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. 2.

Of Writs Originall.

OF an action, there be two parts, Suite, and Iudgement.

Suite, is the parties dealing in the action: and therefore all that while it is said to depend in plea, but not after Iudgement. The partie that bringeth the action, is called Plaintife in a personall action: demaundant in a reall: he against whom it is brought, Defendant in the first, Tenant in the other: who for their helpe are allowed councell learned in the Law.

Statutes.

Westm̄ 1. cap. 25. No minister of the King may maintaine another in any

action in the Kings Court to haue part of the thing, or other profit by couenant vp∣on paine of punishment at the Kings will.

Westm. 2. cap. 49. None of the Kings of∣ficers shall take, or purchase, or bargaine for land, tenement, or aduowson whilest the thing is in plea, vpon paine to bee puni∣shed at the kings pleasure, as well the pur∣chaser as the other.

Artic. super chart. cap. 11. Neither the Kings officer, nor any other shall do so vp∣on paine of forfeiting to the King so much of his lands as a mounteth in value to that he purchaseth. Any may sue for the King before the Iustices, before whom the plea hangeth.

32 H. 8. cap. 9. None shall, buy, sell, or get, or take promise, or grant to haue, any pretensed rights or titles to lands, &c. except the seller, or those (by whom he claimeth) were in possessions, or tooke the profits, by space of a yeare next before, vpon paine that the Seller, &c. shall forfeit the value of the land, and likewise the buyer know∣ing the same. Prouided, hee that is in law∣full possession by taking the yearly profits, may buy, &c. anothers pretensed right.

Gloucest▪ cap. 8. Atturnies may be made in all pleas, where appeales lye not.

Met. cap. 10. In suits; at a Countie, ty∣thing, hundred, wapentake, or Court of the Lord.

Westm. 2. cap. 10. A generall Atturny may be made, in all Counties where Iusti∣ces

do iourney.

3. H. 7. cap. 1. An appeale of murder or death, may be pursued by Atturney.

The suite hath two parts, the begin∣ning and proceeding.

The beginning is the proper dutie of the plaintife. And hath two parts.

The first matter of the suite, and origi∣nall processe.

The first matter of the suite must al∣wayes be brought in that Countie where the cause of suite groweth. As actions of debt vpon an escape, may be brought in the Countie where the arrest or escape was. But not in any other Countie: A (a) trespasse of battery, goods carried away, or writings broken, may be brought in any Countie; for they are not locall. Otherwise it is of trees, or grasse cut downe, they must bee brought in their proper Countie, if it be by bill, the Countie is set at the margent.

Statutes.

6. Ric. 2. cap. 2. Debt, account, and all such actions shall be brought in the coun∣tie, where the contract was made.

The first matter of the suite is for euery man by writ out of the Chancerie, or in Courts where writs lye not by plaint or bill: for the King alone by enquirie.

In all of the first kind, the plaintife must find suretie by some that will be pledges to prosecute the suite. And so is the forme of

euerie originall Si (the Plaintife) fecerit it securam de clamore suo prosequendo, The en∣trie is, plegij de prosequendo Iohannes D••••. Rich. Roo. And these may be either to the officer, or to the Court where the suite is. But a poore man in stead of sureties shall giue his faith to prosecute it: whereupon the forme for him is, Et nisi fecerit & prae∣dict, (the plaintife) fecerit te securum de cla∣more suo prosequendo per fidem suam quia pan∣per est.

Writs that begin the suit, are originall, or Commissionall.

Originall which appoint the first pro∣cesse, if the plaintife find pledges returne∣able in the Kings Bench, or Common place.

This must be (a) true Latin, for vpon habeas ibi hos (b) breue, or vxori (c) where it should be vxor, and such like, the writ shall abate, and beside (d) formal, As (e) the Generall to be put in demand, and in plaint before the speciall. As land is generall to pree, pasture, wood, ioncarie, marsh, &c. Wood is the generall of all trees growing, and therefore shall bee put in demand be∣fore Alders and Willowes which are but species of it. The entier shall be demanded before the moyetie or part or parts. The more worthie thing shall be demanded be∣fore the lesse worthie, as a messuage before land: for land that hath building vpon it, is more worthie then land without buil∣ding. A Castle, before a messuage, or a

mannor (and yet it may bee parcell of a mannor.) But the reason is because a castle is more worthie. As being a place of force and defence against the enemie in time of warre, and against Rebels in time of rebel∣lion, a place in time of peace fit for the cor∣rection and imprisonment of great Malefa∣ctors, and a magnifical habitation for No∣blemen▪ So in a repleuin, if it bee of two Chattels, one quicke and the other dead, the liuing thing shall be first demanded.

Also it must expresse the name of bap∣tisme, and surname, or in liew thereof, the name of dignitie both of the plaintife and defendant. But not the name of his office, which is no dignitie. As pr. q. r. Iohanni Du∣ci (a) Lancast. is good, but not Iohanni Recto∣ri (b) de D. without expressing his surname. But when an officer is to sue by reason of his office, as a (a) prebendary (b) person, executor (c) gardein (d) by Knight seruice, &c there he must expresse the name of his office: or when one bringeth an appeale of murder, ••s brother and heire, &c.

Where there be many of one name, diuer∣sitie of the names must be put by addition of eigne puisne, &c. else the writ shall abate.

A Corporation may sue by the name that they are corporate, without name of Bap∣tisme or surname, as pr q. r. maiori & comu∣nici L. &c. or Decano et Capitalo D. &c.

Statutes.

1. E. 6. cap. 7. The acceptance of a new name of dignitie shall not abate the writ.

The kings seruants in his Court or o∣ther by speciall grace of the Chancellour may here bee admitted to finde pledges in the Chancery. And then the forme is, Quia praed. (the plaintife) fecit nos secures de clamore suo prosequendo pro C. de com. L. et D. de com. S. summoneas, &c.

Notes

• 10. El. Dyer 2••••. 5. El. Dy. 220.
• 14. E▪ 4 4.
• (a)

  2. Mar. Br. attaint 104.
• (b) Br. bill 35.
• 9. E. 4. 27.
• Regist fol. 228 et per Br pledg 29.
• (a)

  ••. E. 3. 4.
• (b)

  9. H. 7. 16.
• (c)

  3. E. 3. 86.
• (d)

  3 E. 3 ibid. All this that fol∣loweth is the rule of the Register.
• (a)

  8. E 4. 24. E 4. 24. saith, the reason is because there are in Englād no more Dukes of that name: and so i•• may well enough be knowne of whom it is meant: and also for the selemnitie of the creation. But o∣therwise it it of knights for there are 1000. Knights in England. Therefore there the writ must be pracipo I. S. mi∣liti.
• (b)

  27 H. 6. 3.
• (a)

  13. E. 3. br. 675 in act reall.
• (b)

  12. H. 4. 20. in Assise. 10. H. 7. 5. in wast. 18 Ed 4. 17. in an∣nuitie.
• (c)

  30. H. 6. 5.
• (d)

  9 E. 3. 465. 33. H. 8 Dy. 50. 37. H. 6 29. 27. H. 6. 3.
• Regist. fol. 2••8. & per Br. pledg 29.