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.

Prerogatiue.

The tenant cannot tender halfe 〈…〉〈…〉 against the King.

The heire or Executours in an Act〈…〉〈…〉 brought against them, where they are c〈…〉〈…〉¦geable pleading a matter in their 〈…〉〈…〉 knowledge (a) 1.1 which goeth in perp〈…〉〈…〉 bar, As for the heire to plead that nothing discended to him from the same Ancester▪ the Executour to plead a release or acqui••∣tance made vnto himselfe, or that hee was neuer Executor, nor neuer administred •••• Executor shall be charged as in their 〈…〉〈…〉 perdutie, if it passe against them. Other∣wise it is if the Executor pltad Mis〈…〉〈…〉, or another Executour aliue not named i•• the Writ, (for that is no barre but onely •••• the Writ) or Oriens inter mains (for that is no perpetuall bar, for a Scire facias lyeth if they come to haue lands after) or a release, or acquittance to their Testator: or Nie•••• le fait of their testator, for they cannot haue knowledge of it. Otherwise it is also if ••••∣ther * 1.2 the heireor Executor bee condemned by a Nihil dicit, or confesse the certaintie of the assets. And in the first case, as whe•••• the heire pleadeth nothing by discent, 〈…〉〈…〉 which is found against him, the plainti〈…〉〈…〉 shall haue an Elegit of the moitie of all 〈◊〉〈◊〉 lands as well purchased, ar by discent: 〈◊〉〈◊〉 in a Formedon en Descender, if the Ten〈…〉〈…〉 plead in barre a warrantie with assets, and the demaundant said Rien per descent, and

it is found that he hath by discent, he shall be barred of all that hee demandeth by his Writ (of how small value that bee which descendeth) because the issue that he tende∣red is false.

In Assises of Nouel Disseisin, Nusance, Mortdancester, Iuris vtrum, & in Endite∣ments and Appeales of Felony, the defen∣dant may plead in abatement, & ouer in barre, or take the generall Issue also. As in a Mortdancester, (a) 1.3 that he hath nothing but in right of his wife; or (b) 1.4 I. S. holdeth parcell of the land in demaund, not named in the Writ: and if that bee found against him, then that he hath abated. In an assise of Iointenancie, or Misnomer, which are in Abatement, or any matter in barre: (vnlesse he confesse a putting out of the Tenant, or that which amounts to as much, as by plea∣ding a release, or such like) and if that bee not found, then he hath done no wrong. In a Iuris Vtrum the Tenaunt may plead * 1.5 Misnosmer of the Demaundant, or that a stranger holdeth parcell not named. And if it be found, &c. that the demandant hath receiued his fealtie, &c. And if it be found, &c. then that it is his Lay fee, and not Franke Almoigne, &c. In an Enditement, or Appeale of death, misnomer of himself, or no such towne; and to the felonie not guiltie. But he cannot plead a Release, and to the felonie not guiltie: for by the Re∣lease he hath in a maner confest the felony: * 1.6 also he may plead a matter in bar, & vpon

that found against him, then plead not guiltie, though he pleaded it not before.

In Assises of Nouel Disseisin, and Nu∣sanc, * 1.7 he may plead a speciall matter that amounteth but to the generall Issue. As in an Assise of Rent by Deane and Chapter, to say that Rescous was made to the prede∣cessor, and no seisin in him, or in any Suc∣cessor since that time. Though in the pre∣tence of him that pleadeth it, it amount to no more, but that the plaintife was neuer seised, so as he could not be disseised.

Vpon (a) 1.8 Enditements of Felonie 〈◊〉〈◊〉 Treason, otherwise it is in Appeales, the defendant being put to answere, which is called an Arraignement, is not allowed councell, if he denie (b) 1.9 the fact. For either his conscience perhaps wil sting him to vt∣ter the truth, or otherwise by his gesture, countenance, or simplicity of speech, it may be discouered; which the artificiall speech of his Councell learned, would hide and colour. Also himselfe can best answere to the fact. But if he plead Sanctuarie, or any other matter in Law, then he shall haue * 1.10 councel. A presentment in the left or she∣rifs turne, after the day of the presentment bindeth the partie for euer, and is not tra∣uersible but in cases that touch ones Free∣hold: as that one ought to clense the High∣way * 1.11 or such like rationae tenure suae: therfore the course is to remoue such presentments into the kings Bench by a Certiorari, where he may trauerse them.

Notes

• (a) 1.1

  3 & 4. P. & M. Dy. 149. 21. E. 3. 9. 6 & 7. E. 6 Dy. 81 34. H. 6. 22. Br. Exec. 22.
• * 1.2

  6 & 7. E. 6. Dy. 81. Where the heire is condemned by a Nihil dicit, execu∣tion shall be of lands descended by a speci∣all Elegit not of his goods, &c. nor no Cap. ad satisf. lyeth against him. 21 E. 3 ibid.
• (a) 1.3

  40 E. 3. 29.
• (b) 1.4

  2 E. 3. 62. 22 E. 4. 3••.
• * 1.5

  12 E. 2. Iur. v••r. 12
• * 1.6

  4. H. 6. 15. 22 E. 4. 39. Ibid.
• * 1.7

  1. E. 5. 5.
• (a) 1.8

  9. E. 4. 2.
• (b) 1.9

  Stamf. 151. b.
• * 1.10

  •• H. 7. 23. 32. H. 8. Dy. 13. 41. E. 3. 27.
• * 1.11

  5. H. 7. 3.