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.

Statutes.

35. H 8. cap. 6. made perpetuall. 2. ••. ••

cap. 32. A Tales may be made vp before Iu∣stices of Assise or Nisi prius of able persons of the same Countie, then present at the prayer of the plaintife or demandant.

4. & 5. Ph. & Ma. cap 7. So for the King vpon request by any authorised thereunto, or assigned of the Court, or by the partie that followeth vpon a penal statute as wel for the King as for himselfe.

14. El. Cap. 9. Such a Tales de circumci∣bus before the Iustices of Nisi prius shall be granted at the prayer of the defendant or auowant.

But in Enditements and Appeales * 1.1 that touch life, a Tales may be of a greater number than the principall Panell. As a xl Tales, or as many as the Court wil award, and that is in respect of the peremptorie challenge of xxxv.

The Iurie being charged, may neither eat nor drinke (but by leaue of the Iusti∣ces) * 1.2 before their verdict giuen; and doing it before they bee agreed, it maketh their verdict void. After they be agreed, it is but fineable.

The Iurie vpon arraignement either at the (a) 1.3 Kings suit, (b) 1.4 or in an Appeale acquitting one that was found guilty of the (c) 1.5 death of a man vpon an enquirie (d) 1.6 by the Coroners Super visum corporis must find who did the fact. But not vpon an En∣ditement (e) 1.7 before the Sherife or Iustices

of peace, for that is not of Record, a•• th•• finding before the Coroner is, (f) 1.8 neither doth this take place in an acquitaile vpon an Enditement for the felonious taking of goods.

The Iurie in an Assise of Nouel disseis•••• (which are there themselues properly cal∣led * 1.9 an assise) shall inquire of the plea in a∣batement, though the issue be ioyned vp∣on the seisin and disseisin. And therefore no plea in Abatement is there answera∣ble.

34. E. 1. De Coniunctim feoffatis. The de∣fendant in Assise alledging iointenancie of his part with a stranger by Deed, the plain∣tife may auer him to be sole tenant; wher∣upon Processe shall be made against both the defendant and the stranger. And if at the day both of them iustifie the feofment, they shall maintaine the exception, and further answer to the Assise as if the origi∣nall had been purchased against him ioint∣ly. If the exception be prooued false by the Assise, they shall haue a yeares imprison∣ment though the assise passe for them. If the defendant absent himselfe at the day, the Assise shall passe against him by de∣fault, though the stranger appeare and iu∣stifie the Deede. Whither both, or one ap∣peare, if it be found by the Assise that the Exception was truly alledged, the Assise shall passe no further, but the Writ shall abate. Such an Exception shall not bee al∣ledged

by the Bailife of any Tenant. The like processes in assises of Mortdancester and Iuris vtrum.

An Infant bringing an Assise, if a mat∣ter en fait, that is, done in the same Coun∣tie be pleaded against him, whether in A∣batemēt, * 1.10 as in an assise of rent, that he had made his plaint of the same land whence he supposeth this rent to bee issuing; or in bar, (b) 1.11 as the Deed of his Ancestour, with warrantie, the Iurie shall inquire of all the circumstances. Otherwise it is in a Writ (c) 1.12 of Entrie sur disseisin, or other (d) 1.13 Praecipe qd reddat: for there the point put in issue, and no other, shall be tried by the Iurors. Otherwise it is also in an Assise vpon plea∣ding a recouerie (e) 1.14 against him, or other matter of Record: in that case he must an∣swer, and the Iury shall not inquire of the circumstances, fot the Court shal plead and maintaine for him.

The like inquirie of the circumstances * 1.15 shall be, if in an assise brought against him he plead to the assise at large. Otherwise it is if he plead in bar, for there if the plaintif make himself title as by a statute marchant &c. and the infant trauerse the title which is found against him, the plaintif shal haue iudgment without inquiring of the circū∣stances, because the issue is taken out of the point of the assise, and therefore is al one as if the infant were of full age. So that it is better for an infant to plead vnto the assise at large, than otherwise.

The forme of an Assise of nouel Disseis•••• i•• * 1.16 this, Rex vic' salutem. Quastus est 〈…〉〈…〉 B. iniuste, & sine iudicio disseisiuit e〈…〉〈…〉 tenemento suo in N. infra triginta ann•••• i•• ••l∣timos clapsos. Et idéo tibi praec' qd si pradi•••• •• fecerit te securū de clam' suo pr' os tunc 〈…〉〈…〉∣nement' illud reseisum de catallis quae i•• i••s•• capt', & ipsum ten' cum catall. esse in p••••••••s∣que ad proximā assisam, cum Iustic' ••••'i i•• p••••∣tes ill' venerint. Et in earim fac' 12 liberos & legales homines de visum illo videre tan' illud, & nomino eorū imbreuidri fac'. Et sum' en p•••• * 1.17 bonos sum' qd sint corā praefat' Iustic' ••r' i•• •••• pr••fatā assisam parati inde facere recogn' •••• pona per vadiū & saluos pleg' praed. B. vel 〈…〉〈…〉 suū, si ipse inuentus non fuerit qd tunc sit ibi •••• illud recogn' anct'. Et habeas ibi summ' 〈◊〉〈◊〉 pleg': & hoc breue. Teste, &c.

If the tenant in a Mortdancester (bee it tenant of the land, or tenant by his waran∣ty) * 1.18 trauerse any point of the writ, as the dy∣ing seised of his Ancestor, &c. which goeth in abatement of the writ, yet the Iury 〈◊〉〈◊〉 inquire of all the points: as whether the d••∣mandant be next heire, & whether his ••••∣cestor died within fiftie yeares, &c. 〈…〉〈…〉 one found against the demandant, 〈◊〉〈◊〉 the writ. But a plea in bar of the assise by matter of record, releas, collateral warr〈…〉〈…〉 or such other matter as is out of the 〈…〉〈…〉 points of the Assise, is peremptorie to the Tenaunt, if it passe against him. And •••• such a plea in Barre bee found agai•••••• the Tenaunt, and yet the Iurie inq〈…〉〈…〉

further, and find one of the points of the writ against the Demaundant, as that his ancestor died not seised, &c. he shall reco∣uer notwithstanding that, for such an en∣quirie should not bee vpon a plea in barre. Dyer thinketh it to be so likewise, where the Tenaunt voucheth, and the Demaundant doth counterplead the voucher, viz. that in that case though the counterplea be found for the Demaundant, yet that all the points must be enquired and found for the De∣maundant, or else he shall not recouer. But Fitzherbert thinketh otherwise in that case, because it is a plea in barre, and not to the Writ.

For the Iuries direction in their verdict greater libertie is permitted in pleading, •• * 1.19 matter doubtfull in Law, for a Trauerse may be omitted. As in debt against an Exe∣cutor, it is a good plea to say, Administra∣tion was committed to him, and therefore he should be named Administrator, and not executor, without trauersing that he is not Executor, for the lay people know no difference betweene one administring as Executor and one administring as Admini∣strator.

The speciall matter may be pleaded to∣gether with the generall issue, &c. As that * 1.20 the Obligation put in suite, was sealed by him and deliuered to A. to keepe till cer∣taine Indentures were made betweene the Plaintife and him, before which Indentures made, the Plaintife tooke the Obligation

out of the possession of A. So is it not his deed. This is good, and yet by this generall conclusion the matter precedent shall not be waiued, for it were perillous to put the speciall matter in the mouth of the Lay people.

The Count may be abridged before ver∣dict, so as the originall remaine true, as in an assise of his freehold, and make his plaint of land and rent, he may abridge it * 1.21 for the rent. In an assise of his freehold in D. and demand two mannors in D. he may abridge his plaint for one. But being of his freehold in D. and S. and demand one man∣nor extending into both, he cannot abridge either of them, for then the writ remaineth not true. In a writ of wast and assigne it a∣mong other things, in racing of a Copper * 1.22 fixed to the soile, he may abridge the wast assigned in that, so as thereby he falsifie not his writ. But if the writ bee Quare vastum fecit in domibus boscis & gardinis, he cannot abridge the wast supposed in domibus. In a writ of ward De custodia terre et heredis, and * 1.23 count of the mannor of D. and xv. acres of land, which in truth are parcell of the man∣nor, and pleaded by the defendant in abate∣ment of the writ: hee may abridge his de∣mand of the xv acres. In trespasse de bonis et catallis captis, and count of money taken a∣way * 1.24 (for which this forme will not serue, the money must needs bee expressed in the writ) hee may abridge the count touching that.

Notes

• * 1.1

  14. H. ••. 7.
• * 1.2

  20. H. 7. 3. 6. H. 8. Dy. 3.
• (a) 1.3

  14. H. 7. 2.
• (b) 1.4

  14 H. 7. ibid.
• (c) 1.5

  13. E. 4. 3. 4. E 6. 12.
• (d) 1.6

  13 E. 4. ibid. 4. E. 6. ibid.
• (e) 1.7

  14 H. 7. ib▪
• (f) 1.8

  13. E. 4. ibid. 4 E. 6. ibid.
• * 1.9

  7. E. 6. Pl. 91. Ibid.
• * 1.10

  (a) 11. Ass. pl. ••.
• (b) 1.11

  48. E. 3. 33.
• (c) 1.12

  9 E. 4. 34.
• (d) 1.13

  48. E. 3. ibid.
• (e) 1.14

  48. E. 3. ibid.
• * 1.15

  28. Ass pl. 21.
• * 1.16

  Old N. B. 104.
• * 1.17

  14. El. D. 310. for all.
• * 1.18

  40. E. 3. 48. 39. Ass pl. 13.
• * 1.19

  9. E. 4. 3••.
• * 1.20

  9. H. 6. 38.
• * 1.21

  14. ass. Pl. 9. 4. E. 4. 33. 14. H. 6. 4.
• * 1.22

  10. El. Dy. 172.
• * 1.23

  39. E. 3. 10.
• * 1.24

  ••9. E. 3. 20. Br. abridgem. 111.