 right, then instead of the great assise let the recogni- 
 sance of the jury be taken in these words : to recognise 
 upon their oaths whether the aforesaid P. had other 
 right or other entry in the aforesaid land save *by J., 
 who demised the land to him for a term which is 
 passed, or whether the said P. had entry in that land 
 by the same J. who sold or gave or quitclaimed the 
 same to him in fee, as the said P. says, and whereof 
 he acknowledges that the abovesaid J. the same land 
 first demised to him for a term, but further says that 
 during his term he released the same to him in fee. 
 
 2. Again, the tenant may say that he had not entry
 
 574 BRITTON. [II, *268. 
 
 by such an one, but by another person named ; and in 
 such case the tenant is not obliged to vouch the latter 
 to warranty, but it will be sufficient for him to abate 
 the writ. And if he waive the exception, it may per- 
 haps prejudice him. 
 
 Here ends the Law of Possession, and begins the 
 Law of Property.
 
 BOOK VI. 
 
 OF PROPRIETARY ACTIONS. 
 
 INTRODUCTION. 
 Of the Plea of Right. 
 
 HAVING finished the form and manner of pleading 
 the possessory right, we must now treat of the manner 
 of pleading upon the right of property, which in the 
 order of pleas is the last of all remedies ; so that none 
 can descend from a writ of right to a writ of a lower 
 nature, although the reverse may be done. 
 
 ^CHAPTER I. 
 
 Of Proximity of Heirs. 
 
 1. This action alone by the manner of counting tries 
 the proximity of heirs with respect to the succession to 
 the inheritance. For inheritance is the succession of 
 the heir to every right of which the ancestor died 
 seised. And from inheritance is derived heir, who is 
 the successor to every right which the ancestor had at 
 the time of his death. And this right sometimes de- 
 scends like a weighty body, and sometimes ascends. 
 And although the possession does not always follow 
 
 the mere right, yet in the end it will return to it, if the 
 
 575
 
 576 BRITTON. [II, *269. 
 
 right heir proceeds in a proper manner. For to the 
 right heir descends the mere right which his ancestor 
 
 O 
 
 had when he died, whether the heir at the time of his 
 ancestor's death be in the country or beyond sea, and 
 whether he is in his mother's womb or already born. 
 
 2. All children however are not admissible to the 
 inheritance, for some are natural and legitimate ; l and 
 t>f those who are both legitimate and natural, some are 
 sons and heirs, others sons and not heirs ; and some are 
 heirs of their fathers, some of their mothers, and some 
 on both sides, and others are not heirs to either, al- 
 though they are both legitimate and natural ; and some 
 begin by being heirs and afterwards perhaps cease to 
 be so, and others not. And of natural and legitimate 
 heirs, some are near and some again nearer, *and some 
 remote and others more remote. For all brothers on 
 the father's side are near heirs of their father by reason 
 of the share they have in the possession. This is un- 
 deniable, because if the younger brother keeps his 
 elder brother out of his inheritance, and has taken the 
 profits and peaceable seisin thereof, the eldest shall 
 
 1 A clause appears to have been left out by the copyist here, 
 owing to the repetition of the same word. The text should 
 probably stand thus : Car acuns sount naturels et mulerez, et 
 acuns sount naturels et nient mulerez, et acuns ne sount ne 
 naturels ne mulerez. See the parallel places in Bracton and 
 Fleta, referred to above. According to Bracton. a natural child 
 is one born of parents between whom at the time of intercourse 
 a legal marriage is possible, as between a bachelor and a maid 
 not of kin to each other. And children born ex prohibito coitu 
 are neither legitimate nor natural. (Bracton, f. 64.)
 
 II, *269 &.] OF SUCCESSION. 577 
 
 have no recovery in the right of possession, as before 
 is mentioned, but he is driven to demand his inherit- 
 ance by means of the writ of right, which writ alone 
 tries who is nearest heir in blood. And accord in <r as 
 
 O 
 
 it shall be found by counting of the proximity among 
 brothers judgment shall be given. But in all cases that 
 person is next heir at law to whom the mere right 
 soonest descends. 
 
 CHAPTER II. 
 Of Succession, and the Law of Inheritance. 
 
 1. All those who first descend from the common 
 stock from degree to degree in the direct line for ever 
 are lawful and true heirs ; and when default is found 
 in the direct line, then those who are found to be the 
 nearest in the collateral degrees for ever are the right 
 heirs ; and lastly, when default is found in the trans- 
 verse line descending, those who appear to be nearest 
 in any *transverse line ascending shall be admissible. 
 But although the heirs so ascending forever are lawful 
 and right heirs, yet they are not all admissible at the 
 same time to the succession, because the eldest, being 
 nearest, excludes the youngest who is near, and he who 
 is near excludes the remote, and the remote one more 
 remote. And when all these fail, either by their blood 
 becoming extinct, or by their right being forfeited by 
 judgment of felony, the tenement must of necessity 
 return to the lord of the fee, as to the source from 
 37
 
 578 BRITTON. [II, *270, 
 
 which it first issued, for want of any other direction in 
 which it can go ; and in such case the homage received 
 for the tenement is extinguished. 1 
 
 2. There are many things which constitute proximity, 
 and confer an inheritance and right of succession, to 
 wit, sex, age, line, a partible inheritance, plurality of 
 female heirs, form of gift, and blood. Sex, because the 
 male is to be received and the female rejected, so long 
 as there is a male heir apparent of the father by the 
 same mother ; but the daughter begotten on the first 
 wife is to be preferred in the succession to the marriage 
 granted with her mother to the male begotten by the 
 same father on the second wife. 
 
 3. Age is material ; because he who is the first born 
 is admissible before the younger son of the same father 
 and mother, and the younger brother will remain 
 nearest heir to the elder, or at least a near heir, *accord- 
 ing as the elder shall have issue or not. And if the 
 elder brother dies without heir of his own in the life- 
 time of his father, the younger brother will take his 
 place, and begin to be next heir to their common father, 
 and the other younger ones will be near ; and so of 
 those more remote, without end. 
 
 4. If the elder brother dies in his father's lifetime, 
 having begotten an heir, this issue remains under the 
 authority of the grandfather, and shall be next heir to 
 the grandfather by reason of the mere right which de- 
 scended to him by the death of his father, the grand- 
 
 1 See above, pp. 360 and 361, and the note there.
 
 II, *270 1.] OF SUCCESSION. 579 
 
 father's son, although the son did not live to attain any 
 estate ; and the uncle or aunt shall be only near heir, 
 although he is one degree nearer than the grandson, 
 who is next heir. Therefore if the uncle, or aunt, being 
 out of seisin, demand the seisin of his father by assise 
 of Mortdancester, or by writ of right against the grand- 
 son the exception of proximity shall bar him ; and in 
 like manner if he demand against a stranger. And if 
 the uncle or aunt is in seisin, and keeps out the grand- 
 son, the grandson, being next heir, shall recover by 
 means of the writ of right by pleading his descent. 
 And what is here said of the younger brother, uncle to 
 the near heir, may be taken as an example of the 
 position of near heirs in all like cases. 
 
 5. Line is material ; because the daughter found in 
 the direct line descending is to be preferred before the 
 male found in the transverse line. 
 
 6. Of a partible inheritance, the younger son, as 
 before has been mentioned, shall have as great a share 
 as the elder ; and in this case the custom of the place 
 shall be observed. 
 
 *7. Plurality of female heirs affects the succession, as 
 in case of sisters parceners, who, whether they are be- 
 gotten of one or of several mothers, all present them- 
 selves in the place of one heir, and no one of them is 
 to be preferred before another, neither can one be heir 
 to the others ; for that would imply a nearer proximity 
 in one than in another, which there is not, since they 
 are all equally nearest. And if one of them dies, the 
 shares of the rest shall be thereby increased, but not
 
 580 BRITTON. [II, *271. 
 
 by succession, but by a kind of right called that of 
 accruer. 1 
 
 8. The form of gift is also material, as appears in 
 the case of feoffments, whereby strangers are admis- 
 sible to the succession in preference to the next heirs, 
 who are excluded by the feoffors. For the wills of 
 donors are to be observed as far as the law can permit ; 
 and although such strangers are not right heirs, yet 
 they shall be in the place of heirs. And so shall all 
 those stand in the place of heirs to whom lands or tene- 
 ments fall by any manner of reversion or of escheat, 
 whether it be by default of blood or by forfeiture. 
 
 9. Right of blood sometimes causes the female to ex- 
 clude the male. For if A. begets by one wife a son 
 and a daughter, and by another wife a son, the eldest 
 son is next heir to the father and *the mother, and if 
 he dies without issue of his own, the sister is nearer 
 heir to the deceased brother than the younger brother 
 by the second or third wife. And so likewise the issue 
 of the sister. But the first issue shall never demand 
 any part of the inheritance of their step-mother until 
 
 1 It appears to follow from the doctrine of the text, that if an 
 inheritance descended to several daughters by two wives, the 
 share of one coparcener dying without issue would go by sur- 
 vivorship or accruer to all the others, and not by descent to her 
 sisters of the whole blood. A similar doctrine is to be found 
 obscurely expressed in Bracton. f. 66 6. (Compare Bracton, 
 f. 77 b ; and see above, p. 73, and note there ; Blackstone, Com- 
 mentaries, vol. ii. p. 231, note.) In modern times no jus accre- 
 scendi has been admitted between parceners. (Blackstone, 
 Commentaries, vol. ii. p. 188.)
 
 II, *271 &.] OF SUCCESSION. 581 
 
 after the decease of her issue, and if she has no issue 
 by their father, they can never demand any part of the 
 inheritance of their step-mother ; nor, although she has 
 issue by their father, if her inheritance did not descend 
 to their brothers or sisters, the children of their common 
 father by their step-mother. But if the inheritance 
 falls to their brothers or sister, the children of the same 
 father by a different mother, and the issue of their 
 step-mother fails, an action immediately accrues to 
 the first children, or to their issue, to demand the seisin 
 of the last children, or of their issue. 1 
 
 10. Of issue begotten upon the same mother by 
 different fathers, the son by the first father and his 
 issue are nearer, and are sooner to be admitted to every 
 inheritance on the part of their mother, as well as on 
 the part of their father, than the younger sons ; and if 
 they die seised and without issue, the sisters by the 
 same father and mother are to be preferred to the 
 brothers by the same mother and different fathers- 
 *But if no male child of the first husband, or his issue, 
 survive to attain the inheritance of his mother, then 
 the males by the second husband are admissible to the 
 
 1 1 do not find any autkority in Bracton for the succession of 
 the half-brother to an inheritance descended from his step- 
 mother, a stranger in blood. But see the Year Book, 33 Edw. I. 
 p. 444. Bracton allows a man to be heir to his half-brother in 
 respect of land purchased by him, in default of brothers or 
 sisters of the whole blood. And in respect of land descended 
 from their common father, he appears to doubt whether the 
 half-brother would not be preferred to the sister of the whole 
 blood. (Bracton, f. 65, 65 6. 66 b.)
 
 582 BKITTON. [II, * 271 I. 
 
 inheritance of the mother before the females by the 
 first husband ; but if any male of the first husband has 
 issue, male or female, this issue is to be admitted to 
 the inheritance of the mother before the males by the 
 second husband. 
 
 11. Sometimes also the younger sister excludes the 
 elder brother, as where John begets by his first wife a 
 son, and by his second wife a son and a daughter, and 
 the younger son purchases lands or tenements, and dies 
 without heir of his own body, the sister of the 
 purchaser shall carry off the inheritance and exclude 
 the elder brother, although the brother would be 
 sooner admitted to the inheritance descending from the 
 person of John the common father. And if John has 
 issue two sons and two daughters by diverse mothers, 
 the elder brother is nearest heir to John, and after 
 him the younger, if the father survive the eldest son ; 
 but if one of these brothers makes a purchase, and 
 dies without heirs of his own body, the sister of the 
 same venter as the purchaser shall be the nearest heir, 
 and shall exclude the brother and sister of the other, 
 venter, if not barred by homage. 1 
 
 
 
 1 It is probably meant that an elder brother of the half blood 
 will be excluded in favour of a sister of the whole blood, even 
 where the relation of homage between the two half-brothers 
 does not present an obstacle to the descent to the brother, as 
 would be the case where the tenement of the deceased was 
 derived by gift from the common father. Compare Glanvill, li. 
 vii. c. 1 ; Bracton, f. 65 b ; Fleta, p. 371 ( 15, 16); and see above, 
 p. 34, note.
 
 II, *272.] OF SUCCESSION. 583 
 
 12. If there are three or more brothers by the same 
 father and mother, and the youngest of them all makes 
 a purchase and dies without heir of his own body, the 
 eldest brother shall be his next heir, and shall exclude 
 the father and mother, although they are nearer in 
 blood, because the brother is found to be the nearest in 
 the same degree, which the father and the mother are 
 not ; and he shall also exclude the other brothers and 
 sisters, although they are found in the same degree. And 
 even if the intermediate or other brother be in seisin, 
 yet the eldest shall obtain it by a writ of right. And if 
 the eldest brother dies without heir of his own body, then 
 it shall go to the next eldest brother, and so from 
 brother to brother, until it comes to the sisters. And 
 if neither brother nor sister nor any issue of them ap- 
 pear, then it shall go to the common father ; 1 or if the 
 father be dead, and no other be found in any degree 
 nearer on his side, to the common mother ; and so of 
 all the other degrees ascending. In what manner the 
 degrees branch out will appear by the following degrees 
 .of kindred. 
 
 1 See note, p. 325.
 
 584 BRITTOK [II, *272 6. 
 
 CHAPTER III. 
 Of Degrees of Kindred. 
 
 1. There are various degrees of kindred, as will 
 appear in the following figure. It must be observed, 
 no one, whether male or female, found in any degree 
 in the collateral line, either ascending or descending, is 
 admissible to succeed, so long as any person is found 
 alive in the direct line descending ; but when no one is 
 found there, then we are driven of necessity to seek the 
 degrees in the collateral lines. 
 
 2. It is always proper to begin to count from the 
 common stock last seised of both rights, and so descend- 
 ing in *the direct line from degree to degree, without 
 stepping over any, to the plaintiif, and not only through 
 all the occupied degrees in the direct line, but some- 
 times through the vacant degrees ; as in case where 
 the eldest son, having issue, dies before his ancestor. 
 Sometimes in counting by descent the vacant degrees 
 are passed over, as, where the eldest sons die without 
 heirs of their bodies in the lifetime of their ancestors ; 
 for if an eldest son dies without issue in the lifetime of 
 his ancestor, it is never necessary to count through him, 
 because he did not survive until any estate descended 
 to him, but such degree is quite vacant ; so also if he had
 
 II, *273.] OF DEGKEES OF KINDRED. 585 
 
 an heir who died without issue ; and in such case the next 
 brother occupies his place by reason of the mere right, 
 which attaches to him as the next of blood. And if 
 there is not any brother, then the right of succession will 
 attach to the sister or sisters ; and if there is no sister, 
 then it will resort to the next occupied degree on the side 
 of that ancestor from whom the inheritance moves in 
 some collateral line. And as soon as he becomes seised 
 of both rights, he begins to make a direct line as to 
 issue begotten by him, and to be a common stock with 
 regard to the heirs derived from him. *Yet if any one 
 chooses to count through a person, or v his children, 
 who did not live until any estate descended to them by 
 the death of the common ancestor, it does no harm ; 
 but in such case he ought not to say that the right of 
 succession descended, but that from John ought the 
 right to have descended to Peter, and from Peter to 
 Thomas as his grandson and heir ; but inasmuch as such 
 son or grandson did not live until such right descended 
 to him, because he died in the lifetime of the common 
 ancestor, the right descended to the second brother or 
 to the other next heir. And sometimes the count is 
 divided into branches by reason of plurality of heirs, 
 as in case of sisters parceners, where it is proper first 
 to count through all the degrees of the issue of the 
 first, and then of the second, and so of the rest. 
 
 3. For the assistance of learners, a figure may be 
 made to show more plainly the degrees and the lines 
 direct and collateral, whereby a person may be better 
 acquainted with the law of successions. Let therefore
 
 585 BRITTON. [II, *273 I. 
 
 a perpendicular line be drawn, and in the middle of it 
 let a void space be left for the supposed plaintiff, and 
 let his father or mother be placed above him as the first 
 ancestor, and that will make the first degree. Above the 
 father or mother let the grandfather or grandmother of 
 the plaintiff be put as in the second degree, and above 
 the grandfather the great-grandfather or the great- 
 grandmother, *as in the third degree ; and above the 
 great-grandfather the great-great-grandfather and so 
 higher and higher by different degrees as far as the 
 time limited in a writ of right will allow. And directly 
 under the plaintiff let son or daughter be placed, which 
 will make the first degree descending ; and under him 
 grandson or granddaughter, to make the second degree; 
 and lower again the son or daughter of the grandson 
 or granddaughter to make the third degree, and 
 so descending from degree to degree ad infinitum. 
 
 4. If there be found no plaintiff in the direct line to 
 whom the right of succession can descend, then of 
 necessity it must descend to the collateral degrees, that 
 is, to the nearest to the father or the mother, as, to the 
 uncle or aunt, and so on, descending in that line from 
 degree to degree so far as they continue, and then for 
 default of degrees found in the first collateral line, it 
 must resort to the grandfather in the direct line, and 
 afterwards for default there, resort to the brother or 
 sister of the grandfather in the collateral line, and so 
 from degree to degree so far as they shall be found 
 full ; and so of all the other higher degrees, so that the 
 right of succession shall fall to those who shall be found
 
 II, *274.] OF DEGREES OF KINDRED. 587 
 
 in the direct line, if none can be found anywhere below 
 him to whom the right may descend. 1 *And for 
 default of him who would have made a degree in the 
 direct line the right shall descend to one who shall be 
 found in the collateral line, and for default of a degree 
 in the collateral line the right shall resort again to the 
 direct line at a higher degree, and if it find that degree 
 full, it shall attach there ; if not, it shall go on descend- 
 ing in the collateral line, and so of all the other 
 degrees. 
 
 5. And if no degree be found where the right may 
 rest, or even if any be found, the lord of the fee may 
 seize his fee until he in whose person the mere right of 
 succession rests shall come and demand it, and in the 
 meantime the lord shall stand in the place of the heir. 
 
 6. How the degrees are placed in consanguinity, 
 appears by the above figure, whereof the half might 
 
 1 It will be observed, that the writer admits succession by 
 lineal ascendants, contrary to the generally received opinion, 
 and without authority from the writers whom he generally fol- 
 lows. See before, p. 164, note, pp. 319, 320 ; and compare p. 312 ; 
 Glanvill, 1. vii. c. 1 ; Bracton, f. 626. Coke, who frequently in 
 Jus margin cites Britton upon this very subject, does not appear 
 to have understood him as contradicting the received doctrine ; 
 ' I never read,' he says, ' any opinion in any booke, old or new, 
 against this maxime,' (that an inheritance lineally descends, but 
 does not ascend,) ' but only in Lib. Rub., where it is said, Si 
 quis sine liberis decesseret, pater aut mater ejus in haereditatem 
 succedat, vel pater et soror, si pater et mater desint ' (Coke 
 Litt. 11 a.) The authority cited by Coke as Liber Ruber is the 
 Collection of Anglo-Saxon Laws known as Leges Henrici I. 
 . Ixx. 20.
 
 588 BRITTON. [II, *274 &. 
 
 suffice, and then it would resemble a banner ; but it is 
 displayed on the one side to show the issue of male an- 
 cestors, and on the other to show the issue of female 
 ancestors. 
 
 CHAPTER IY. 
 
 Of the proceedings in a Plea of Right before the Court 
 Baron and County Court, and of its removal into the 
 Royal Court. 
 
 1. "Writs of right patent ought to be brought in the 
 courts of the lords of whom the plaintiffs claim to hold ; 
 and therefore if they are brought or purchased in any 
 other courts than those of the chief lords the fees, such 
 chief lords shall have their courts out of our court, as soon 
 as they make demand thereof, and can prove the fees to 
 be theirs; *and the writs and proceedings shall fall to 
 the ground, and the plaintiffs shall remain in our mercy. 
 
 2. The plaintiff, having purchased his writ, ought to 
 carry, and show it to him to whom the mandate is 
 directed ; and he forth with, without demanding pledges 
 to prosecute, is bound to appoint him a day atliis first 
 court, which ought to be within three weeks, upon the 
 same fee ; and the writ should be produced and read 
 in full court, and entered on the roll, and the tenant 
 summoned by award of the court. 
 
 3. If the plaintiff be longer delayed, and can prove 
 the same, as hereafter mentioned, by plaint and proof, 
 he may by reason of such wrong, and because his lord
 
 [I, *275.] THE COURT BARON. 589 
 
 has failed to do him right, waive the court of his lord, 
 and plead in the county court, whether the lord has the 
 franchise of return of writs or not. And thus in some 
 cases the plaint may be removed out of a court, and 
 afterwards brought back into it again. And before 
 proof made of default the plaint shall not be considered 
 as in the county, but after that, and not before, a Pone 
 will lie to remove it before our Justices. 
 
 4. There are many ways besides in which a cause is 
 removable into the county court, as, where the lord 
 refuses to intermeddle therein, or because he has no 
 court, or because he has released his court by his letters 
 patent ; also for want of authority in the lord and his 
 court, as where the tenant vouches a warrant out of 
 his jurisdiction, *and whom he cannot compel to appear, 
 or if the tenant cause himself to be essoined de malo 
 lecti elsewhere than in the jurisdiction of his lord, or 
 because he has not authority to send the four knights 
 to judge of the sickness for which he is essoined, or if 
 the tenant put himself upon the great assise, and for 
 many other reasons. Sometimes also the plea is remov- 
 able by the tenant, as where he does not hold anything 
 of him to whom the writ is directed. 
 
 5. As to summonses and defaults and essoins in the 
 courts of freemen, the practice ought to be according to 
 the custom of the country ; but in the demanding of view, 
 vouching to warranty, counting by descents and resorts, 
 defending, excepting, and joining in battle, let the 
 same order of pleading be observed in the court of a 
 freeman as is awarded in our court.
 
 590 BRITTON. [II, *275 b. 
 
 6. The manner of proving the lord's court false, 
 where the lord himself or the bailiff to whom the man- 
 date was directed, has failed to do justice, is as follows. 
 In the first place, the plaintiff should complain to the 
 sheriff, and produce the writ in full county court, and 
 then, by award of the suitors, and without any security 
 to prosecute being found, the bailiff of the hundred or 
 some other shall be commanded that in the presence 
 of the neighbours he go and take the oath of the plain- 
 tiff and two others, in the court of the lord, if he has a 
 court, or at his mansion, "*or if he has neither court nor 
 mansion, then upon the land itself, that the lord has 
 failed to do him right ; for it is not sufficient to prove 
 that the court has failed to do right, but it must be 
 proved that he to whom the mandate is directed failed 
 to do right, the words in the writ being, ' And if thou 
 do it not, the sheriff shall do it.' 
 
 7. Therefore every plaintiff, before the plaint is re- 
 movable into the county, ought to complain of the 
 court to him to whom the writ is directed. And then 
 the lord, having heard the plaint, ought straightway to 
 see and examine the proceedings, and to hear the plain- 
 tiff in the presence of the suitors, in what point the 
 suitors have done him wrong; and if he finds an error, 
 he has authority to amend it, and to amerce the suitors. 
 And if he neglects to do so, then the complaint shall 
 be made to the sheriff. 
 
 8. When the bailiff has taken the oath of the plain- 
 tiff and his cojurors, he is straightway to cause the 
 tenant to be summoned by two freemen terre-tenants
 
 II, *276.] THE COURT BARON. 591 
 
 to appear at the next count}' court to answer to such a 
 plaintiff upon a demand made against him of so much 
 land with the appurtenances in such a vill, according 
 to the purport of the writ ; and he ought to enjoin the 
 summoners to be at such county court to prove the 
 summons, and also to appoint the plaintiff the same 
 day to prosecute his plaint. When the sheriff, or any 
 deputy of the sheriff in a county or franchise, fails to 
 do right to the plaintiff, if he farms his office, he is 
 punishable *by imprisonment and fine as a despiser of 
 our mandate ; and if he be sheriff in fee, he hath de- 
 served, if convicted, to lose the franchise, and to make 
 satisfaction to the plaintiff for his damages. 
 
 9. When the plaint is thus adjourned into the county, 
 if the lord of the fee comes into court and complains of 
 plaintiff, and offers to show and instruct the court that 
 the plaintiff has misinformed the sheriff and the county, 
 and that he himself never failed in doing right, what- 
 ever his court may have done, he shall be heard, pro- 
 vided he comes before any essoin is adjourned in the 
 county either for the plaintiff or for the tenant. But 
 if he waits till an essoin is entered, allowed, and ad- 
 journed, and the plea has been so long in the county, 
 that upon the arrival of the Pone the least spark of a 
 proceeding in the county court can be discerned, the 
 lord of the fee cannot afterwards insist upon his juris- 
 diction. 1 If the sheriff maliciously return that there 
 
 1 It may be seen from the above, that although the jurisdiction 
 of the lord was in theory maintained, the utmost facility was 
 afforded for evading it. And it was found that in practice most
 
 592 BRITTON. [II, *276 b. 
 
 is no plaint in the county court according to the tenor 
 of the Pone, yet the Pone shall not be lost, if by the 
 dates of the writ patent and of the Pone it may be pre- 
 sumed in favour of the plaintiff that the plaint may 
 have been in the county ; and afterwards the plea shall 
 take its course according to its nature. 
 
 10. At the day of the summons at the county court 
 the parties may be essoined, and to him who shall be 
 essoined another day shall be given by his essoiner at 
 the next county court. At which day the person who 
 before appeared may cause himself to be essoined, and 
 so after each appearance, though it happen a thousand 
 times, *except in special cases, as will appear in the 
 chapter of essoins de tnalo veniendi. If the plaintiff 
 makes default, and the tenant appears, let it be awarded 
 that the tenant go without day, and that the plaintiff 
 take nothing by his writ, but remain in our mercy, 
 that is, if the default before view ; but if default be 
 made after view, let it be awarded that the tenant re- 
 main in his seisin quit of the plaintiff and his heirs for 
 ever after, and the plaintiff be in mercy. And if both 
 make default, then one default ma} r be set against the 
 other, the tenant not having had judgment to depart 
 without day. 
 
 11. If the tenant makes default, and the summons is 
 
 lords were contented to waive their jurisdiction respecting the 
 title to land, for an important reason, which we learn from 
 Hengham, namely, that little or no profit accrued to the lord 
 from holding such pleas in his court. Hengham Magna, c. 3. 
 p. 11.
 
 II, *277.] THE COURT BARON. 593 
 
 witnessed by the summoners, it shall be awarded, when 
 the default is before appearance, that the land de- 
 manded be taken into our hand according to the terras 
 of the great Cape, or otherwise according to the usage 
 of the place. So likewise, where the tenant makes de- 
 fault at the first county court, if the bailiff with the 
 summoners attest the summons; and this summons the 
 tenant cannot defend by his law ; and thus the bailiff, 
 Avith the testimony of summoners, bears record of sum- 
 monses. And if the tenant makes default after default, 
 judgment shall be immediately given for the plaintiff, 
 saving to the tenant his right to recover when he thinks 
 good. *In like manner it shall be, if the tenant does 
 not within fifteen days replevy the land taken into our 
 hands, unless the case is affected by deceit. What is 
 here wanting upon the subject of defaults in general 
 shall be more particularly supplied hereafter. 1 
 
 12. When the parties have appeared in court, and the 
 plaintiff has counted his count against the tenant, and 
 the tenant has defended the wrong by proper words of 
 defence, then he may vouch to warranty, if he has any 
 one to vouch, and if the warrant does not live within 
 the distress of the sheriff of that county, then the 
 voucher must be aided by the following writ directed 
 
 1 The further explanation of the law of defaults here promised 
 is not found in the treatise as it now exists. The same observa- 
 tion applies to the description of trial by battle referred to in 
 s. 14. See the Editor's Introduction, p. xlv. The subject of 
 defaults is more fully treated in Bracton, f. 3646-380; Fleta, 
 p. 395-400. 
 38
 
 594 BKITTOK [II, *277 b. 
 
 to the sheriff of that county where the warrant has his 
 land. ' Command such an one that he warrant to such 
 an one so much land with the appurtenances in such a 
 vill ; and that, if he does not do it, he be at the first as- 
 sises when the Justices make their eyre in those parts 
 to show why he has not warranted.' 
 
 13. If the vouchee will thereupon enter into warranty 
 in the county, it is well ; if not, let the plaint stand over 
 to the eyre, if it be not first removed before our Justices. 
 For in such case the county court will have no author- 
 ity to proceed further in the action. And when the 
 plea of warranty is tried before our Justices in eyre, 
 then they may either determine the principal plea 
 themselves, or send it to be determined in the county. 
 *But if the plea be in the meantime removed before our 
 Justices, then the adjournment in eyre is annulled, and 
 the tenant shall vouch to warranty again in the plea of 
 Pone. Where the warrant is under the age of twenty- 
 one years, and comes into court to prove his age, the 
 principal plea and the plea of warranty also before the 
 Justices in eyre, are suspended until the warrant is of 
 age. 
 
 14. If the tenant defends himself by battle, the pro- 
 ceedings shall be as hereafter mentioned. If by the 
 great assise, then let a day be given at the next county 
 court, and let the tenant in the meantime obtain a letter 
 from the Chancery ; and by his own mouth he is required 
 to say that he is tenant, and by what words he has put 
 himself on the great assise ; * he shall then have a writ 
 
 1 The text of this sentence, either from corruption or other-
 
 II, *278.] THE COURT BAKON. 595 
 
 to the sheriff to cause the plea to cease until the evre, 
 which writ shall be enrolled by way of precaution, on 
 account of the attachment which follows, if the sheriff 
 refuses to cease thereupon. And when the tenant has 
 purchased this writ, then let the plaintiff sue out an- 
 other writ to the sheriff to cause the great assise to be 
 summoned against the coming of the Justices for the 
 hearing of all pleas. If the tenant has omitted to ob- 
 tain the prohibition aforesaid, then at the next county 
 court, or at the day given to the essoiner of the tenant, 
 the plaintiff shall recover seisin of his demand by the 
 default of the tenant. 
 
 15. Actions are removed out of the county court in 
 several ways ; sometimes at the instance of the plaintiff, 
 and this may be without assigning any cause ; *and 
 sometimes at the request of the tenant; but this ought 
 not to be done without affirmation of the cause in the 
 body of the writ of .Pone, which cause ought not to be 
 allowed before it has been tried in full county by the 
 oath of the tenant with two cojurors. 1 
 wise, is somewhat dislocated. I have restored it in the trans- 
 lation to what appears to have been the proper order. See Brae- 
 ton, f. 331 ; Fleta, p. 377. 
 
 1 The reason for making this difference between the plaintiff 
 and the tenant seems to have been, that while the latter might 
 desire to remove the cause for the purpose of delay, the former 
 could have no interest in so doing. (Hengham Magna, c. iv. 
 p. 14.) The cause assigned by the tenant might be a connexion 
 between the sheriff and the plaintiff, or the predominating in- 
 fluence of the latter in the county, or that the tenant was abroad, 
 or too infirm to attend the county court. (Bracton, f. 332 b ; 
 Hengham Magna, c. iv. p. 14.)
 
 596 BRITTON. [II, *278 b. 
 
 1C. If the cause be removed before our Justices at the 
 request of the tenant, and he makes default upon the 
 first day, and the plaintiff proffers himself and demands 
 judgment of the default, the plaintiff shall recover seisin 
 of his demand, and the tenant remain in mercy. And 
 if the cause is removed out of the county at the instance 
 of the plaintiff, and he makes default on the first day, 
 and the tenant is essoined, and his essoiner leaves the 
 court, having judgment to go without day, although the 
 plaintiff keeps by him the writ patent, if he brings a 
 fresh Pone to remove the plaint out of the county, this 
 new writ will be of no avail, but must be returned in 
 this manner, that no plaint is depending in the county 
 court according to the tenor of the writ, inasmuch as 
 by another like writ it was removed out of the county 
 before the Justices. And thus all the plea will have 
 to be begun afresh, but not by the same writ. 
 
 17. Sometimes the action is by necessity moved out 
 of the county court at the instance of the plaintiff, as, 
 Avhere the tenant is privileged, as the Templars, Hos- 
 pitallers, and others are, *\vho have this franchise by 
 royal charters, that they need not to answer any plea 
 elsewhere than before our Justices. If nevertheless 
 they have anywhere entered upon their answer, they 
 cannot afterwards change their minds or withdraw. 
 Sometimes also of necessity, when the county court has 
 no authority to proceed further in the plea, as where 
 bastardy is alleged, or marriage is denied, or in other 
 cases to the cognizance of which the jurisdiction of the 
 county does not extend. Sometimes also the plea is
 
 II, *279.] IN A PLEA OF EIGHT. 597 
 
 removed on account of the folly of the suitors of 
 the county, as where battle is awarded and joined 
 contrary to the common law and the common usages 
 of this realm. Sometimes also by reason of the 
 difficulty of judgment, and for many other causes. 
 The petty writ of right, which contains the clause, 
 'according to the custom of the manor,' and which 
 was provided in favour of sokemen, is never removable 
 before the Justices. 
 
 CHAPTEK V. 
 
 Of Summons in a Plea of Right. 
 
 1. The plaint being thus removed into the great court 
 at the instance of the plaintiff, the tenant must be 
 summoned to be there at a certain day to answer the 
 plaintiff according to the form of the plaint. There is 
 summons, after-summons, and resummons. And there 
 is also a precept which is not properly a ^summons, as 
 where we should command any one to come, or com- 
 mand the sheriff to cause him to come, or that he have 
 or attach such an one, or cause him to know that he 
 be on such a day in such a place. But of proper 
 summonses, some are general and some special. A 
 general summons is one which concerns an entire com- 
 munity, as the common summons in eyre, which is 
 solemnly proclaimed throughout cities, boroughs, and 
 markets, and in other like cases. Such summonses no 
 single person can deny or defend by his law. Special
 
 598 BRITTON. [II, *2T9 b. 
 
 summons is, for example, where summons is made upon 
 a certain plea to certain persons. And so possibly 
 one essoin might lie for both summonses ; as if any one 
 who is impleaded has his day of plea on the first day 
 of the eyre, and he causes himself to be essoined, the 
 essoin will excuse his absence as well for the general 
 as the special summons. 
 
 2. All persons ought not to be summoned. For an 
 infant under age is not capable of receiving any sum- 
 mons except through his guardian; nor a person 
 detained in prison, although he may cause a summons 
 to be made without guardian ; nor a madman, nor one 
 otherwise deprived of sense, as an idiot ; nor deaf and 
 dumb persons ; nor married women without their 
 husbands ; nor a canon removable without the dean 
 *and chapter, nor other persons in religion removable 
 without the abbot or their prior. 1 
 
 3. When any one then is to be lawfully summoned, 
 wherever he be found in the count}' where the demand 
 is made, he may be reasonably summoned in his proper 
 person by two freemen terre-tenants of the county. 
 For no one is obliged to receive a summons out of the 
 
 1 The word ' removable* ' appears to be applied to the officers 
 of a religious house holding office during the pleasure of their 
 superior. See 1. i. c. 29. s. 6, and note there, vol. i. p. 159. The 
 parallel passage in Bracton points to the existence in some cases 
 of an irremovable officer charged with the duty of representing 
 the religious foundation in court. ' Item viri religiosi ' [sum- 
 moned debent] ' per procuratores sindicos et actores perpetuos 
 et non amotibiles, et qui tales sint. quod possint lucrari et per- 
 dere et rem in judicium deducere.' Bracton. f. 336 b.
 
 II, *280.] IN A PLEA OF RIGHT. 599 
 
 precinct of the county, unless from the mouth of a 
 Justice himself. And if he is not found, then it is 
 sufficient to make the summons at his house, so that he 
 may be informed thereof when he returns. And if 
 the tenant has several houses, let it be made at that 
 which is upon the land demanded, if he be resident 
 there, or has any family there who can inform him of 
 the summons. And if no land is demanded, let it be 
 made at that house where he chiefly resides ; and if he 
 has no house in the county, then it is sufficient to make 
 the summons in the fee where he is distrainable, with 
 ii great number of neighbours for witnesses. 
 
 4. When any person is to be reasonably summoned, 
 he ought to have fifteen days at least to prepare his 
 defence. If less time is given, and the person sum moned 
 chooses to challenge the summons, it is of no force ; but 
 the sumrnoners ought to be in mercy, if they are con- 
 victed of their unreasonable summons. Yet there are 
 some causes which are so favoured, that reasonable 
 summons is not required in them, as in causes touching 
 ourselves or our kindred, ambassadors from foreign 
 countries, merchants, and crusaders. So likewise in 
 our eyres, or in the eyre of *our Justices, and in dis- 
 seisins, intrusions, abatements, and fresh force. Never- 
 theless if any one after such unreasonable summons 
 causes himself to be essoined, or appears without 
 challenging the summons, or if he accepts a day of 
 grace, he cannot afterwards challenge the summons as 
 unreasonable. When the tenant has thus been rea- 
 sonably summoned, he may not from that time absent
 
 600 BRITTON. [II, *280 5. 
 
 himself out of the realm or elsewhere, though he after- 
 wards procure our letters of protection; but the 
 plaintiff shall recover his demand, unless the plea be 
 defended by the tenant or his attorney. 
 
 5. In every summons it is proper to have the warrant 
 or transcript sealed with his known seal, 1 so that the 
 tenant may know before what judge he is summoned, 
 and may be able to arm himself with exceptions 
 against the action of the plaintiff ; otherwise such 
 summons shall be unreasonable and of no effect, and 
 the tenant, upon challenging the summons, must be 
 summoned again either bv the Justice in court or 
 
 o / 
 
 else by summoners. It is said, before what judge, 
 because one is not obliged to appear before every one 
 who pretends to be a judge ; for no one can have 
 authority to cause any to be summoned except from us ; 
 and though he should have authority from some Justice, 
 that is of no value, because a Justice, cannot make 
 another * Justice, nor authorize any person to bear rec- 
 ord or pass judgment without warrant from us. And 
 it is a general rule of law that no one shall be affected 
 by a judgment pronounced by one Avho is not truly his 
 judge. When any one therefore has had a reasonable 
 summons to appear before a person who has power 
 
 1 The written warrant for summons is not mentioned in Brae- 
 ton ; and in Fleta, although the warrant is mentioned, there is 
 no notice of its bearing any seal. The seal required would appear 
 to be the seal of the sheriff of the county where the appearance 
 was to be, whether in the county court or before the Justice* 
 Itinerant.
 
 II, *2SO J.] IN A PLEA OF RIGHT. 601 
 
 and authority of judging from us, it is his duty to 
 appear accordingly. 
 
 6. And because it may happen that the blame ought 
 to fall upon the sheriff, it is proper to know who is in 
 fault, whether the sheriff or the summoners ; and if it 
 be found that the sheriff did not direct any one to 
 make the summons, let him be punished for his neglect, 
 unless he has a reasonable excuse, as that the plaintiff 
 did not find any security to prosecute his plaint, or 
 that the writ came so late that he could not execute 
 it, or that he received the writ out of his count} T , and 
 before it came to him he was obliged by such a precept 
 to go elsewhere into some distant place ; and by many 
 other reasons the sheriff may reasonably excuse him- 
 self. And if the day contained in the writ is passed, 
 then the plaintiff must purchase a new writ. So like- 
 wise where the summoners did not execute the sum- 
 mons, although they were enjoined to do so. This fact 
 the summoners may defend by their law, although the 
 sheriff brings suit to prove it. 1 
 
 1 This is probably net to be understood of the case where the 
 summons was publicly ordered in the county court ; in which 
 case, according to Glanvill, Bracton, and Fleta, the suitors bore 
 record, which could not be contradicted by the summoners. 
 Possibly the practice of ordering summons in the county court, 
 which in the time of Glanvill was the regular course, had now 
 become unusual. See Glanvill, li. 1. c. 30 ; Bracton, f. 336 ; 
 Fleta, p. 380.
 
 602 BRITTON, [II, *281. 
 
 ^CHAPTER V 
 
 Of Essoins. 
 
 1. No person ought to depart unpunished after he 
 has been reasonably summoned, and does not think fit 
 to appear in court, unless upon some reasonable excuse, 
 whence essoins arise, as the service of God, or of our- 
 selves, accusation of crime, sickness, force. Service of 
 God, such as pilgrimage, which ought to be an im- 
 portant excuse, and favoured according to the nature 
 of it, provided that no summons arrived before the 
 journey. Our service, as where a man is in our forces 
 for the defence of us, our people, or our realm. Ac- 
 cousation of crime, for if any person be indicted or ap- 
 pealed of life and limb, he is never obliged to answer 
 in a matter involving loss of land or of chattels, until 
 he has defended himself in the more weighty matter. 
 Sickness, as in the case of those who put themselves 
 in motion towards the court, and are seized with sick- 
 ness by the way. Force, as in the case of those who 
 are hindered by imprisonment, or by robbers or other 
 enemies on the road, or the breaking of bridges or 
 other passages, storms, or want of boats or ships. 
 
 2. If any one therefore desires to excuse his absence, 
 let him presently send some excuser, who may relate 
 in court the impediment as it has occurred. And if
 
 II, *281 J, 282.] OF ESSOINS. 603 
 
 the latter does not cause the *excuse to be entered on 
 the same day as 'is specified in the writ, or as was be- 
 fore given to the party in court, the excuse will not 
 afterwards be allowed. Such excuses are called es- 
 soins, and the excusers essoiners. 
 
 3. However the essoin is enrolled, the purport ought 
 to be as follows : ' John, the essoiner of Peter, came 
 the first day, and showed, that whereas Peter his mas- 
 ter was summoned to be in this court on this day to 
 answer to Robert of a plea of land, the same Peter, 
 before any summons was made to him, had set out 
 from his house on a pilgrimage in the service of the 
 Heavenly King towards parts beyond sea to that holy 
 sepulchre at Jerusalem, in a general passage with other 
 crusaders,' if there was a general passage at that time, 
 or else, 'on an ordinary'' passage;' or, 'before any 
 summons was made upon him, he went upon the king's 
 service, in pursuance of a precept in that behalf as upon 
 a service due for his land.' In the above form he may 
 cause himself to be essoined of the service of the 
 Heavenly or Earthly King. Or thus : ' such a sick- 
 ness overtook him in journeying towards this court, 
 that he could not come forward to gain or lose, but 
 had himself carried back to his own home or elsewhere.' 
 Or, ' such other hindrance came upon him by the way, 
 that he could not proceed to gain or lose ; ' and thus 
 he excuses himself by way of essoin de malo veniendi ; 
 and therefore the essoiner ought to tender averment. 
 
 *4. But because the proof of the essoin is the business 
 of his master and not of the essoiner, and because it is
 
 604 BRITTON. [IT, *282 b. 
 
 not yet ascertained whether he is a true or a false mes- 
 senger, or whether his master will acknowledge him or 
 not, it is customary for theessoiners of rich and power- 
 ful persons, as earls, barons, and all others holding by 
 barony, to find pledges to produce their lords at the 
 day appointed, so that such essoiners may not escape 
 unpunished, if they are not Avarranted in their message. 
 But inasmuch as this would be oppressive if it were 
 done with the essoiners of poor people, it is permitted, 
 out of favour to such persons, that the essoiners of all 
 other sorts of people do promise only, without more, 
 to produce their warrants at the day appointed. 
 
 CHAPTER VII. 
 Of the Essoin de ultra mare. 
 
 1. Essoins are briefly divided into essoins de malo 
 veniendi and essoins de malo lecti. But the first divi- 
 sion is again divided into those de ultra mare and 
 those de citra mare. And of those de ultra mare, some 
 are beyond the Grecian sea, and some simply beyond 
 sea, as at Rome or at Saint James. *And of those be- 
 yond the Grecian sea, some are in a simple pilgrimage 
 to the sepulchre of Jerusalem, others to the same place 
 in a general pilgrimage. 
 
 2. In essoins de citra mare the impediment some- 
 times arises from sickness, and sometimes from other 
 hindrances. And of those from sickness, some arise 
 from sickness overtaking the party on the road, and 
 some from disease, which is called malum \lecti, and
 
 II, *283.j DE ULTRA MARE. 605 
 
 some from an illness coming on in the town where the 
 court is held. Of other impediments, some arise 
 from the senses, as in cases of idiots, persons deaf and 
 dumb, and others who are not of sufficient capacity to 
 receive a summons ; some arise from hindrances of im- 
 prisonment, or of roads ; some from the service of the 
 earthly king ; and from accusation of felony. 
 
 3. In the essoin beyond the Grecian sea in a general 
 pilgrimage, it must be observed whether there has 
 been within the year a general passage of any Chris- 
 tian king, or other person sent by the Pope with a 
 great host of Christians ; for then this essoin is 
 allowable, and the plea will stand over without day, 
 out of favour for the pilgrims of God, on account of 
 the privilege of those who have taken the cross, until 
 the return or death of the pilgrim. There are some 
 however who obtain our letters patent of protection to 
 be in force for one, two, or three years, and who never- 
 theless by virtue of our letters patent do also make 
 general- attorneys ; and such persons do well and 
 wisely. *For no great lord or knight of our realm 
 ought to travel forth of it without our licence, since 
 by that means the kingdom might be left destitute of 
 able persons; and such letters ought to be presently 
 shown in full county or hundred court, or at public 
 places. And if there has not been any general passage 
 to the Holy Land within the year, then let this essoin 
 be turned into the essoin beyond the Grecian sea to 
 the Holy Land in simple pilgrimage. This essoin is 
 the first of all the essoins ; for if it be cast after any
 
 606 BRITTON. [II, *283 b. 
 
 of the others, it will, from its nature, never be al- 
 lowed. 
 
 4. In the essoin beyond the Grecian sea in simple 
 pilgrimage the term of a year and a day is to be granted. 
 And if the essoiner sees that he cannot be warranted 
 at the end of the year, then again the essoin de ultra 
 mare simply shall take place, which signifies a common 
 pilgrimage to Rome or Saint James ; and such essoin 
 shall be allowed, and the adjournment shall be for the 
 period of forty days, and one flood, and one ebb of the 
 sea. And if the essoiner perceives that his master 
 does not come to warrant him, then again the essoin 
 de malo veniendi shall lie, in which a term of fifteen 
 days at least ought to be given. *And if he is still pre- 
 vented from appearing by sickness, then a distinction 
 must be made, whether he lies sick on his road, or in 
 the town where the court is held, for if on the road, 1 this 
 gives rise to an essoin de malo lecti and this essoin 
 must be made by two messengers or friends, and not by 
 essoiners, as shall be hereafter mentioned. If he lies 
 in the town where the Court is, then the essoin de malo 
 miles takes place, as shall be noticed in its turn. And if 
 the essoinee does not then appear to warrant the es- 
 soiner, then and not before the land is to be taken into 
 our hand by way of distress, unless we have received 
 his possessions under our protection by our letters pa- 
 tent, which suspend all pleas but four. 1 
 
 I should prefer to read a sa masoun, ' at home,' here and in 
 the line above ; but I find no authority for it. 
 2 Five kinds of actions are mentioned in Fleta as not being
 
 II, *284.] DE ULTRA MARE. 607 
 
 5. The manner of entering essoins is as follows : 
 * John, who is gone over in a general passage of pil- 
 grims to the Holy Land, against Peter, of a plea of 
 land, by such an one.' And if in a simple pilgrimage, 
 then thus : 'John, who is gone in a pilgrimage to the 
 Holy Land, against Peter, of a plea of land, by such 
 an one.' And if in a more ordinary pilgrimage, then 
 thus : ' John, who is gone across the sea in a pilgrim- 
 age, against Peter, of a plea of land, by such an one,' 
 whether it be the sea of France, Ireland, or Scotland, 
 which he has crossed. If it be an essoin de malo 
 veniendi, whatever the hindrance be, whether *sick- 
 ness, imprisonment, hindrance of passage, or other, 
 then thus : ' John against Peter, of a plea of land, by 
 such an one.' 
 
 6. If several holding in common by one title are es- 
 soined, then let the essoin be entered according as they 
 please, either thus, ' John against Peter and ' the others 
 named in the writ, or against each person severally. 
 Nevertheless they may be all essoined by oneessoiner. 
 And if part cause themselves to be essoined and part 
 not, then it will be necessary to mention the names of 
 those who are essoined, and take no notice of the 
 others who are not essoined, as thus : ' John and the 
 
 stayed by letters of protection, namely, the assises of novel dis- 
 seisin, mortdancester, and last presentation, and the actions of 
 quare impedit and dower unde nihil habet. (Fleta, p. 383. 2). 
 A note in MS. Z mentions the same actions, omitting the assise of 
 mortdancester, and adding plaints commenced before Justices. 
 in eyre.
 
 608 BRITTON. [II, *284 3. 
 
 others named in the writ against Peter, or against P. 
 M. and R.' But it is otherwise with the essoins 
 of several persons holding by different rights al- 
 though they hold or demand in common. For in such 
 cases the entry must be thus : 'John against Peter, 
 Thomas, and Simon, of such a plea, by such an one ; ' 
 or thus : ' Peter against John, Thomas against John,' 
 and so severally of all the rest ; and in that case every 
 tenant who causes himself to be essoined must have a 
 separate essoiner. 
 
 CHAPTER VIII. 
 
 Of the Essoin founded on the King's Service. 
 
 The essoin de servitio regis may be received at any 
 period in those cases where it is allowable ; for it is in 
 some cases allowable, and in some not. It is never to 
 be allowed in any of the four petty assises, nor in a 
 plea of dower where a widow complains that she has 
 nothing of her dower, nor in attaints, *nor in certifica- 
 tions, nor in any plea where the plaintiff is under age. 
 Neither does it lie for any person who does not serve us 
 in chief, although he performs his service to some one 
 belonging to us ; nor is it to be allowed to those who 
 do service to us, unless they are with us by our com- 
 mand in order to perform the service to which they are 
 bound by reason of some tenement. To such persons 
 our Chancellor ought to grant a writ to warrant their 
 essoiners, and excuse their absence, so long as they
 
 II, *285.] DE JVIALO VENIENDI. 609 
 
 continue with us in such services ; and if any writ be 
 otherwise granted, we will that such writs be impeached 
 and held bad. 
 
 CHAPTER IX. 
 
 Of ike Essoin de Malo veniendi. 
 
 Neither the essoin de malo veniendi nor any other 
 essoin lies for any person under age, because an infant 
 cannot warrant any essoiner. For warranty of essoin 
 is nothing else but swearing upon the evangelists that 
 the cause of his absence was true, according as he was 
 essoined at the former day. Neither does it lie in an 
 accusation of felony ; nor in the person of disseisors or 
 redisseisors ; nor for those impleaded of hamsoken, or 
 of fresh force, or of abatement ; nor in pleas de vetito 
 namio in the person of the defendants ; *nor for such as 
 are let by bail to be answered for by others, body for 
 body ; nor in the persons of those whom the sheriff is 
 commanded to cause to come, or to cause to know that 
 they be there if they will ; nor of those who have made 
 attorneys in court, unless the attorneys be also essoined ; 
 nor for one attorney, where two have been made in one 
 plea with several powers, unless both be essoined ; 
 neither does the essoin lie where the adverse parties are 
 dead, or have not pursued their writs or plaints, or 
 where the writ does not agree with the essoin ; T nor 
 
 1 This appears to be mistaken rendering of the words of Brae- 
 ton, ubi breve non convenit petition]. The meaning in Bracton 
 39
 
 610 BRITTON. [II, *2S5 &. 
 
 in those cases where the sheriff is commanded to distrain 
 by land and chattels ; nor where the parties are ad- 
 journed from one day to the next ; nor where they 
 have agreed to come without essoin ; nor after day of 
 grace given by consent ; nor where the plea is suspended 
 for default of jurors, except for the defendant, and 
 that only once , nor where the party essoined, or his 
 attorney, hath been seen in court in the meantime be- 
 fore the adjournment of the essoin, and the Justices 
 have taken notice thereof ; neither does an essoin ever 
 lie immediately after default, unless by consent. 
 
 *CHAPTER X. 
 
 Of Attorneys. 
 
 1. Attorneys cannot be made by every one ; for an 
 infant under age, a deaf and dumb person, an idiot, a 
 man simply mad or otherwise without discretion, a 
 person accused of felony, or any one who is forbidden 
 by us to do so, or a leper expelled from society, cannot 
 make an attorney. 
 
 2. Of attorneys, some are general and some special. 
 General attorneys are made in two ways, that is to 
 say, either by our letters patent, or by appointment of 
 parties before Justices in eyre. Those attorneys who 
 are made by our letters patent have sometimes more 
 
 seems to be, that when the whole proceeding is void, as where 
 the plaintiff has not obtained a writ suitable to his plaint, the 
 essoin is null. See Bracton, f. 341 ; Fleta, p. 384 ( 4), 385 ( 6).
 
 II, *286.] OF ATTORNEYS. 611 
 
 authority than other general attorneys, because they 
 have sometimes the power granted them to attorn others 
 in their place. All general attorneys may levy fines 
 and make chirographs, and final accords in all pleas as 
 fully as those whose attorneys they are. This cannot 
 be done by special attorneys ; for as soon as parties are 
 at accord in any sort of plea, that proceeding is at an 
 end ; and if any question is to be made upon the accord, 
 thereupon begins another sort of plea, and of another 
 nature. And though one be made attorney in the 
 existing proceeding, he is not thereby made attorney 
 in the future proceeding, unless he be made general at- 
 torney in all pleas commenced and to be commenced. 
 
 *3. No one can admit persons as attorneys by our 
 letters patent, except us and our Chancellor. Neither 
 ought other general attorneys to be admitted save be- 
 fore our Justices in eyres and in full court. Special 
 attorneys cannot be admitted except by us or our 
 Chancellor, or other person whom we may especially 
 assign by our writ in that behalf, or the Judges in full 
 court, whoever they be, sheriffs, or freemen, before 
 whom the party is bound to plead by our writ. Where 
 the proceeding is commenced without our writ, a 
 court of suitors cannot bear record of attorney ; and 
 therefore no attorney can be admitted in such a court 
 without our writ, except where the proceeding is 
 commenced by writ. The four knights, who are sent 
 to the sick persons in essoins de malo leoti and de tnalo 
 villce, can also admit attorneys. If any person offers 
 himself as attorney for us, or for any other, in any of the
 
 612 BRITTOK [II, *286 5. 
 
 aforesaid cases, and being challenged by the adverse 
 party, is not admitted as attorney, such person may be 
 committed to prison. And when any one has been thus 
 made attorney, he cannot retire pending the proceeding 
 without the consent of his client. 
 
 4. When two or more are made attorneys dis- 
 junctively, whether they be made general or special 
 attorneys, *although each has the power of his master, 
 yet the essoin of one attorney will be invalid, unless 
 all the attorneys be essoined, on account of the fraud 
 which might be practised by the attorney who is not 
 essoined, after the adverse party has had a day given 
 him as against the essoiner of the other attorney, and 
 has thereupon left the court. So, when any one has 
 made an attorney, and has then appeared in court and 
 pleaded, and had another day given him in his own 
 person, it is not sufficient at the next day that he alone 
 should be essoined, because there is an attorney ; nor 
 that the attorney alone should be essoined, because it 
 Avas not the attorney that had day given him. It is 
 therefore safer for both to be essoined. 
 
 5. When any has made a special attorney against a 
 certain person tenant, and the tenant vouches to war- 
 ranty, the attorney does not keep his place as against 
 the warrant, but the plaintiff should make a new attor- 
 ney in the plea of warranty, or else he will lose his writ, 
 if the warrant take the objection, as will be said of hus- 
 band and wife plaintiffs, in the chapter upon warranties, 1 
 
 1 This is another reference to a future chapter either never 
 supplied or lost. The same chapter is referred to before, li. iii.
 
 II, *287.j OF ATTORNEYS. 613 
 
 and the attorney would in such a case be liable to be com- 
 mitted to prison. So likewise in all cases where any 
 one offers himself for attorney, who was so made be- 
 fore any proceeding existed for which he was made at- 
 torney, as where the attorney was appointed before the 
 *writ was delivered to the sheriff, or before any sum- 
 mons was made. For before summons, or something 
 equivalent to it, the proceeding is not begun. So, where 
 the sheriff merely informs a person that he is to appear 
 in court on such a day, if he think proper to do so, if 
 any one offers himself as the attorney of such person 
 before he has appeared in court, the attorney is liable 
 to challenge. So also is he who offers himself as 
 attorney of one not named in the writ or the principal 
 plaint, before the party whose attorney he represents 
 himself to be has appeared in court ; as where people 
 have purchased tenements after the writs have been 
 sued out against their feoffors, and have friends in 
 court, who put themselves forward as attorneys of 
 the tenants, to make a defence against the right of 
 plaintiffs, in such case the attorneys are liable to 
 challenge, whether they have warrant or no ; for be- 
 fore such tenants have appeared in court in their own 
 persons, they will not be allowed an attorney. And in 
 our court, however the practice may be in the law 
 Christian, such attorneys are challengeable as offer 
 themselves to make their law for their masters, or to 
 swear upon their souls. So also in all cases where any 
 
 c. 11. s. 2. The point intended to be mentioned may be found in 
 Bracton, f. 381 ; Fleta, p. 408 ( 9).
 
 614 BRITTOK [II, *287. 
 
 one offers himself as attorney in the plea of Pone, 
 having been appointed before the Pone was sued out. 
 6. If any attorney dies pending the plea, a distinction 
 is to be nmde, whether he whose attorney he was is 
 gone across the sea or not. For if he be not in England, 
 or not in Ireland, supposing the plea to be there, 
 the action may be suspended without day until his 
 return. 1 
 
 1 It is plain from the above abrupt conclusion, as well as from 
 the references, occurring in several parts of the work, to future 
 passages and chapters which are not found in the existing 
 treatise, that Britton in its present form is incomplete. See be- 
 fore, vol. i. p. 108 ; vol. ii. pp. 411, 414, 612. The few additional 
 lines, which are found in two manuscripts of no great authority, 
 do not appear to me to be a part of the original work, which, if 
 continued, would probably have consisted of several more 
 chapters following the arrangement of the latter part of Bracton 
 and Fleta. See the Editor's Introduction, p. xlv.
 
 INDEX. 
 
 References are to top, or running pages. 
 
 PAGE 
 
 ABATEMENT and intrusion 333 
 
 Abatement of writ 254 
 
 by death of party 172, 227, 264, 419, 444 
 
 by marriage of female plaintiff 264 
 
 Abjuration of the realm 13, 54, 55 
 
 Accessories, in felony, appeal of 9, 10, 99 
 
 in homicide, prosecution of 29 
 
 in treason, appeal of 90 
 
 in trespass 109 
 
 Accessorium sequitur principale 120, 261, 471, 483 
 
 Accidental death 12, 33 
 
 Accidental loss, disseisor liable for 286 
 
 Accord, plea of 108, 236, 273 
 
 termination of action by 409 
 
 Accretion of land by deposit of river 179 
 
 Accruer, title by 180, 191, 193, 579 
 
 Acquittance, clause of 210, 211 
 
 Aetio aUenari nonpotest 480 
 
 Admeasurement of dower ; see Dower. 
 
 of pasture 305-308 
 
 Adultery, forfeiture of dower by 554 
 
 Advocate, or patron, of a church 471 
 
 Advowson, actions relating to 467-495 
 
 appendant 483 
 
 cannot be conveyed without land 218 
 
 how valued 390 
 
 615
 
 616 INDEX. 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Advowson not generally assigned in dower 281. 530, 554 
 
 of abbey, prebend, &c 474 
 
 Ael, writ of 462 
 
 Afforcement of jury 280, 514 
 
 Aids pur fere fitz chivaler and pur file marier 120 
 
 Alienation by felons, voidable 46 
 
 restricted by deed 194, 209 
 
 Allegiance, obligation of 368 
 
 Alms, tenure in 181, 344 
 
 Amendment of record 5 
 
 of false judgment 7 
 
 Amercemen t, power of 151 
 
 how levied 159 
 
 in eyre 112 
 
 of absent jurors 459 
 
 of losing party in action ... 460 
 
 Ancient demesne 58, 182, 202, 258, 344, 345, 394, 446 
 
 tenant in, not a freeholder 233 
 
 Appeal of felony 9, 28, 81, 105 
 
 enrolment of 14 
 
 form of 83, 97 
 
 jurisdiction in 3, 48, 91 , 92, 96 
 
 trial by battle in 84, 89 
 
 Appeal from court baron to lord . 590 
 
 Approvers 13, 24 
 
 Appurtenances 208, 219, 287-295 
 
 Arraignment 21 
 
 Arson 35 
 
 Assigns, effect of gift without mention of 183, 191, 201, 437 
 
 first inserted in feoff ments in favor of bastards. . . . 252 
 
 Assise, Justices of. ... 4 
 
 Assise of common 299-305 
 
 of darreign presentment 201, 467-491 
 
 of mortdancester, 376-460. See Mortdancester. 
 of novel disseisin, 222-286. See Novel disseisin.
 
 INDEX. 617 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Assise of nusance 316-328 
 
 of Utrum 496 
 
 turned into jury 268-281, 457 
 
 Astrer, or astrier 312, 456, note. 
 
 Attachment 105 
 
 suits pleadable by 174 
 
 Attaint 350, 409, 501-517 
 
 before judgment 504 
 
 of jurors on inquest of age 350 
 
 where it lies 507 
 
 Attaints and certifications, by what Justices taken 504 
 
 Attorney, authority of 247, 610-614 
 
 death of 614 
 
 general and special , 247, 610 
 
 general, how constituted 605, 610 
 
 none in capital cases 84 
 
 special, how made ; 610, 612 
 
 Attornment, by tenant to alienee 188, 220, 570 
 
 of homage 371, 373 
 
 Avoidance of benefice, entire or partial 474 
 
 Bailiff, his authority as attorney 247 
 
 Bailiffs, exactions of 76 
 
 Banns of marriage 547 
 
 Baronies, not to be dismembered 182 
 
 chief castles of, not divisible between coheirs. . . . 393 
 
 not assigned in dower 522 
 
 Bastard, donee to him and his heirs cannot alien 182, 569 
 
 Bastardy, exception of 264, 436, 452 
 
 how proved 436, 452 
 
 tried by jury by consent 436, 452 
 
 Battle, trial by, in appeal 83, 88, 100 
 
 in writ of right 594, 596 
 
 not favoured 104, 422 
 
 between lord and tenant . 370-
 
 CIS INDEX. 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Beast, man killed by 12 
 
 Beau pleader, fines for 66 
 
 Bees, law of 177 
 
 Bench, the king's court so called 78, 113 
 
 Justices of the 17, 111, 392 
 
 Besael, writ of 462 
 
 Bishop, prohibited from admitting clerk pending plea of ad- 
 
 vowson 495 
 
 Bishop's certificate, authority of 475 
 
 Bishops, cannot alien the rights of their church 182 
 
 Blood, corruption of 31 
 
 Boroughs, farm of 182 
 
 privileges of 165, 172 
 
 Borrowing, contract of 129 
 
 Boundaries, settlement of 258 
 
 Bridges and roads neglected 65 
 
 Building on another's land ; rights of landowner and 
 
 builder 178, 234 
 
 Burgage, tenure in 344 
 
 Burglary 35 
 
 Burning, punishment by 35 
 
 Canon, incapacity of 598 
 
 Cape, process by 593 
 
 Castellans, illegal prises by 77 
 
 Certificate of ordinary 475. 547 
 
 Certification 281, 504, 505, 506 
 
 Challenge of jurors 25, 245, 277, 278. 
 
 Champerty 78 
 
 Champion, fraudulent voucher of 99 
 
 Charge of jury 280, 459, 501 
 
 Charters . . .206-212 
 
 date of 211 
 
 loss of, pleaded 122 
 
 proved by witnesses therein named 21 1, 481 , 509
 
 INDEX. 619 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Cheats and impostors 51 
 
 Cheminage. , 63 
 
 Chester, Justices of 6 
 
 Chevage, or headmoney of villains 166 
 
 ' Chief lord,' meaning of the term 450, note 
 
 Church, jurisdiction of 24 
 
 Church lands, aliened with consent of bishop and patron. ... 498 
 
 recovery of 496-501 
 
 Cities and boroughs, privilege of, in enfranchisement of 
 
 villains 165, 172 
 
 Clergy, privilege of 22 
 
 Clerk, process against in trespass 109 
 
 Clerk of the market 3, 155 
 
 Clerks of chancery and other courts, exactions of ... 78 
 
 Clerks, purgation of 23 
 
 Cloth, assise of 79 
 
 Collateral descent 585 
 
 Collusive judgment no bar to dower 558 
 
 Common, defined 296 
 
 assise of 299--305 
 
 encroachments on 275 
 
 disseisin of 299 
 
 gift of 299 
 
 limitation of right of '. 296 
 
 right of, asserted in replevin 126 
 
 severance of 298 
 
 seisin of 308 
 
 surcharge of 305, 308 
 
 waiver of 297 
 
 Common Pleas, Justices of, 4. See Bench. 
 
 Common property, degrees of community in 175 
 
 Common right, disturbance of 238 
 
 Common soil 266 
 
 Concealment of felony, amercement of grand jury for 25 
 
 Condition and consideration distinguished 197
 
 620 INDEX. 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Condition, donor's remedy on breach of 272 
 
 ejectment for non-performance of ... 236 
 
 fulfilment of, a question for jury 270 
 
 various kinds of 195 
 
 casual 197 
 
 copulative and disjunctive 198 
 
 double 198 
 
 enlarging an estate 199, 200, 435, 437 
 
 negative , 195, 198 
 
 possible and impossible 130, 197 
 
 unlawful 131 
 
 restrictive of estate 199 
 
 Conditional contract 130 
 
 Conditional judgment in favour of younger brother 237 
 
 in plea of dower 539 
 
 Confirmation, charter of 21 1 
 
 effect of 210, 480 
 
 Consanguinity, tables of 464, 585 
 
 Consecrated objects and places 176 
 
 Conspiracy to defeat justice 79 
 
 Contempt of court 469, 610 
 
 Contribution among parceners 401 , 406 
 
 Convents, abuse of hospitality of 77 
 
 incapable of purchasing land without licence,. . . . 186 
 
 Conveyance by feoffment 181, 206, 207 
 
 by fine 188, 220 
 
 by recovery 186 
 
 of reversions and seigniories 188, 220 
 
 Coparcener, eldest, has no prerogative to present to a 
 
 church 468 
 
 Coparceners, not heirs to each other, 392, 580. See Parceners. 
 
 Coroner 4, 6-14, 391 
 
 election of 6 
 
 has record of the pleas of the Crown 6, 112 
 
 has record of appeals of felony !t2, 94
 
 INDEX. 621 
 
 References are to top, or running pages. 
 
 PAGK 
 
 Coroner inquest of 6 
 
 judgment before 31 
 
 oath of 6 
 
 of the king's household 3 
 
 Coroner's rolls delivered to Justice in eyre 19 
 
 Corporeal and incorporeal property 175 
 
 Corrody, disseisin of 228, 244 
 
 Corrupt verdict, allegation of 27 
 
 Cosinage, action of 382-384, 462 
 
 Counterfeiting, appeal of 28 
 
 Counterfeiting the royal seal or coin . . 20 
 
 County court, jurisdiction of, in trespass and debt 128 
 
 in writ of right 591 
 
 Court baron 588 
 
 false judgment of, remedied in the king's court . 123 
 
 practice in 123, 589 
 
 record of 123 
 
 Court Christian 437, 452 
 
 jurisdiction of 556 
 
 reference to 475 
 
 usurpations of 75 
 
 Courts, inferior and private, abuses of 76 
 
 Covenant, how proved 509 
 
 Crusade (See Pilgrimage) 605 
 
 Curtesy of England, estate by 180, 212, 285, 273, 349, 445 
 
 Customary dower 196, 204, 237 
 
 Customs, local 2, 58, 394 
 
 contrary to common law 71 
 
 Customs levied on merchandize 80 
 
 Cut-purses 51, 52 
 
 Damage fesant, avowiy of distress 4 117, 125 
 
 Damages, in Novel Disseisin 286 
 
 in Mortdancester 459 
 
 in action of Dower 528, 529
 
 622 INDEX. 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Darreign presentment, assise of '. 467-491 
 
 Date of instrument should be expressed 130 
 
 Day, divisions of 438 
 
 De libertate probanda, writ 167 
 
 De nativo habendo, writ 16(5 
 
 De odio et atia, writ 102 
 
 De rationabili parte, action so called 387. 398-401, 405 
 
 Deaf and dumb, incapacity of 131, 598 
 
 Death in prison 38 
 
 judgment of, in inferior court 14 
 
 natural and civil 474 
 
 of attorney stays suit 614 
 
 of tenant, abates writ 227 
 
 Debt 128 
 
 process in actions of 110 
 
 Deeds, enrollment of 211 
 
 execution of 211 
 
 how proved 481 , 508 
 
 witnesses to, 211 481, 50 
 
 Defence, time for 21, 599 
 
 Deforce, meaning of word 477 
 
 Delivery of possession, necessary in transfer of corporeal prop- 
 erty 180 
 
 not necessary in transfer of incorporeal property. 186 
 See Livery of Seisin. 
 
 Demesne, meaning of word 431 
 
 Deodand 12, 13,33 
 
 Deputies of Judges 6. 600 
 
 Deraignment 562 
 
 Descent, canons of 383, 394, 577, 584, 587 
 
 collateral 585 
 
 customary 394 
 
 mode of pleading 452, 585 
 
 See Inheritance. 
 Devise of land by will 446
 
 INDEX. 623 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Difficulty of judgment 253, 273, 281, 597 
 
 Disavowal of lord, a cause of forfeiture 121, 228, 363, 368 
 
 Disclaimer 248, 253 
 
 Disclaimer of tenure, a cause of forfeiture 121, 228, 363, 368 
 
 process for recovery of tenement upon, 
 228, 368, 369 
 
 Dismemberment of baronies and knights' fees 59, 182 
 
 Disseisin, what 174, 222 
 
 by force and arms 283 
 
 distinguished from trespass 275 
 
 inquest of damage in 253, 283, 285 
 
 of common 299 
 
 peaceable, with white wand 284 
 
 remedies for 238, 241 
 
 various instances of 224-226 
 
 Distress, by judgment in the lord's court 123 
 
 disturbance of, an act of disseisin 223, 228, 236 
 
 excessive or illegal, 66 74, 127, 276 
 
 for aid pur faire fitz chivaler or pur file marier 120 
 
 for service in arrear 119 
 
 sheriff to aid in 265 
 
 Disuser of fanchise 66, 157 
 
 Divorce, dower defeated by 520 
 
 fact of, certified by ordinary 542 
 
 suit for 541 
 
 Doubt, benefit of 27 
 
 Dowager, to be provided with a house 531 
 
 when entitled to present to a church 484 
 
 Dowager's court, jurisdiction of 532 
 
 Dower, admeasurement of 438, 563 
 
 at the church door 518, 529, 543, 544 
 
 by assent of father 548 
 
 by custom 521, 529, 561 
 
 customary, forfeited by second marriage 561 
 
 disseisin of .. . 236
 
 624: INDEX. 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Dower, establishment and assignment of 522 
 
 extinguished by felony of husband 32 
 
 favoured in law 535 
 
 forfeited by adultery 554 
 
 how to be assigned. . '. 527, 530 
 
 not increased to the prejudice of heir 526 
 
 not subject to the debts of husband 533 
 
 lost by judgment against heir 561 
 
 of money or chattels 523 
 
 plea of, governed by plea relating to the inheritance. 557 
 
 reasonable 521 
 
 seisin of 267 
 
 subject to crown debts of husband 532 
 
 unde nihil Itabet 533 
 
 warrant of 557, 562 
 
 what tenements subject to, 238, 521, 524, 525, 530, 
 
 551, 559, 591 
 
 Drowning, death by 12 
 
 Duel between lord and tenant, homage first to be released. 370 
 Duress, contracts invalidated by 40, 183 
 
 Earldoms, chief castles or heads of, not divisible between 
 
 coheirs 393 
 
 Ecclesiastical courts, abuses of 68 
 
 Ejus est interpretari wijus est dare 207 
 
 Endowment atfhe church door 205, 218, 269, 518 
 
 English language, used in legal proceedings. 19 note 
 
 Englishery, presentment of 13, 32 
 
 Entry, action of 185, 202, 227, 427, 565, 573. 
 
 action of, defended either as a possessory or as a pro- 
 prietary action 571 
 
 ad terminum qui prceteriit 565 
 
 recovery by 202, 234, note 238, 297 
 
 defective, transmitted by disseisor to true owner 567 
 
 in the per 566
 
 INDEX. 625 
 
 References are to top, or running pages. 
 
 PACK 
 
 Entry, in the per and cui 566 
 
 in the post 560 
 
 several forms of writ of 566, 567, 568 
 
 time allowed for 239 
 
 Equity of redemption of mortgage, not allowed 434 
 
 Escheat 31, 59, 61, 201, 500, 587 
 
 writ of, 192, 201, 202, 577 
 
 Escheators of the king, lands taken by 71 
 
 Esplees, evidence of seisin 214, 440 
 
 taking of, when pleaded 440, 461 
 
 Essoin 16, 403, 602 
 
 de citra mare 604 
 
 de malo lecti 604, 606 
 
 de malo veniendi 603, 606 
 
 de malo villce 606 
 
 de servitio Regis 602, 603, 608 
 
 de servitio Regis ceterni 602, 603 
 
 de ultra mare 604, 606 
 
 enrolment of 601, 607 
 
 in action of Naif ty 167 
 
 in assise of Mortdancester 364 
 
 none allowed to disseisor 167 
 
 none in capital cases 84 
 
 of jointenants 607 
 
 time allowed in 240, 605, 606 
 
 when and where entered Yl 602 
 
 Essoiners 603 
 
 when required to find pledges 604 
 
 Estovers 314 
 
 remedy for disturbance of 314 
 
 Estrays 57, 177 
 
 Ex Contraetu, obligation 129 
 
 Ex delicto, obligation 129 
 
 Exceptions in action of Dower 538, 560 
 
 in action of Entry 573 
 
 40
 
 626 INDEX. 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Exceptions in assise of common 302, 305 
 
 in assise of last presentation 470, 480 
 
 in assise of Mortdancester 424, 456 
 
 in assise of Novel Disseisin 253, 267 
 
 in assise of nusance 323, 328 
 
 in assise of Utrum 498, 500 
 
 in abatement of writ 254 
 
 to the Judge 253 
 
 to the person 264 
 
 Exceptions peremptory and dilatory 253 
 
 Excessive distress 66, 74, 127, 276 
 
 Exchequer, Court of 4, 80, 111 
 
 Excommunication, exception of 260 
 
 Execution, disturbance of 67 
 
 Execution for felony, various forms of 551 
 
 Exigent 10, 29 
 
 Exile of villains 565 
 
 Extenta manerii 388 
 
 Eyre of Justices. 
 
 proceedings in 15, 112 
 
 chapters of 20 
 
 conclusion of Ill 
 
 opening of 16 
 
 False imprisonment 40 
 
 appeal for , 103 
 
 False judgment, writ of 266 
 
 Falsification of writs 28, 254 
 
 Farm of the county and hundreds 58, 73 
 
 Farms 329, 331 
 
 Fealty, ceremony of 41, 152, 366, 367 
 
 Fee, various meanings of word 435 
 
 Fee farm 343 
 
 Felo dese 33 
 
 Felons, gifts by 182
 
 INDEX. 627 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Felons, trial of 20, 28 
 
 Felony, indictment of, an excuse for not answering in 
 
 a civil action 602 
 
 plea of 450, 499, 551 
 
 forfeiture of land by 30, 33, 46, 90 
 
 of chattels by 30, 33, 38 
 
 Feme covert ; see Wife. 
 
 Feoffment 181 
 
 Ferce naturae, animals 176, 177 
 
 Finding, title by 176 
 
 Fine, avoidance of 4M 
 
 conveyance of seigniory by 188, 220 
 
 enforced against tenant by writ of judgment 372 
 
 infant bound to answer to 481 
 
 operation of, in barring reversions 454 note 
 
 Fishery 227 
 
 common of 326 
 
 Force and arms 288 
 
 Forceable disseisins, punished 283 
 
 entry, effect of upon the title 255, 273, 561, 567 
 
 Forestallers. . . 69 
 
 Forfeiture of chattels of felons 30, 33, 38 
 
 by denial of lord's title 121, 228, 363, 368 
 
 of felons' goods 30, 90 
 
 of felons' lands 30, 83, 46, 90 
 
 of outlaws 10, 44, 45 
 
 Form of gift, to be observed 193 
 
 Formedon, writ of 427 
 
 Fortification of houses without license 64 
 
 Found property, right to 57 
 
 ' Four men ' of vill 15 
 
 Franchise, claim of 15, 16, 62 
 
 Frankalmoigne 343, 496 
 
 Frank-marriage 520 
 
 Free farm, tenure in 343
 
 628 INDEX. 
 
 References are to top, or running pages. 
 
 PAGK 
 
 Freedom favoured by law 165 
 
 Freehold, what 223, 225, 250, 431 note. 
 
 how acquired 250 
 
 by wrong 251 
 
 Fresh force 174 
 
 Fugitive villain may recover against his lord by assise, 
 
 note 164, 204 
 
 pursuit of 166 
 
 Gaol delivery 39 
 
 Justices of 5 
 
 Gaols, defects of 72 
 
 Gift 181 
 
 of land, common form of 207 
 
 Grand jury 17 
 
 Grand Serjeanty 336, 341 
 
 Great assise, where allowed 60, 594 
 
 no attaint upon verdict of 512 
 
 Guardians, rights of 338, 350, 351 
 
 Guest, host responsible for 42 
 
 Half blood, inheritance by 580, 583 
 
 Hamsoken 70, 148 
 
 Heirs, cannot be purchasers 193 
 
 near and remote 576 
 
 of donor, when bound to warranty 183 
 
 of full age may hold possession against the lords 335 
 
 ' Heirs,' word not necessary in grant of a fee 435 
 
 Heresy 35, 247 
 
 Heriot 376 
 
 Hoghenhine 42 
 
 Homage 353, 373 
 
 action against lord for refusing 360, 362 
 
 ancestral 355 
 
 ceremony of 364, 365
 
 INDEX. 620 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Homage, for what tenements due. . . 356, 357, 370 
 
 inheritance barred by 582 
 
 not reserved in a gift of land 208, 366 
 
 obligation of 367 
 
 of pensioner or servant 365, 371 
 
 remedy against tenant refusing 362 
 
 released before battle between lord and tenant . . . 370 
 
 Homicide, prosecution of 29 
 
 appeal of 91 
 
 Hospitallers 102, 596 
 
 Hotchpot 396 
 
 Household, king's, coroner of 3 
 
 Steward of, see Steward. 
 
 Hue and cry 42, 147 
 
 Hundred, amercement of 32 
 
 held in private hands 58 
 
 Hundred court 6, 18 
 
 Hundreders 4 
 
 Hunger, an excuse for theft 35 
 
 Husband, disseisin of, by wife 228, 241, 244 
 
 gift by, to wife and another 192 
 
 Husband and wife, gifts between, void 186, 192 
 
 their power over wife's land 183 
 
 See Wife. 
 
 Idiot, incapacity of 183, 186, 456, 598 
 
 Idiot a nativitate, in custody of the king 349 
 
 Incapacity of party to suit 260, 456 
 
 Incorporeal tenements, disseisin of 287 
 
 Incumbrance of church by bishop 475 
 
 Indentures 207 
 
 Indicavit. writ of 557 
 
 Infency of husband or wife, a bar to dower 553 
 
 of party to action 404, 405, 448, 456, 481, 598 
 
 See Infant.
 
 630 INDEX. 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Infangthef 48, 62, 182, 187 
 
 Infant, cannot disclaim 118, 294 
 
 capable of doing homage 358 
 
 incapacity of 135, 183, 186, 218 
 
 liability of, as vouchee 410, 420 
 
 must answer to writ of Entry founded on disseisin, 
 
 404, 448 
 
 must answer to fine 481 
 
 See Infancy. 
 
 Inheritance, by ascendants 380, 386, 583 
 
 questions of, tried by writ of right 224, 576 
 
 rules of 383, 384, 394, 577, 588 
 
 Inheritance. See Descent. 
 
 Inlawry 44, 46 
 
 Inquest, Coroner's 6, 8 
 
 of age of heir, tenant in capite 349 
 
 Interdict 543 
 
 Interpretation of royal grants reserved to the king 327 
 
 Intrusion 333 
 
 Investiture, by lord of fee 377 
 
 Ireland, Justices of . . 6 
 
 Island, formation of, in river or sea 179 
 
 property in newly-discovered 178 
 
 Jointenancy 189 
 
 Jointenants, assise must be by all 230 
 
 Jointenement, disseisin of 230 
 
 Judge, exception to the 108, 253, 302, 600 
 
 Judgment, amendment of 5 
 
 in former suit, plea of 454 
 
 creditor, his estate, 435 445 
 
 without writ, void ... 265 
 
 Judicial authority not delegable 6, 600 
 
 must be derived from the Crown 600
 
 INDEX. 631 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Judicial franchise, usurpation of 62, 65 
 
 Judicium non sui judicis non obligat 600 
 
 Juises, or instruments of correction 148, 157, 158 
 
 -Jurisdiction, exception to 85, 99 
 
 of Coroner 6 
 
 of County Court 589 
 
 of Courts Baron 5, 588 
 
 of Justices in Eyre 3, 15, 133 
 
 of the King 2, 3 
 
 of the Royal Courts 2, 6 
 
 of the Steward of the Household 3, 140 
 
 of the Court of Exchequer 4 
 
 must be derived from the crown 600 
 
 usurpation of 157 
 
 Jurors 407, 409 
 
 amercement of absent 459 
 
 challenge of 25, 278, 459 
 
 disagreement of 26, 280 
 
 majority of, to prevail 26 
 
 oath of 26, 278, 489, 500 
 
 to inform themselves of facts before trial 403 
 
 Jury, charge of 26, 280, 460, 501 
 
 discharge of, without verdict 26, 270, 488, 491 
 
 consent of parties to try question by, how compel- 
 led 458, 509, 263 
 
 how compelled to give verdict 381 
 
 service upon, evidence of freedom 172 
 
 upon question of legitimacy by consent 186, 436 
 
 upon question of villenage 263, 508 
 
 Justices, authority of 8 
 
 itinerant, jurisdiction of 3, 14, 111 
 
 special, appointed by letters patent 242 
 
 Kindred, table of 584
 
 632 INDEX. 
 
 Referencee are to top, or running pages. 
 
 PAGE 
 
 King cannot alien the right of his crown 182 
 
 his grants, interpreted by himself 327 
 
 his jurisdiction 3 
 
 his legislative power 2 
 
 his right as guardian of tenant in capite 338, 349, 351 
 
 not bound by limitation of time 182 
 
 plea that he is interested in a suit 269, 455 
 
 when bound to warranty 420, 454 
 
 writ abated by his death 172 
 
 King's Bench, Justices of 3 
 
 highway 266- 
 
 officers, complaints of , 15, 71 
 
 Knight, degradation of 171 
 
 legal duties of, note 387, 504 
 
 punishment for striking 104 
 
 Knighthood, exactions for evading 72 
 
 villain enfranchised by 165, 171 
 
 Landmarks 67, 148, 231 
 
 Lapse, presentation by bishop upon 472 
 
 Larcency 47 
 
 appeal of 96 
 
 Last presentation, assise of 469-491 
 
 See Darreign presentment. 
 
 Lastage 63 
 
 Law, wager of 272, 40ft 
 
 Leases for years (See Termor) 272, 330, 432 note, 570 
 
 Leather and wool, customs on 80 
 
 Legislative power of King and Council 1 
 
 Legitimacy, tried by court Christian 43ft 
 
 tried by jury by consent 264, 436 
 
 presumption of 347 
 
 Lepers, incapacity of 183, 186, 260. 
 
 Lessee for years ; see Termor. 
 
 Lestage : 6tfr
 
 INDEX. 633 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Limitation of actions 61, 171, 462, 497 
 
 Lispendens 448, 455 
 
 Livery of seisin 214, 218, 230 
 
 by rod or glove 215 
 
 by attorney 218 
 
 See Delivery of possession. 
 
 Locality, statement of, in writ 257 
 
 London, custom of 561 
 
 Lord, his right of entry after death of tenant, 223, 237, 376, 
 
 378, 587. 
 
 Lords of liberties, their oath in the Eyre 17 
 
 Lunatic, incapacity of 131, 183, 186, 456, 569, 598 
 
 Mainpast 10, 149 
 
 Maintenance 74, 78 
 
 Market, clerk of the king's. ... 3, 155 
 
 disturbance of 326, 328 
 
 inquest of 156 
 
 not to be held within ten miles of Eyre 18 
 
 overt, purchase in 50 
 
 Marriage 518 
 
 at church door 541 
 
 estate given in, subject to hotchpot 396 
 
 favoured by law 1 64 
 
 gift in, made without charter 209 
 
 not to be forced 353 
 
 of heir minor, right of lord to 351, 353, 405 
 
 rights of the king as lord 61 
 
 right of, is a chattel devisable by testament 338 
 
 secret, may legitimate the issue, but not give 
 
 right to dower 519, 542 
 
 to be tendered to wards under age 352 
 
 validity of, determined by Court Christian, 274, 
 
 436, 523, 542. 547 
 Marshal, Earl, his office 3, 141
 
 634 INDEX. 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Master, action by, for damage to servant 109 
 
 Mayhem, appeal of 103 
 
 Measures and weights 68, 487 
 
 Meat, stale or diseased 69, 158 
 
 Melior est conditio possidentis 230, 231, 241 
 
 Menace, writ of 9, 10 
 
 Merchet 161, 203 
 
 Mesne profits 285 
 
 Mesne, writ of 121, 210 
 
 Mill-race 318 
 
 Ministers of the king, delinquencies of 71 
 
 Minor ; see Infant. 
 
 Misdescription 442 
 
 Misjoinder of plaintiffs 256 
 
 Misnomer 256, 450 
 
 Mixed action , 385-392 
 
 Money, forgery of 28 
 
 Monks, incapacity of 131, 182, 184, 186, 569, 598 
 
 Monster 349 
 
 Mortdancester, assise of 379, 385 
 
 brought by heir against his lord 379 
 
 cannot be brought by one parcener without 
 
 the others 384 
 
 lies only between strangers in blood. . . .381, 383 
 
 pleadings in 424-455 
 
 process in ... 402-408 
 
 trial of 408, 458 
 
 within what degrees permitted 380. 381 
 
 Mortgage, construction of condition in 200, 432-435 
 
 Mortmain 68, 186 
 
 Murage 63 
 
 Murder 32 
 
 Mute, penance for standing 22 
 
 Naara. . .114
 
 INDEX. 635 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Naifty 159 
 
 action of 167, 168 
 
 trial in, by suit 169, 170 
 
 Ne admittas, writ of 495 
 
 JVecessitas vincit legem 522 
 
 Nemo potest simul esse hceres et dominus 362, 583 
 
 Nonjoinder, exception of 256, 264, 267, 384, 444 
 
 of parcener in writ 256, 444 
 
 Non-tenure, plea of 448, 449 
 
 Novel disseisin, assise of 222 
 
 judgment in 282 
 
 parties to 226, 242 
 
 pleadings in 253-267, 302 
 
 process in 242, 245 
 
 taken in absence of tenant 301 
 
 trial of 278-281 
 
 where allowed 233, 238 
 
 Nudum pactum . 129 
 
 Xullum tempus occurrit regi 182 
 
 Nusance 290, 316-328 
 
 legal remedies against, by assise 317, 319, 320-323 
 
 legal remedies at the sheriff's tourn 319 
 
 legal remedies, by Justieie.s 320, 323 
 
 pleadings in assise of 323-328 
 
 treate.d as a disseisin 227 
 
 view in cases of ... 245 
 
 Oath, manner of taking 279 
 
 nature of 500 
 
 Obligation, nature of 129 
 
 Occupancy, title by 170 
 
 Office in fee, disseisin of 228, 24r> 
 
 Ordination, villain enfranchised by 165, 171 
 
 Outfangthef 62, 187 
 
 Outlawry . . 41
 
 636 INDEX. 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Outlawry after death . . 45 
 
 fraudulent 45 
 
 of women, called waiver 43 
 
 plea of 451 
 
 process of 10 
 
 Parcener, disseisin of one by another 232, 300, 398 
 
 Parceners, assise between 300, 444 
 
 contribution among 406 
 
 do homage and fealty to eldest parcener. .351, 357, 367 
 
 must sue together 140, 256, 299, 384, 444 
 
 See Coparceners. 
 
 Parish, manor, and hamlet 268 
 
 Parson, cannot alien without bishop and patron 569 
 
 his remedy to recover common 294 
 
 his remedy to recover land 496 
 
 Parsons, two of one church 497 
 
 Parties, abatement for want of '324, 454 
 
 Partition of estate between parceners 385-397 
 
 Pasture defined 296 
 
 admeasurement of 305 
 
 common of 296 
 
 Patent of Justices 249, 408 
 
 Paternity, presumption of 346 
 
 Pauper's suit without pledges 243 
 
 Peine forte et dure 21, 85 
 
 Penalty, contract under 131 
 
 Penance 21 , 85, 95 
 
 Pendente lite, alienation 448 
 
 Pending action, plea of 454 
 
 Pension reserved from a church to save right of infant 472 
 
 Perambulation for fixing of boundaries 258, 460 
 
 Perjury 502 
 
 degrees of 506 
 
 procuring of, criminal 502
 
 INDEX. 63T 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Person, exception to the 260 
 
 Personal actions 1 
 
 Petty larceny 48, 52, 100, 102 
 
 Petty serjeanty 341 
 
 Pilgrimage 602, 606 
 
 general 240, 604, 60(5 
 
 Pledges for appearance of defendant 108, 167, 246 
 
 of prosecution 105, 114, 167, 242, 379, 402 
 
 when required from essoiners 604 
 
 Pone, writ of 168, 589, 595 
 
 Pontage 63 
 
 Possessio fratris 580 
 
 Possession, gifts by persons out of 210 
 
 title by 251 
 
 See Seisin. 
 
 Pound, breach of 148 
 
 Pregnant women, execution of, delayed till delivery 101 
 
 Prescription, none against the right of the Crown 61 
 
 Presentation, last, assise of 467-91 
 
 See Dai-reign presentment. 
 
 Presentments in the eyre 19 
 
 Presentments of murder and homicide 42 
 
 Prisage of spices, silk, &c ... 80 
 
 Prison, breach of 36, 72 
 
 private 40, 67 
 
 felons to be detained in king's 67 
 
 Prisoners, actions by and against 39 
 
 contracts by 40 
 
 death of 76 
 
 escape of 37, 72 
 
 fees to be taken of 39 
 
 treatment of 37 
 
 Process in action of debt ... 110 
 
 in action of trespass 105, 107, 110, 132 
 
 in assise of novel disseisin . . 242, 245, 246
 
 (538 INDEX. 
 
 References are to top. or running pages. 
 
 PAGE 
 
 Process in assise of mortdancester 402, 405 
 
 in assise of darreign presentment 469 
 
 in county and hundred court 132 
 
 in court baron 123, 132, 589 
 
 in real actions 1 74 
 
 Production of deed by adverse party in action not compelled. 20T 
 
 Proof, various modes of 545 
 
 Proprietary action 575 
 
 Protection, letters of 605, 606 
 
 Prothonotary 279 
 
 Provers 101 
 
 to be sent to the king's prison 40. 67 
 
 Provost of vill 17 
 
 Proximity of blood, tried only by writ of right 223. 575 
 
 Prudehomme, what 307 
 
 Purchase 175, 1 76 
 
 by villain 203, 206 
 
 conditional 193-200 
 
 joint 189, 193 
 
 Purprestures 60 
 
 Purveyance 77 
 
 Quare impedit, action of 484, 487, 492 
 
 Quare non admisit, writ of 494 
 
 Quare non permittit, writ of 487, 493 not e 
 
 Quid juris clamat, writ of 188 not e 
 
 Quitclaim, charter of 188, 211, 453 
 
 requisites to validity of 210, 453 
 
 plea of 273, 453 
 
 Quo jure, writ of 309-314 
 
 Quo icarranto, writ of 04 
 
 Quod permittat, writ of 460 
 
 Rape 4(i 
 
 appeal of 96
 
 INDEX. 639 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Rape, inquest of, before coroner 14 
 
 Real actions 575 
 
 Reclaimer of jurisdiction by lord 531 
 
 Record, authority of 504, 506 
 
 courts of 113 
 
 of Justices 5, 504 
 
 of court baron 123 
 
 proof by, 83 451 
 
 Redisseisin 328 
 
 Redubbers of clothes G9, 147 
 
 Re-entry, remedy by 238 
 
 Release, how proved 373 
 
 Relief 374 
 
 distinguished from heriot 375 
 
 Remainder, in gift of land. . 209 
 
 4 Removable ' canon or monk, incapacity of 131, 598 
 
 Rent charge, grant of 220 
 
 Replevin, action of 113, 126 
 
 Representation, right of, in inheritance 578, 582 
 
 Resort 168, 465 
 
 Restitution of conjugal rights, suit for 546, 547 
 
 Resummons of defendant 406, 598 
 
 Reversion 201 
 
 Reversion barred by fine 453 
 
 conveyance of 189, 514 
 
 dower of 227, 521 
 
 Right of dower, writ of 562 
 
 patent, writ of 575 
 
 close, writ of 344, 446, 597 
 
 of marriage, writ of 338 
 
 of ward, writ of 337 
 
 Robbery 46. 98 
 
 Rod, livery of seisin by 215, 345 
 
 Rolls of Coroner 14, 19 
 
 of Justices 5, 504
 
 640 INDEX. 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Rolls of the clerk of the market 158 
 
 Royal charters, construction of 207 
 
 Royal demesnes, privilege of, in enfranchisement of villains, 
 
 165, 172 
 
 Sakeber 48, 150 
 
 Same descent, exception of, in assise of mortdancester 424 
 
 not allowed to be pleaded by vouchee 421 
 
 Sanctuary 13 
 
 Seal, forgery of 20 
 
 illegal use of 20 
 
 use of borrowed 211 
 
 Seals, use of 144, 308, 600 
 
 Seditious rumours 70 
 
 Seigniory, conveyance of 188, 220 
 
 Seisin, definition of 212 
 
 livery of 213 
 
 of heir 251 
 
 of pasture, how acquired 293 
 
 simple ; see Simple seisin. 
 
 Serjeant, false pleading by 84 
 
 Serjeanty, tenure by 336 note, 341 
 
 Servitudes or easements 287 
 
 seisin of 293 
 
 Severance of jointenancy 191 
 
 Sheriff 4, 72, 75 
 
 neglect of duty to parties to suit 591 , 601 
 
 oath of 16 
 
 Sheriff's court 113 
 
 tourn 146 
 
 redress of nusance at 291 
 
 Sic utere tuo ut alienum non loedas 289 
 
 ' Simple seisin,' lord entitled to, on deatli of tenant. 376 
 
 See Lord. 
 Slavery, origin of 159
 
 INDEX. 641 
 
 References are to top, or running pages. 
 
 PAGK 
 
 Socage, tenure in 336 note, 340, 341, 521 , 529 
 
 guardian in 339 
 
 Sokeman, tenant in ancient demesne 344 
 
 cannot alien his land 183, 202 
 
 immunities of 344 
 
 Sorcery 35,147 
 
 Statute de donis conditionalibus, alteration of law by, 
 
 194 note, 196 note, 
 quia emptores terranim, effect of, 194 note, 197 note, 
 
 208, 336 
 Statutes : 
 
 Magna Charta, c. 1 24 
 
 c. 2 374 
 
 c. 3 358, 360, 374 
 
 c. 3, 4, 5 350 
 
 e. 6. . . 352 
 
 c. 7 246, 353 
 
 c. 10 110 
 
 c. 11 4 
 
 c. 12 4, 505 
 
 c. 22 30 
 
 c. 25 153 
 
 c, 27 330 
 
 c. 35 146 
 
 c. 36 11, 185 
 
 c. 63 466 
 
 Statutum Hibernice de Cohceredibus (14 Hen. III.) 357 
 
 Statute of Merton (20 Hen. III.) 
 
 c. 1 2-17 
 
 c. 6, 7 3ri2 
 
 c.6 354 
 
 o. 7 353 
 
 of Marlborough (52 Hen. III.) 
 
 c. 6 199 
 
 c.8 328
 
 <142 INDEX. 
 
 References are to top, or running pages. 
 Statutes : 
 
 PAGE 
 
 c. 10 146, 151 
 
 c. 16 335, 376 
 
 c. 17 350 
 
 c. 18 7 
 
 c. 19 5 
 
 c. 22 7 
 
 c. 23 144, 339 
 
 c. 26 32 
 
 of Acton Burnell (2 Edw. I.) 138 
 
 of Westminster I. (3 Echv. I.) 
 
 c. 1 1, 22 
 
 c. 2 352 
 
 c. 4 14 
 
 c. 9, 10 11 
 
 c. 10 13 
 
 c. 10, 26 6 
 
 c. 12 21 
 
 c. 14 10 
 
 c. 15 150 
 
 c. 21 351 
 
 c. 22 337, 352 
 
 c. 24 286 
 
 c. 38 503 
 
 c. 42 610 
 
 c. 45 338 
 
 c. 49 549 
 
 c. 51 277 
 
 Officium Coronatoris (4 Edw. I.) 6, 8, 13, 14, 16 
 
 Statutnm de Bigamis (4 Edw. I.) 
 
 Preamble 1 
 
 c. 5 24 
 
 c. 6 , 183 
 
 Statute of Gloucester (6 Edw. I.) 
 
 e. 1.. . 15. 16. 286
 
 INDEX. 643 
 
 References are to top, or running pages. 
 Statutes : 
 
 PAGE 
 
 c. 4 196, 343 
 
 c. 5 350 
 
 c. 5, 7 565 
 
 c. 9 5 
 
 Statutum de Militibus (6 Edw. I.) 73 
 
 Statute of Mortmain (7 Edw. I.) 186, 234 
 
 of Wales (12 Edw. I.) 
 
 c.5 6 
 
 c. 12 536 
 
 Provisiones in Scaccario (12 Edw. I.) 4 
 
 Statutum de Moncta (12 Edw. I.) 21, 28 
 
 Statute of Westminster II. (13 Edw. I.) 28 
 
 c. 1 193, 209, 580 
 
 e. 4 .... 559 
 
 c. 7 564 
 
 c. 8 308 
 
 c. 10 610 
 
 c. 11 145, 339 
 
 c. 14 182 
 
 c. 16 353 
 
 c. 19 144 
 
 c. 21 343 
 
 c. 22, 25 315 
 
 c. 25 226, 227, 228, 314 
 
 c. 25, 26 286 
 
 c. 26 328 
 
 c. 27 610 
 
 c. 32 : 233 
 
 c. 34 228, 554 
 
 c. 35 338 
 
 of Merchants (13 Edw. I.) 329 
 
 of Winchester (13 Edw. I.), c. 2 32 
 
 Circumspecte agatis (13 Edw. I.) 24 
 
 Statute of Exeter (14 Edw. I.) 8. 19
 
 644 INDEX. 
 
 References are to top, or running pages. 
 Statutes : 
 
 PAGE 
 
 Statute of Westminster III. (18 Edw. I.), 
 
 c. 1 207, 209, 366 
 
 Modus levandi fines (18 Edw. I.) . . 188 
 
 Articuli super Chartas (28 Edw. I.) 
 
 c. 3 3 
 
 c. 10 27 
 
 Statutum de Prcerogativa Regis, c. 2 13, 18, 338 
 
 Assisa Panis 153, 154, 155 
 
 Statutum de Pistoribus, c. 2 154 
 
 de Sacramentis Ministrorum Regis 16, 17 
 
 Steward of the household, his jurisdiction 3, 141 
 
 Strangers, under the king's protection 105 
 
 Sturgeons and whales, king's right to 57 
 
 Subornation of jurors 27 
 
 Subtraction of homage, cause of forfeiture 369 
 
 Succession, title by 180, 252 
 
 Sufferance, common by 297 
 
 Suit, proof by 113, 545 
 
 of kindred, proof of villenage by 169, 170, 449, 509 
 
 Suitors judges, in what coui'ts 6, 113 
 
 Summons, various kinds of, 597 
 
 in assise of Mortdancester 402, 406 
 
 in writ of right 590, 597, 599 
 
 of jurors in Disseisin 243 
 
 Supposititious children 345. 348 
 
 Surname, double 259 
 
 Tail, estate 184, 194 note, 455 
 
 Tanners, not to be butchers 69 
 
 Templars 182. 596 
 
 Tenant for life, feoffment by 185 
 
 Tenants in chief, dismemberment of fees by 182 
 
 Tenure does not affect status 1 62 
 
 Tenures, various kinds of 336, 350
 
 INDEX. 645 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Term, for life and years 431 note, 569 
 
 Termor, assi.se against 422, 437 
 
 Termer feoff ment by 185 
 
 his remedy if ejected . 329, 431 note 
 
 nature of his estate. 570 
 
 his right suspended during minority of lessor's 
 
 heir 330, 339 
 
 ousted by dowager, how compensated 560 
 
 Thefbote 69, 148 
 
 Theft 47, 98 
 
 how punished upon fresh suit 47, 150 
 
 1 Time of peace,' how understood 471 
 
 Tithing 10,41,149 
 
 mode of admittance into , 152 
 
 Title to land 250 
 
 by possession 251 
 
 Title-deeds, detainer of by widow 555 
 
 Tourn ; see Sheriff's tourn. 
 
 Tournaments, injuries at 104 
 
 Traverse, impost so called 62 
 
 Treason 34 
 
 appeal of 82 
 
 how prosecuted 20 
 
 petty 34, 35 
 
 Treasure trove 14, 56 
 
 Trespass contra pacem, process in 107 
 
 expeditious process in special cases of 110 
 
 form of proceeding in 105 
 
 punishment in 104 
 
 Trial of appeal of felony 87, 95, 100 
 
 Trial of felons at the king's suit 29 
 
 of assise 279, 459 
 
 of attaint 574 
 
 of status of villenage 168, 263 
 
 Triplication 425, 428
 
 646 INDEX. 
 
 References are to top, or running pages. 
 
 PAGE. 
 
 Uncertainty 266, 267 
 
 Uncouth, guest so called 42 
 
 Usage, easement founded on 289 
 
 Usury 147 
 
 Utrum, assise of 496-501 
 
 the parson's writ of right 497 
 
 Vacations 277 
 
 Vee de naam , 4, 62, 114 
 
 Venire inspiciendo, proceedings in 345 
 
 Venire sa mere, infant in, may inherit 575 
 
 Verge royal 2, 3, 141, 155, 156 
 
 inquest of market within 156 
 
 jurisdiction of the Steward of the Household 
 
 within 141 
 
 Vicarage, vacant, merged in parsonage 474 
 
 Vicinage, common by 297 
 
 View, process of 242, 282, 403, 408, 442, 589 
 
 in assise of nusance 2i5 
 
 Villain, actions by and against 164 
 
 alienation of 163 
 
 assise by, against lord for his wife's tenement 229 
 
 belonging to several lords 205 
 
 by birth 162 
 
 by recognizance 160 
 
 cannot be devised 163 
 
 contracts by 131 
 
 conveyance by 205 
 
 enfranchisement of 164, 165, 171, 203 
 
 incapacity of 132 
 
 Villain, purchase by 203 
 
 Villains, their lives protected 160 
 
 no distinction among 162 
 
 Villenage 159-173 
 
 exception of 165, 260, 302, 401, 453, 508
 
 INDEX. 647 
 
 References are to top, or running pages. 
 
 PAOE 
 
 Villenage, proof of, by suit of kindred 169, 449, 509 
 
 tenure in 345 
 
 tried by assise by consent of parties 263, 508. 510 
 
 Volenti nonfit injuria 130 
 
 Voucher of claimant adverse to lord, a forfeiture 555 
 
 of warrant in Disseisin 285 
 
 in larceny 49. 97 
 
 in Mortdancester 410 
 
 in plea of dower 536 
 
 in writ of right 593 
 
 Wager of law, no attaint of proceedings in 24, 512 
 
 when admitted 125 
 
 Waifs 57, 148 
 
 Walrand, Robert de, penned the Statute of Marlborough, 
 
 c. 6 200 
 
 Wand, white, sign of peace 284 
 
 Wardship 336, 349-351 
 
 incident to what tenure 336 
 
 Warrant, voucher of ; see Voucher. 
 
 of dower 558 
 
 Warranty by homage 355-359 
 
 clause of, in charter of feoff ment 210 
 
 obligation of 184, 355, 413 
 
 of charter, writ of 121, 478 
 
 Warren, right of 62, 66 
 
 Waste by dowager, 565 
 
 by guardians 351, 410 
 
 entry by reversioner on account of 235 
 
 Watch, neglected 67, 148 
 
 Watercourse, disturbance of 317 
 
 Watering-place, common 318 
 
 Way, disturbance of 317 
 
 Way and water, rights appurtenant to 290 
 
 Weights and measures 68, 158
 
 648 INDEX. 
 
 References are to top, or running pages. 
 
 PAGE 
 
 Weirs, nusances in 67 
 
 White rod, sign of peace 284 
 
 Whitetawers 69 note, 163 
 
 Wife, co-defendant with husband 255, 455 
 
 incapacity of 183, 186, 272, 598 
 
 of felon, punishable as an accomplice 100 
 
 See, Husband. 
 Wines, assise of 80, 158 
 
 Withernam 115 
 
 
 Witnesses, proof by, in Court Christian 542 
 
 Wizards 51 
 
 Women, appeals by , 95 
 
 Wool, customs on 80 
 
 Wounding 14 
 
 appeal of 103 
 
 Wreck 14 : 57, 62, 148, 178 
 
 Writ de cetate probanda 350 
 
 de libertate probanda. ... 167 
 
 de magna assisa eligenda 595 
 
 de nativo habendo ; . . 166 
 
 de odio et atia 102 
 
 de pace habenda 594 
 
 de rationabili parte 439 
 
 de terris liberandis 350 
 
 de venire inspiciendo 345 
 
 effect of abandoning 236, 247 
 
 false or forged 28 
 
 judicial 265 
 
 jurisdiction limited by 5 
 
 oath administered without 7 
 
 of Ael 381, 462 
 
 of Assise of Common 290 
 
 of Cosinage 381 . 462 
 
 of customs and services 363 
 
 of Entry . 565-574
 
 INDEX. 649 
 
 References are to top, or running pages. 
 
 PAGK 
 
 Writ of Escheat 191, 201, 577 
 
 offormedon 427 
 
 of Indicavit 557 
 
 of Partition 387 
 
 of Pone 589, 591, 595 
 
 of Quare impedit 492 
 
 of Quare non admisit 495 
 
 of Quare non permittit 487, 493 
 
 of Quid juris clamat 188 note 
 
 of Quo Jure 289 
 
 of Quo warranto 64 
 
 of Quod permittat 460 
 
 of right close 344, 446, 597 
 
 of right, defended as a possessory action 572 
 
 of right of dower 502 
 
 of right of marriage 338 
 
 of right of ward 337 
 
 of right patent 588-601 
 
 of right patent in county court 588 
 
 of right patent in court baron 588 
 
 of waste 351 
 
 to compel warranty in plea of right 594 
 
 to compel warranty in prosecution for theft 50 
 
 oyer of 249 
 
 pending, plea of 236 
 
 Writs, distinction of, to be observed 126 
 
 Year, day, and waste 30, 60 
 
 Years, estate of lessee for 229-231 
 
 Younger brother, entry by 223 
 
 entitled to possession until appearance of 
 the right heir 237
 
 
 V.D-UW- 
 
 JUH
 
 A 000 704 820 o