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.

Westm. 1. Cap. 15. Such as are accused of receit of felons of commandement, or force, or of aid in felonie done, and a man appealed by approuer, after the death of the prouer (if he be no common theefe, or de∣famed) shal be let out of prison by a surety.

8 Recaptiō is for him whose goods being distreyned before for rent or seruices, but * 1.1 not for dammage fesaunt: for there as oft as they are so found vpon ones land, it is lawfull to distreyne them. For eury time is a new wrong, and a new trespasse, are * 1.2 distreyned againe for the same thing, han∣ging the plea in the Countie Court, or be∣fore the justices. Though the first distresse were lawfull, and though the rent or ser∣uice were behind againe, or not: for by the first distresse he shall haue a Returne til he be satisfied of all. And here the goods di∣streyned, must be the same parties goods. * 1.3 For if the Lord first distreyned his tenant, and after the beasts of a strager, no Re∣caption lyeth. But vpon a distresse of two mens beasts first, and after of the beasts of

one, it lyeth for that one: so vpon a di∣stresse * 1.4 of beasts which a man hath in common with another, and after of such beasts as are his owne alone. Also he that taketh the second distresse must bee the same partie that distrained first: as if the Lord distrained first, and then his seruant or Bailife distreineth againe by his com∣mandement, or without his commande∣ment, if he agree afterwards to it, as by ioi∣ning with his seruant or Bailif when they pray in aid of him. Otherwise not, though the Bailife make conisance in his right: for it may be he hath no notice of it, and the partie hath remedie against the baily by an action of Trespasse. But this writ lieth not * 1.5 after Non suits in the repleuin; because there the plea is not hanging: but before auow∣rie in the Repleuin it doth, for the plaintif in the recaption may well count that the defendant tooke them for the same cause: And that may make a good issue, which the inquest may take notice of wel enough by the euidence of the parties. But vpon a * 1.6 Repleuin sued by plaint or writ in a Fran∣chise, and not before the sherif or the kings Iustices, no recaption lieth, though he bee distrayned by the same partie againe, and for the same cause, for the King will not direct this writ but to the Sherife. But if the suit be remoued before the Iustices by a Pone or Recordare, there a Recaption lieth as well for a distresse before the Pone or Re∣cordare, as afterwards. And here the plain∣tife

shall recouer dammages for the second taking onely, because it is a contempt a∣gainst Law, for which the defendant shal be fined if he be conuict before the justices, or amereed, if the conuiction be before the sherife, but shall recouer no dammages for the taking nor the detaining of the beasts. And therefore here the defendant shall not make auowrie, as he should in a Repleuin, but onely may iustifie the taking, as in an action of Trespasse.

9 A writ De magna assisa eligenda to the sherife, to summon foure knights to choose * 1.7 the grand Assise, when the mise is ioyned thereupon in a writ of Right.

And this is a méere iudiciall Writ issu∣ing out of the Common place when the plea hangeth there. But when the plea is in the Lords Court, or in the County Court, then it is an originall writ out of the chan∣cerie.

10 A Certificate De Assise vpon a verdict * 1.8 giuen in an assise that is no perfect, whe∣ther not well examined by the Iustiees, or not fully inquired of by the Iurie, to bring in the same Iurors to giue a more perfect one. And this must be sued in the same coū∣tie where the assise was sued, and may bee * 1.9 as well before other justices, as those that took the assise: if the kings Bench, or com∣mon place be in the countie where the As∣sise passed, thē this writ may be sued there.

And beside the writ it selfe directed to the * 1.10 sherife, the Iustices must haue a patent made vnto them as in the assise it selfe.

11 Proprietate Probanda vnto the She∣rife to inquire whether the property bee to the plaintif or defendant, when vpon a re∣pleuin * 1.11 sued, the defendant claimeth proper∣tie, which determineth the sherifes power to make Repleuin.

And this also may be meere iudiciall is∣suing out of the Kings bench (a) 1.12 or commō * 1.13 place, (b) 1.14 and returnable there.

Secondly hither belong those that be pro∣hibitorie, or restraine from doing somthing where the prohibition it selfe is in lieu of a Summons. And after that, the proces is an atachment and distresse. So in euerie writ which is vpon a prohibition broken, * 1.15 as a quare non admisit, quare incumbrauit: for euery breach of a prohibitiō is a contempt in it selfe.

Of this sort are

1 Prohibitions to restraine the party from suing in an inferior court, that ought not to hold plea of it: as in the spirituall court, for (a) 1.16 any plea that concerneth not matrimonie & wills, as for goods or debts, &c. and (b) 1.17 though it be of matters for which the plaintifs haue no remedy by the common Law, as of a couenant broken without specialtie, or debt, &c. against exe∣cutors vpon a simple Contract made by their Testatour. Or Pro laes••••ne fidei against one which hath waged his law

in an action of debt vpon a simple contract * 1.18 and sworne falsely. So if the Baylife in a Court baron hold plea of matter aboue xl. s. the defendant may haue a prohibition. And these prohibitions may be directed to the Iudge himself, not to hold plea in those cases, as well as to the Sherife, to restraine the partie from suing.

Such a prohibition is an Indicauit for the Defendants patron when the right of auowson of any part of ones tythes is in demaund in the spirituall Court, betweene two Clarkes claiming from seuerall pa∣trons. So as the Indicauit is alwayes be∣tweene * 1.19 foure persons, whereof two are pa∣trons, and the other two Clarkes. One clai∣ming to hold of the auowson of one pa∣tron, the other of the other patron, for an a∣uowson being a lay hereditament, where∣soeuer the patronage should come in que∣stion the Common Law is to decide it: But where that is not to come in question, the * 1.20 spiritual court shal decide it, by suit in that Court called spoliation. As a person accep∣ting another benefice, or created a Bishop, and hauing a dispensation to keepe his personage, shall haue a spoliation in Court Christian against another Incumbent pre∣sented by the patron, and then shall come in debate whether they haue pluralitie or dispensation, or no.

And this Indicauit lyeth though it bee * 1.21 but the right of the twentieth or thirtieth part of tythes that is in demaund, for at the

Common Law the Court Christian had no power to hold plea of any part of dismes, but a prohibition lay till the Statute of Westm. 2. cap. 5. which will haue an Indi∣cauit to be of tythes to the value of the fourth part of the Church at the least. But before that, it might haue beene of the xx. part, and the patron thereupon might had a writ of right, wherupon at the Common law there was a writ of the auowson of the tythes of v. acres or x. acres, or one acre. But now since by the same Statute an Indicauit shall not be granted of lesse then the fourth part, therefore there is a writ of the auow∣son of the tythes of the fourth or third part. But at the Common Law there was no such writ.

Notes

• * 1.1

  F. N. B. 71. c. Fit. ibid.
• * 1.2

  Fit. ib. 72 g. Fi. ib. 72. c & 71. ••
• * 1.3

  Fit. ib. 71. b. Fit. ib. 71. i.
• * 1.4

  Fit. ib. 71. e. Fit. ib. 71. f.
• * 1.5

  Fit. ib▪ 72. d.
• * 1.6

  Fit. ib. 73. e.
• * 1.7

  Fit. N. B. 4. ••.
• * 1.8

  7. E. 6. Pl. 85.
• * 1.9

  F. N. Br. 181. ••
• * 1.10

  Fit. ibid. d.
• * 1.11

  F. N. B. 77. c. 2. El. Dy. 173.
• (a) 1.12

  1. E. 4. 9.
• * 1.13

  2. El ib.
• (b) 1.14

  2. El. ib.
• * 1.15

  F. N B. 163. d. Old N. B. 30. Old N. B. 28.
• (a) 1.16

  Old N. B 30.
• (b) 1.17

  22. E. 4▪ cons. 2
• * 1.18

  19. H. 6 Old N. B. 31. F. N B. Ph.
• * 1.19

  12. E. 4. 13.
• * 1.20

  Fit. N. B. 36.
• * 1.21

  38. H. 6. 20.