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. 43.

Of Mesne; Iudiciall processe.

IVdiciall Processe is a Processe out of that Court where the original is retur∣ned, prosecuting the action. And there∣fore vpon an originall returned ••arde, an alias and pluries shall go out of the same * 1.1 Court Teste the chiefe Iustice, for by the re∣turne the Court is possessed. But if no re∣turne at all bee made, the alias and pluries shall go out of the Chancerie, Teste Regem. This must be sealed with a seale Iudiciall, being in the custodie of the chiefe Iustice of that Court.

Iudiciall processe are mesne processe •••• in nature of new originals.

Mesne processe which is for any neces∣sarie act to be done, not onely for the plain∣tife against the defendant, but for either of them against any other, whose presence in the Court may be necessarie for them. As a∣gainst one that is vouched or praied in aide * 1.2 of. So against Iuries, witnesses, &c. So to ex∣ecute iudgements giuen, or any thing else necessarie for the triall of any of their alle∣gations.

Vpon a fine leuied before it be engrossed the writs to compell atturnement are per * 1.3

quae Seruicia, when the fine is leuied of a * 1.4 seigniorie.

Quem redditum reddit, when it is of a * 1.5 rent charge or rent secke.

Quid iuris clamat, when it is of a remain∣der or reuersion. * 1.6

Statutes.

23. Eliz. cap. 3. Plie entrie of record of an Atturnement vpon a fine shal be vtterly void, except the partie (mentioned to at∣turne) first haue appeared in Court in per∣son, or by atturny warranted by the hand of one of the Iustices of one Bench or other, or of one Iustice of assise, vpon a writ of Quid iuris clamat, qu••m redditum reddit, or per quae seruicia, as the case requireth.

In petitions whether in Parliament or * 1.7 elsewhere, and though the king haue gran∣ted the lands ouer, or wheresoeuer the king being made partie, may be at losse: as when he is prayed in aide of, in a praecipe quod red∣dat, or other reall action against his lessee, but not in (b) 1.8 trespasse (c) 1.9 Eiectione firme, or other (d) 1.10 personall action, for there he is to lose nothing. A writ of search lyeth, which is to search in the Tresury before the plea proceed, if by likelyhood some matter may be there to maintaine his title. As vpon fin∣ding by office that A. died seised (of cer∣taine land holden of the King) without heire, and a trauerse put in that A. held not of the king. But if one come and say that A. had issue B. who enfeoffed him, there no

search shall be, for no matter can be in the tresorie to proue whether A. had issue, no more if the kings title be by an alienation in mortmain.

Statutes.

14. E 3. cap. 14. In a petition and search granted after foure writs, whether any im∣minent or remembrance bee found for the King, or nor, the partie shall be put to an∣swer. So as euery of the foure writs be deli∣uered to the Tresorer and Chamberleins xl. dayes before the day of the returne.

In reall praecipes where a freehold is to * 1.11 be recouered vpon default, after plea issue or demurrer a petie Cape shall goe foorth in the nature of a grand Cape in all things, saue that here the tenant is to answer to the de∣fault onely, not to the demand also, as in a grand Cape And therefore it is called a pety Cape, and the other a grand Cape, because there is lesse in the one then in the other.

So vpon a voucher a petit cape advale•••• ciam. In those that are for other heredita∣ments, * 1.12 not in point of seigniorie, as (a) 1.13 an∣nuitie, (b) 1.14 Quare impedit, Quo iure, (d) 1.15 quod perm••itat, &c. vpon default as before, a di∣stresse * 1.16 shall goe forth in liew of a petit Cape. And both there, and vpon view granted, day shall be giuen as in a plea of land, for it * 1.17 is in the nature of a praecipe quod reddat, in as much as hereby he is to recouer the land it selfe.

The Processe against Iurors is first

a Ʋenire facias to the Sherife to returne * 1.18 them, at which day if they appeare not, then a habeas corpora.

And after that a distresse infinite.

Statutes.

27. Eliz. cap. 7. No Iuror shall bee retur∣ned without the true addition of the place of his dwelling at the time of the returne, or a yeare before, or some other addition whereby hee might bee knowne, nor no estreet shall be without such addition as is in the returne.

35. H 8. cap. 6. In euery Habeas corpora or distringas with a Nisi prius at the first writ, v. s. at the least shall bee returned in issues vpon euerie Iuror, at the second, x. s. at the least, at the third xiij. s. iiij. d▪ and euer after∣wards the double of xiij. s. iiij. d.

2. G. 6. cap. 32 If the principall Iurie ap∣peare not fully at the nisi prius, those that make default, shall forfeit their issues, though the Iurie be made vp de circumstan∣tibus.

where in personall actions vpon the de∣fendants default, the Iurie shall be taken, which wee call taking of the Iurie by de∣fault: In an action of trespasse alwayes (a) 1.19 whatsoeuer the issue be, (b) 1.20 release, (c) 1.21 Iustification, &c. So in (d) 1.22 debt, detinue, account, & the rest which are for things in

certaintie if the issue be taken vpon a matter en fait onely, as (e) 1.23 payment, or that an (f) 1.24 acquittance pleaded in barre by the defen∣dant, was made by dures. But if it be vpon the acquittance it selfe, release or other mat∣ter in writing, the plaintife may there pray iudgement if he will. But if he do not pray it, the Iurie shall be taken by default, as in an action of trespasse.

But in assises of nouell disseisin, nu∣sance, mortdancestor, darrein presentment, and Iuris vtrum, the original writ comman∣deth * 1.25 a Iurie, as well as the defendants, to be warned, which Sōmons to the Iurie, ser∣ueth in stead of a venire facias. So that the processe here against the Iurie is, Somon' ha∣beas corpora & Distringas.

And therefore there vpon default after that originall processe ended, viz. the A∣tachment in an assise of nouell disseisin and nusance, the sommons and resommons in a (i) 1.26 mortdancestor, darrein presentment, and (k) 1.27 Iuris vtrum, the enquest shall bee taken by default, whether the default be present∣ly after the resummons or after essoine, or plea pleaded. As it should bee taken if the Tenant did appeare.

Notes

• * 1.1

  22. Eli. Dy.
• * 1.2

  1. H. 6. 4.
• * 1.3

  Old N B. 171.
• * 1.4

  Old N. B. 170.
• * 1.5

  Old N. B. 170.
• * 1.6

  Old. N. B. 168.
• * 1.7

  Stam. praer. 73.
• (b) 1.8

  27. H. 8. 28.
• (c) 1.9

  15. Dy. 320.
• (d) 1.10

  27. H. 8. ibid.
• * 1.11

  38. H. 6. 33. 8. E. 44. for the Demurrer 38. H. 6. ibid.
• * 1.12

  Old N. B. 179.
• (a) 1.13

  2. H. 4.
• (b) 1.14

  ••••. H 4. 1.
• (d) 1.15

  30 H. 6. 8.
• * 1.16

  (c) Old N B. 71.
• * 1.17

  30. H. 6. ibid.
• * 1.18

  Old N. Br. 171.
• (a) 1.19

  Br. defaut 58.
• (b) 1.20

  34. H. 6. 24. 2. H. 4. Br. enq de dam. 11.
• (c) 1.21

  9. H. 5. 15.
• (d) 1.22

  5. E. 4. 6. 1. H. 7. 1.
• (e) 1.23

  1. H. 7. 1.
• (f) 1.24

  9. H. 5. 13. 42. E. 3. 1.
• * 1.25

  The forme of all these writs. (h) Old N. B. 106. in an assise of nouell disseisin, and 25. in darrein presentmēt.
• (i) 1.26

  F. N. B. 196. g
• (k) 1.27

  F. N. B. 50. k.