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. 31.

Of Oyer of the writ or bond, &c. view and prayer, voucher, garnish∣ment, Enterpleader to the Writ and Sainctuarie.

FOrreine aduantages are delayes without exception to any thing. •••• in all actions, oyer of the writ, &c. In reall actions, view, aide, prayer, and voucher.

View is in reall actions of the thing de∣manded, or of the land whence it commeth, * 1.1 when it is so necessarie as without view the defendant cannot well answer.

Statutes.

Westm̄. 2. cap. 48. From henceforth view shall not be granted but in case where the view is necessarie, as if one lose land by de∣fault, and he that loseth, moueth a writ to demand the same land. And in case where one by an exception dilatorie, abateth a writ after the view, as by non tenure or mis∣naming of the Towne, or such like, if hee purchase another writ in this case, and i•• the case before mentioned, from henceforth the view shal not be granted if he had view in the first writs. In a writ of dower where the demand is of the land that the husband

alienated to the tenant or his Auncestours where the tenant ought not to be ignorant what land the husband did alien vnto him, or his ancestours; though the husband di∣ed not seised, yet from henceforth view shall not be granted. In a Writ of Entrie also that is abated, because the demandant misnamed the Entrie; if he purchase ano∣ther Writ of Entrie, if the tenant had view in the first writ, he shall not haue it in the second. In all writs also where lands be de∣manded by reason of a Lease made by the demandant or his ancestor, as that which he leased to him beeing within age, not whole of mind, being in prison, and such like, view shall not bee granted hereafter: but if the demise was made to his ancestor, the view shal not lie as it hath don before.

Stat. De visu terre & essoyne de seruiti•• Domini Regis: View shall not be granted in a Writ of Ward, in a Writ of Customs & Seruices, in a Writ of Aduowson of a Church (but no•• in case where there be no more Churches than one in a towne, and all of one Saint) in a Writ of Dower, and in a Writ of Nuper obijt.

Ayd Prayer is for Tenant for life, to * 1.2 request him that hath the Inheritance, to helpe him plead. And therefore here the tenant himselfe remaineth alwaies party, & is neuer out of Court: and this Aid Prayer is for the feeblenesse of his estate.

So must an Incumbent, the Patr〈…〉〈…〉 Ordinarie. Else no recouerie against h•••• bindeth the successor or them. And th•••• is in respect of their interest to the Church; the Patron to present, and to haue an I〈…〉〈…〉∣cauit of the tythes: the Ordinarie to adm•••• & to present by Laps. But vpon Aid prayer it doth, though they make default, & con∣fesse the Action.

Statutes.

Westm. 2. Cap. 3. He that is in the ••••∣uersion shall be receiued in default of the Tenant for life. If iudgement be giuen by reddition, or default, hee in the reuersion shall haue a Writ of Entrie after the death of the Termor: so shall the heire where the Tenant was Tenant in Taile.

20. E. 1. De Defensionis Iuris: he in the re∣uersion desiring to be receiued before iudg∣ment, shall finde suretie (as the Court shal allow) to answer the value of the issues of the Tenants from the day of the receit, till iudgement, if it passe for the demandant.

13. R. 2. Cap. 17. The like receit shal be for him in the reuersion vpon the faint pleading of such a Tenant, and hee shall plead in chiefe without delay. And the Iudges by discretion shall giue dayes of grace betweene the demandant and him that is receiued; without giuing the com∣mon

day in plea of land, vnlesse it be by the demandants assent. Suretie of the issue shal be found (as before 20. E. 1.) as wel where the receit is counterpleaded as where it is granted.

Glocest. cap. 11. Tenant for yeares shall be receiued before Iudgement rendred, to say that the action was by couin.

Westm̄. 2. cap. 3. Receit is giuen to the wife in her husband, if he lose her land by default, and the tenaunt that recouered a∣gainst her husband must maintaine his owne right.

Voucher is the calling of one that should warrant in to answer the action. Therefore * 1.3 vpon the vouchees entring into warrantie the tenant is out of Court. And notwith∣standing a recouerie in a Warrantia chartae, yet if he bee afterwards impleaded in an action where voucher lyeth, he must vouch him against whom the recouerie was: else he shall haue no benefit of that recouerie.

Statutes.

Westm̄. 1. cap. 39. In mortdauncestor nu∣per obijt, intrusion, or other such like writs in which land is demanded which should defend, couert, remaine, or eschete, after the death of any ancestor or otherwise, if the tenant vouch, it is a good counterplea to say that the tenant or his ancestor was the first

that entred after the death of him of whose seisin he demands, vnlesse the vouchee bee readie, who if he vouch ouer, the demaun∣dant shall haue his counterplea.

Also in a writ of Entrie in the degrees none shall vouch out of the line. Also in writs of right or of possession (as before) that is a good counterplea, that the vouchee nor his ancestor had neuer seisin of the land or any thing in the seruices by the hand of the Tenant, or his ancestors from the time of the seisin whereof the defendant de∣clares till the writ purchased, so that hee might a feoffement make vnlesse the vou∣chee be present, who if he vouch ouer, the demaundant shall haue his Counterplea. But warrantie of charters lyes in these cases.

20. E. 1. Stat. de vocat̄. ad warrant̄. This Counterplea of voucher that the vouchee nor his ancestors had neuet any thing, so as he could a feoffement make with warranty shall be receiued, although the vouchee be readie to enter into warrantie.

14 E. 3. cap. 18. If the tenaunt voucha dead man, the demandant may auerre he is dead, or there is none such.

Westm̄. 2 cap. 6. If the vouchee counter∣plead the warrantie, and it be found against him, he shall lose the land. Where the vou∣chee * 1.4 losing the Tenant shall recouer in va∣lue

against him any hereditaments that he had at the time of the voucher. And there∣fore a voucher is in liew of an action where the originall processe is Somons ad warran∣tizandum (or (a) 1.5 if one bee vouched within age a Somons ad habendum visum first, and being awarded of full age, then a Somons ad warrantizandum, if he be awarded within * 1.6 age the parroll shall demurre) and a Grande Cape ad valentiam. If the sommons ad war∣rantizandum or habendum visum, alias, and pluries, be not serued, then a sequatur sub suo periculo is to goe forth. And if the tenant cannot get that serued, he loseth his war∣rantie. Therefore it is sub periculo of the te∣nant. And if vpon vouching of an heire the * 1.7 Sequatur sub suo periculo be returned nihil in the land by descent, but that he was som∣moned in land that he had purchased, the tenant loseth his warrantie, for the som∣mons must be in lands descended. But if the Sequatur sub suo periculo, or the Cape ad valen∣tiam * 1.8 bee returned serued, there the Tenant shall recouer in value.

But in exchanges the hereditaments are lyable from the verie time of the Ex∣change.

In partition among coperceners, from the death of their ancestor. So as the wiues dower whom he taketh before any voucher by reason of such an (a) 1.9 exchange, or whom a (b) 1.10 coparcener in gauell kind marrieth at any time, shall be defeated vpon a reco∣uerie in value or pro rata, for so is the reco∣uerie

in value called in the case of copar∣ceners.

Prerogatiue.

The King shall not bee vouched, but prayed in aide of which in that case hath the force of a voucher. As if the King by * 1.11 his letters pattents giue lands to one by this word (Dedi) the patentee shall haue aide of him, because by the same word he might * 1.12 vouch a common person. And when one prayeth in aide of the King in liew of a voucher, the speciall cause must be entred, else hee shall neuer haue in value by peti∣tion.

So of Coperceners.

And if two parceners make partition, one alienateth part of her purpartie, the other is * 1.13 impleaded and prayeth in aide of her co∣parcener, and they lose. In this case she shal recouer according to the rate of the moitie which she lost, whether the other aliena∣ted before aid prayer, or after.

In an assise of nouell disseisin and nu∣sance, voucher lyeth not, vnlesse the vou∣chee * 1.14 be present in Court, and will by and by enter into warrantie.

He that is impleaded in any action wher∣in he may vouch and doth not, shall neuer haue the benefit of a Warrantia chartae.

Aduantages in certaine personell acti∣ons are Garnishment and Enterpleader. Garnishment is vpon a writ of detinue,

when beeing alledged by the defendant to haue beene vpon a bailement by the plain∣tife, and another or for another vpon con∣dition. * 1.15 As that if I. S. doe such a thing the goods shall be deliuered to him (for though the plaintife sole deliuered the goods, and I. S. were a stranger, yet I. S. is to haue ad∣uantage of the condition, and may haue a writ of detinue) if not, then redeliuered to the plaintife, that other shall be brought in to shew whether by reason of that baile∣ment which the defendant so alledgeth both for the (a) 1.16 place, (b) 1.17 condition, (c) 1.18 and matter of the bailement, viz. who bailed it, &c. from which the Garnishee cannot va∣rie * 1.19 howsoeuer it agree or disagree with the * 1.20 plaintifes declaration, himselfe or the plain∣tife ought to haue them, for garnishment is but to know whether the condition, &c. alledged by the defendant were performed or not. And if they were deliuered vpon o∣ther condition then the defendant alledg∣eth, the garnishee is at no mischiefe but the defendant: for the garnishee may recouer them by a writ of detinue, and the defen∣dant by his false plea maketh himselfe chargeable both to the plaintife and to the garnishee. But if the defendant affirme not any certaine bailement for place, condition, * 1.21 matter, &c. as if the plaintife declare of a bailement vpon certaine conditions, &c. and shew which, and that he hath perfor∣med them, and the defendant pray garnish∣ment generally: there the garnishee may

varie from the bailement alledged by the Plaintife, for the defendant hath not affir∣med the same.

Enterpleder is when diuers bringing seuerall writs of (a) 1.22 detinue, ward (b) 1.23 or Quare (c) 1.24 impedit against the same person in the same County, and for the same thing, though (d) 1.25 they varie in time and place of deliuerie (for the place is not materiall be∣ing all in one Countie) so as they varie not * 1.26 in the substance of their declaration, as for to declare of a chest sealed, without alled∣ging any deed in certaine: and the others to alledge a deed in certaine. They (f) 1.27 all shall enterplead together, as much to say, the rest shall answer him that brought the first writ, and therefore shall haue the same * 1.28 day giuen them, if the writs be returnable at seuerall dayes. And the reason of enter∣pleding in detinue is, because otherwise if one recouer against the defendant, yet the others action is not abated, but continueth still. Otherwise it is in a reall action as in a formedon praecipe quod reddat.

Prerogatiue.

The King may appoint any place hee thinketh good to be a safegard for all offen∣dors flying thither, that they shall not bee molested or compelled to answer, whether one flie thither for (a) 1.29 treason, (f) 1.30 murther, theft, or other crime, for which he should lose life or member. And therefore this ta∣king

effect by the Kings grant onely (for touching the Kings prerogatiue so nigh it cannot (d) 1.31 be by prescription) and being an immunitie to one that offendeth the King and his Crowne, is a (e) 1.32 temporall matter pertaining to the temporall coertion & Iu∣risdiction, and need no consecration. But yet when it is consecrate by the Popes vn∣holy Ceremonies, it obteineth the name of Sancturary.

Statutes.

Taking of sanctuary away.

26. H 8. cap. 17. In high Treason.

2••. H. 8. cap. 7. In Petie Treason.

27. H. 8. cap. 4. and 28. H. 8. cap. 15. In treasons, felonies, robberies, and confedera∣ces, in or vpon the Sea, or other hauen, ri∣uer, creeke, or place where the Admirall hath or pretendeth iurisdiction.

32. H. 8. cap. 4. In wilfull murder, rape, robberie, in or neere the high way, or in any house, putting any person within in feare of his life, felonies, burning of houses or barnes with corne, robberies of Churches, Chappels, or hallowed places, and all pro∣curors, and abbettors, and all offences where sanctuarie lyeth not by the Law, or is taken away by any former Statute.

32. H. 8. cap. 12. In Treason, Misprision

of treason, Manslaughter within any of the places or houses of the King, or his heires, or where the King in person is abiding. So in stealing or in feloniously carrying away any plate, iewell or other goods of the king or his successors, aboue xij. d. value.

32. H. 8 cap. 1. made perpetuall. 32. H. 8. cap. 3. 1. E. 6. cap. 12. In murder or poyso∣ning of malice prepenced, breaking of any house by day or night, any person being in it and put in feare thereby, robbing in or nigh the high way, felonious stealing of horses, geldings or Mares, or stealing goods out of any Church or Chappell. But in all other cases of felonie it shall be granted.

2. E. 6. cap. 33. In felonious stealing of ones Horse, Gelding, or Mare.

1. Mar. cap. 6. In counterfeiting coyne that is not the coyne of the Realme, or cur∣rant in the Realme, the Queenes signe, ma∣nuell priuie signet, or priuie seale: and all procuring and abetting.

1. and 2. Ph. and Mar. cap. 4. From these that call themselues Aegyptians.

27. H 8. cap. 19. All in sanctuarie for murder or felonie out of the house, weare a badge in length and breadth ten inches: they shall weare no weapon but their meate kniues, and that at meale onely.

Both these vpon paine of losse of the priui∣ledge.

They shall not be out of their lodging before Sunne rising, nor after Sunne set vp∣on paine of imprisonment two dayes in that sanctuarie for the first time he is so ta∣ken, the second time sixe dayes imprison∣ment, the third time losse of his priuiledge, vpon substantiall and indifferent proofes before the Lord Chancellor. And it is fe∣lonie for any sanctuarie person that shall of prepenced malice make rescues, or resist any officer in imprisoning the priuiledged persons as before. Contracts vnder xl. s. tres∣passe and couenant betweene the priuiled∣ged persons, and other inhabitants in the sanctuarie, shall be determined before the Gouernour.

32. H. 8. cap. 12. All sanctuaries adnul∣led other then Churches and Churchyards, and certaine places named in that Act, and in 33. H. 8. cap. 15. which are appointed pla∣ces of Tuition, for terme of life to the of∣fendors in capitall offences. The priuiled∣ged persons shall euerie day bee called by name, and making default three seuerall dayes with lawfull cause, forfeit the priui∣ledge: committing any offence punishable by death is forfeiture also.

Notes

• * 1.1

  Stat. West. 2. c. 48. from henceforth view shall no•• be granted, but where it •••• necessarie, &c. sheweth that it did lye in those cases at the common Law. And this view must be demanded before any plea in bar, &. may be after plea∣dieg to the writ: for though one plead a plea that goeth to the action (as that the plaintife in a writ of dower is an alien) yet if he con∣clude to the writ, he may haue view after 3. H. 6. 55.
• * 1.2

  31 E. 3. Ioind in aid 10. 33 H. 6. 29.
• * 1.3

  31. E. 3. Ioynd. •••• ayd. 10. F. N. B. 1••4. ••▪
• * 1.4

  F. N. B. 134. k. 22. H. 6. 22.
• (a) 1.5

  45. E. 3. 23. 14. H. 6. 2. Br. Seq sub, &c. 3.
• * 1.6

  (b) Old N. B. 1•• Old N. B. ibid.
• * 1.7

  13. E. 3. Iudgement 117
• * 1.8

  3. H. 7. 13. Br. re∣c••••. en value 40.
• (a) 1.9

  Park. 61. ••.
• (b) 1.10

  Park. ibid.
• * 1.11

  15. H. 7. 10.
• * 1.12

  9 H. 6. 4.
• * 1.13

  1. E. 3 4.
• * 1.14

  F. N. B. 178. c.
• * 1.15

  14 E. 4. 2.
• (a) 1.16

  21. H. 6 35.
• (b) 1.17

  40. E. 3. 11.
• (c) 1.18

  20. E. 4. 13.
• * 1.19

  (d) 40. E. 3. 11.
• * 1.20

  (e) 4. E. 3. ibid.
• * 1.21

  21. H. 6. 35.
• (a) 1.22

  33. H. 6. 25. 8. H. 6. 30.
• (b) 1.23

  3. H. 6. 44.
• (c) 1.24

  19. H. 6. 68.
• (d) 1.25

  8. H. 6. 30.
• * 1.26

  (e) 33. H. 6. 25.
• (f) 1.27

  8. H. 6. ibid.
• * 1.28

  33. H. 6. ibid. 8. H. 6. ibid.
• (a) 1.29

  1. H. 7. 25.
• (f) 1.30

  Stamf. 111. The Abbot of bat∣taile had so.
• (d) 1.31

  1. H. 7. 26.
• (e) 1.32

  1. H. 7. 25.