Lavv, or, a discourse thereof in foure bookes. Written in French by Sir Henrie Finch Knight, his Maiesties Serieant at Law. And done into English by the same author.

CHAP. 26.

Of Originall Processe.

HItherto of the first matter of the suit, it followeth to speake of ori∣ginall Processe.

Originall processe is that pro∣cesse which is till the defendant do appeare.

Originall processe is single or 〈◊〉〈◊〉 Single, which is by the possessions 〈◊〉〈◊〉, (land or goods) or onely by the person.

That by the land is of two sorts. First sommons and grand cape in a praecipe q••••d reddat.

The Sommons is a warning of the te∣nant in his land, but not by his goods, 〈◊〉〈◊〉 by a rent seruice, rent charge, rent seeke, or a Common which hee hath, for there the land is anothers by certaine sommoners, two at the least. The Sommons vpon •••• action brought against one as heire, 〈◊〉〈◊〉 be in land that did descend, otherwise it is in any land.

If it bee to recouer the freehold of 〈◊〉〈◊〉 it must be in the same land, else ma∣king default, hee may at the grand cape wage his law of non sommons. But if he ap∣peare, it makes no matter in what land hee be sommoned. A grand cape is a pr〈…〉〈…〉 to take the land into the Kings hands by the view of lawfull men, called thereupon Veyors, as the other are Parnors, with a sommons of the Tenant to answer (a) as well to his default, as to the demaundants action, and therefore it is called a grand Cape. Therefore here the Tenant is suffered to saue his default as to say, that he was not sommoned according to the Law of the land, and thereof is ready to do his law; or that he was in prison, or disturbed by wa∣ter, &c.

And the King shall haue the land to his

••wne vse, the Sherife being accomptable of ••e issues therof from the default, til iudge∣••ent for the demandant.

Statutes.

31. Eliz. cap. 3. Vpon a Somon in a reall ••ction fourteene dayes before the returne, a ••roclamation of the Somons shall be on a ••onday immediatly after diuine seruice, at ••he doore of the Parish Church where the and lyeth, and returned with the names of ••he Sommoners. And till that done, no Grande cape shall goe out, but an alias & ••luries as the case requireth.

If the Tenant bee returned sommoned, where in deed hee was not, the writ shall abate.

Secondly, it is sommons & resommons, or another like sommons in a mortdaunce∣stor, Iuris vtrum, and an assise of darrein pre∣sentment.

By the goods, as in assises of nouel dis∣seisin and nusance, where the originall pro∣cesse is a Pone per vadios & saluos plegios. A Pone per vadios & saluos plegios is a pro∣cesse to attach the defendant by certaine of his (a) proper goods not borrowed, or in pledge vnto him, beeing meere personall chattels, neither a (b) chattell reall, as a ward, &c. nor (c) parcell of his freehold as a clod of earth, &c. which hee shall (d) for∣feit if he appeare not. (e) And the Sherife may take those goods with him, or leaue them with the partie at his pleasure. But

whethersoeuer hee doe, the propertie is no•• out of the partie till he make default.

The originall processe by the person is •• Capias (which is processe to imprison him) then an exigent or solemne (a) demaund •••• fiue seuerall Countie Courts immed〈…〉〈…〉 following one another. Therefore (b) no Al∣locato comitatu lyeth if a Countie be holde•• after an exigent returned, and for not app••••∣ring, iudgement, to be out of the protection of the King and his Lawes, which wee call outlawry. The (c) iudgement whereof i•• to bee giuen by the Coroner in the f〈…〉〈…〉 Countie. For (d) at the Common Law there is no outlawrie, but where the writ is vi & armis, as in trespasse, conspiracie, felony, &c. And the reason why it lyeth there, is, be∣cause they are acts founded vpon the sole tort of the defendant. And this is in m〈…〉〈…〉 felonie and treason.

Statutes.

1. H. 5. cap. 5. In euery originall writ of actions personals, appeales, & enditements, in which the Exigent shall bee awarded: to the names of the defendants in such writs, originall appeales and enditements, additi∣ons shall be made of their estate and degree or mysterie, and the Townes, Hamlets and places, and the Counties wherof they were or be in which they were or be conuersant: Otherwise all outlawries thereupon pro∣nounced shall bee none. And before these

••utlawries pronounced, the said Writs and ••nditements shall be abated by the excep∣••ion of the partie omitting the said addi∣••ions.

6. H. 6. c••. 1. All Exigends and outlawries ••pon enditements in the K. Bench of felony ••nd treason shall bee void, if before the ••xigend awarded, a Capias be not directed to ••he Sherife of the Countie, whereof they be ••amed in the enditement, hauing six weeks space (or larger, by the discretion of the Iu∣stices) before the returne.

8. H. 6. cap. 10. In euery enditement or ap∣peale of treason, felonie, or trespasse after the first Capias returned; foorthwith (before an Exigend) another Capias shal be awarded to the Sherife of the Countie where the en∣ditement is supposed to abide returnable, before the same Iustices, &c. conteining the space of three monethes (where the Coun∣ties be holden from moneth to moneth) of foure moneths: (where they be holden from sixe weekes to sixe weekes) by which Ca∣pias the sherife shall be commanded to take his bodie if it be found in his Bailiwick, if it be not found, then to make proclamation (for his apparance) in two Counties before the returne of the writ. Any exigend or out∣lawrie otherwise pronounced shall be hol∣den for none.

10. H. 6. cap. 6. The like is to be obserued

when any such enditement or appeal〈…〉〈…〉¦ken before Iustices of peace, or other ••••¦uing power, shall bee remooued before t•••• King in his Bench, or elsewhere by C〈…〉〈…〉¦rari or otherwise.

6. H. 8 cap. 4. Vpon euery exigent a writ•••• make three proclamations (returnable 〈◊〉〈◊〉 of the returne of the exigent, and the p••••¦clamations to bee made, two in the full Countie Court, the third at the genera•••• Sessions) shall go out to the Sherife of eue¦rie other Countie (viz. than that where th•• action is brought) where the defendant i•• named to be, or late to haue beene; if the Kings writ runne there: otherwise to the Countie next adioyning to that where he i•• so named. Being named late of London •••• Middlesex, the writ of proclamation shall go out to euerie other Countie where he i•• abiding, time of the exigent awarded. Euery outlawrie to the contrarie shall be auoided by plea.

27. E. 3. cap. 2. A writ of Idemtpitate 〈…〉〈…〉∣nis giuen to those whose lands, goods, or chattels be seised by any officer, surmising them to be outlawed (where they be not) because they beare such names as those that be outlawed, for default of good declarati∣on of the surname.

9. H. 6. cap. 4. Such an Idemtpitate 〈◊〉〈◊〉 giuen to their Executors.

If the Exigent be returned not fully ser∣••ed without any folly in the Plaintife, as (a) where the defendant after demand at ••o Counties rendreth himselfe in Court, ••d vpon mainprise found hath a Superse∣••eas, and yet appeareth not at the day. But ••therwise it is vpon a (b) Supersedeas by a∣••other person bearing the same name, or in ••se where no (c) more Counties but foure ••n be holden betweene the deliuerie of the ••rit to the Sherife and the returne, for it is ••e Plaintifes owne follie in the first case to ••ut no difference betweene their names, ••d in the second to take so short a time. ••hough it bee in the (d) hustings of Lon∣••on which are holden vncertainly: the ••laintife bringing a new exigent which we ••ll an Exigent de nouo (e) before any other Countie holden, but else not, shall haue the ••enefit of the former Counties. And there∣••ore it is called an exigent allocato Comitatu, ••r allocato hustingo, if it be in London, where ••heir hustings are as the Countie Courts.

Outlawry dishableth him from suing a∣••y action.

Statutes.

5. E. 3. cap. 12. In case where the Plain∣••ife hath recouered damages, & he against whō the damages be recouered, is outlawed ••t the K. suit, no charter of pardon shall be granted, except the plaintife be satisfied for ••is damages. When one is outlawed by pro∣cesse

appearance no such charter shall 〈…〉〈…〉¦ted, except he yeeld himselfe before 〈…〉〈…〉¦stices from whom the exigend issued; •••• shall cause the partie to bee warned to ••••¦peare before them at a day. Where〈…〉〈…〉 the Plaintife appeare, they shall plead 〈…〉〈…〉 the first originall, as if no outlawrie •••• beene. If the Plaintife appeare not (and •••• warning be duely witnessed) he that 〈…〉〈…〉 lawed shall bee deliuered by vertue of •••• Charter.

31. Eliz. cap. 3. Vpon euery extent in a ••••¦sonall action a writ of proclamation 〈…〉〈…〉 go out of the same Court to the S〈…〉〈…〉 the Countie, where the defendant at t•••• time of the Exigent shall bee dwelli•••• Whereupon three proclamations shall •••• made; one in open Countie Court, anot•••• at the quarter Sessiōs, the third one m〈…〉〈…〉 at the least before the Quint' exact at •••• doore of the Parish Church where the ••••¦fendant shall be dwelling at the time of t•••• exigent, vpon a Sonday immediatly after ••••¦uine seruice. All outlawries otherwise sh•••• be void.

But before reuersing of any such outlaw∣rie in this respect, the defendant shall put i•• baile, not onely to answer the plaintife in •• new action, but to satisfie the condemna∣tion, if the Plaintife begin his suite within two Termes.

Prerogatiue.

By outlawrie all his chattels, whether ••eall as a (a) terme for yeares (and there∣••re there the King may seise the land it ••fe, and plow and sow, and occupie it as ••e term or might) wardship, &c. or per∣••nal, as ones (c) goods (the propertie wher∣•• is presently in the king, and he may haue •• detinue against euery man that hath a ••ossession of them) profits (d) of land, ••herein he hath a freehold or inheritance, ••iz. rents, corne, mannurance of his pasture ••et in this case he cannot, &c. seise the land ••selfe, nor occupie, plow, or sow it, or grant •• away. And if the party so outlawed make •• feoffement, this feoffement is good, and ••he King after that shall haue the profits ••o more.) But not (a) a fornace table fixed ••pon the land with posts, boords, doores, windowes, and such like annexed to a free∣••old are forfeit to the King, not only those in possession, but euen such as hee hath a right vnto, as debts, (viz (b) due by speci∣alty, but not (c) by a simple contract, for the reason supra fol.) matters in (d) account, (e) goods taken away, &c. But not dama∣ges which he is to recouer, as by reason of (f) trespasse done to his land, (g) batterie, false imprisonment, or such like.

In case of mayme there must bee three Capias, two in felonie, as stealth, robberie, and burglarie, one duely in the death of a man, bee it murder or manslaughter, and

high Treason.

Statutes.

25. E. 3. cap 14. The second▪ Capias i〈…〉〈…〉 of felonie must be returned three w〈…〉〈…〉¦ter. In case of Felonie and high 〈…〉〈…〉 they that tarrie the Exigent, though t〈…〉〈…〉 they render themselues, forfeit th〈…〉〈…〉¦tels.

Mixt, is that which is so by his 〈◊〉〈◊〉 as for want of goods hee may res〈…〉〈…〉 person. As first in all Praecipe quod f〈…〉〈…〉, and other personall praecipes, and in per••••¦nall Sifecerit te securums, not being 〈◊〉〈◊〉 the peace, and likewise in all Insti〈…〉〈…〉 vicontiell writs, the processe is a S••••¦mons by the defendants goods, an 〈…〉〈…〉¦ment or Pone per vadios and distresse 〈…〉〈…〉¦nite. Or if vpon the Sommons a Ni••il •••• returned, that is to say, that the partie 〈◊〉〈◊〉 nothing whereby to bee sommoned, th〈…〉〈…〉 continuall Capias.

Distresse infinite is a processe to 〈◊〉〈◊〉 him continually after, till he do appears •••• certaine of his goods, and profit of his lands, or as we vse to say, issues: which 〈◊〉〈◊〉 loseth if he appeare not.

Statutes.

Westm̄ 2. cap. 37. No distresse shall bee but by Baylifes sworne and knowne.

Westm. 2. cap. 39. The plaintife may a∣••erre that the Sherife might haue returned greater issues, and thereupon shall haue a ••udiciall writ to the Iustice of assise to en∣quire of what & how great issues he might haue answered from the day of the purchase of the writ to the day of the returne, and the Sherife shall be charged of the surplusage not returned.

1. E. 3 cap. 5. The like auerment of two smal issues returned giuen against the bai∣lifes of franchises as well as the Sherife.

Vpon this distresse must be returned in ••••••ues the value of all his lands from the Teste of the writ vntill the day of the re∣turne. As if his land be worth xij. C. by the yeare, and a moneths space betweene the Teste and the returne a C. l. issues must be returned vpon him.

And with these issues whether in this case or in any other case of a distresse infi∣nite, as after a venire facias to returne Iu∣rors, &c. the land is charge able into whose hand soeuer it come after. As if issues be re∣turned vpon Tenant in taile, tenant for life, or a man seised in the right of his wife, the land shall be charged after their death: or if an Abbot lose his issues, and after bee translated and made a Bishop, the successor during his life shall bee charged. And in this respect because the land is charged, the beasts of any stranger comming vpon the same land may be distreined for the issues lost.

In such proces •••• these where 〈…〉〈…〉¦mēt or distresse should go out, 〈…〉〈…〉¦dant be a 〈◊〉〈◊〉 clark he 〈…〉〈…〉¦ned by his person, or 〈◊〉〈◊〉 if 〈…〉〈…〉 lay see else. as if the Sherife re〈…〉〈…〉 Cleric•••• bene fieat•••• non hab•••••• 〈…〉〈…〉 Processe shall goe out to the 〈…〉〈…〉 make him appeare by the ••••••es of 〈…〉〈…〉¦nefice, which is called a ve••ire f〈…〉〈…〉¦ricum.

A Capāas lyeth not here against 〈…〉〈…〉 of the Realme. But against a Knight 〈…〉〈…〉¦eth, for a man may be a Knight 〈…〉〈…〉 freehold: So cannot an 〈…〉〈…〉 common e••endement. 〈◊〉〈◊〉 if 〈…〉〈…〉 thing in the Countie where he is 〈…〉〈…〉 partie shall haue an Elegit sure 〈…〉〈…〉 such a Countie where he hath assets.

In a repleuin in the Countie 〈…〉〈…〉 it by writ or plaint, if the go〈…〉〈…〉¦ed away, so as at the Tenants 〈…〉〈…〉 cannot be restored, As if he that 〈…〉〈…〉 driue them to a Fortlet or Castle, or 〈…〉〈…〉 the Countie, &c. whereby the Sheri〈…〉〈…〉 turne vpon the pluries that they are 〈…〉〈…〉¦ned, processe of with e••••••am lyeth, 〈…〉〈…〉 for the plaintife to haue of the others 〈…〉〈…〉 till restitution of his owne.

Statutes.

Westm̄ 1. cap. 17. The Sherife or Bay∣life may take the power of his Countie •••• Bailiwick, and beat downe a Castle or 〈◊〉〈◊〉

••here such beasts are enclosed, if hee that ••oke them will not make deliuerance.

Secondly in Trespasses vpon the case ••gainst the peace, and in all other trespas∣••es, whether it be a writ of deceit or Tres∣••asse vi, or though it bee a Writ from the King himselfe vpon a contempt or breach ••f the peace, as refusing to come at the King, being sent vnto him with money to ••ide him in his warre, and spoiling and wa∣••ting mens lands, goods, and chattels, and other vnlawfull acts doing, and so euerie contempt it is attachment: And if a Capias ••n these cases go ou•• first, and the partie be ••aken thereby, he shall be dismissed, because ••t should bee by pledges, distresse infinite, and vpon a Nihil returned, a Capias, as be∣fore.

Here for contempts a Capias lyeth against Piers of the Realme, as for rescousing of one arrested by the course of the Law, &c. And that is in respect of their disturbance of the Law.

In actions of trespasse with force, whe∣ther a common action or enditement of trespasse, appeale of batterie, or such like, after the attachment returned nihil, it is three Capias, viz. a capias alias and pluries, and then processe of outlarie.

Statutes.

Westm̄ 2. cap. 11. Processe of outlawrie giuen in an action of accompt.

25. E. 3. cap. 17. Such processe shall •••• made in a writ of debt and detinue of c〈…〉〈…〉¦tels, and taking of beasts by writ of 〈…〉〈…〉 and by processe of Exigend by the S〈…〉〈…〉 as is now vsed in a writ of accompt.

7. H. 5. cap. 1. In writs to be purchased ••∣gainst those that forge or make 〈…〉〈…〉 Charters or minuments, and them 〈…〉〈…〉¦claime or cause to be read, like processe s〈…〉〈…〉 be made by capias and exigend, as in w〈…〉〈…〉 of Trespasse.

19. H. 7. c••. 9. Like processe giuen in acti∣ons vpon the case sued in the Kings Bench, and Common place, as in actions of Tres∣passe and debt.

23. H. 8 cap. 14. Like processe giuen in e∣uery writ of annitie as in an action of debt

Notes

• 13 ••. 2 Iudg. 170.
• ••7 H. 6. 26.
• Old N. B. 177. 50 ••. 3. 16.
• (a)

  38 H. 6. 33.
• Old N. B. ibid.
• S〈…〉〈…〉. P••••r. 84.
• 22 H 6. 41.
• (a)

  35 H. 6. Br. Attachment 20.
• (b)

  7 H. 6. 10.
• (c)

  27 H. 6 2.
• (d)

  9. H. 7. 9.
• (e)

  ibid.
• (a)

  Br. per Stamf. 15.
• (b)

  32 E. 3. Exi∣gent 14.
• (d)

  35. H. 6. 6. Br. Exigent 24. 11. H. 7. 26.
• (a)

  22 E. 3. 11.
• (b)

  38 E. 3. 1.
• (c)

  14 E. 3. E••. 17
• (d)

  17 E. 3. 43.
• (e)

  22 E. 3. 11.
• Lit. 43.
• (a)

  9. H. 6. 20.
• (c)

  30. H. 6. 20.
• (d)

  9. H. 6. 20.
• (a)

  20. H. 7. 13.
• (b)

  50. ass pl. 1. 19. H. 6. 47.
• (c)

  16. E. 4. 4. 50 ass pl. 1. 9. El. Dy. ••62. 3. E. 3. Cor. 343. contr. Stāf. 188. b.
• (d)

  So ass. pl. 5. 28 E. 3. 92.
• (e)

  Stamf. 188. b.
• (f)

  28. E. 3. 92.
• (g)

  Stamf. 188. b.
• 22. ass. pl 81.
• 22. H. 6. 38. 34. H. 6. 49.
• F. N. Br. 92. g. 2. H. 4. 25.
• 21. H. 6. 56.
• 24. El. Fairfaxes case in the Cōmon place.
• D. Stud. per Br. issues 23.
• 22. H. 6. 4.
• 5. H. 7. 1. Br. 〈◊〉〈◊〉 41.
• Br exigent. 72. It •••• error if he be outlawed. 26. H. 8. 7.
• F. N. B. 73. & 74.