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Of Iudgements.
THus farre of Suit. Iudgement * 1.1 is the Courts finall determination of that suit.
Vpon Iudgement against the King in a petition, hee is presently out of possession. And therfore euery Iudge∣ment is in it selfe a moueas manu, or an ouster lemaine In a writ of right the Iudgement after issue ioyned is finall on either side,
not onely when it passeth by verdict, or vanquishing of the others Champion, but where the demandant is (c) 1.2 non suit, or the (d) 1.3 Tenant maketh default, or the (e) 1.4 vou∣chee after such an issue ioyned by him, de∣parteth in despite of the Court, &c.
Against the King Iudgement is not fi∣nall, but is alwayes with a Saluo iure Regis.
Recoueries in a writ of right bind all * 1.5 strangers not claiming within the yeare. As being suffered by a disseisor, it bindeth the disseisee by his non clayme. Tenant for life suffering a wrongfull recouerie, it shall preiudice his right that hath the inheri∣tance, though he be prayed in aid and make * 1.6 default. for no aide prayer is there necessa∣rie, in as much as the other being tenant of the freehold, a recouerie is good against him But that after the death of Tenant * 1.7 for life, hee may falsifie it by action of Ad terminum qui preterijt, or writ of right which we call falsifying of recoueries. But he can∣not enter, (a) 1.8 neither can lessee for yeares at the Common Law falsifie for hauing but a Chattell deriued out of a freehold, there is no reason hee should falsifie a recouerie which draweth the fee simple out of the lessor. Also the present estate vpon which the lease depends being destroyed, the lease must needs be extinct.
14. Eliz. cap. 8. Euerie fraudulent reco∣uerie against any Tenant for life, or where∣upon any tenant for life, or hee that hath right to estate for life is vouched, shall bee void against him in the reuersion, or in the remainder, vnlesse it be by his owne assent appearing by record.
21. H. 8. cap 15. Termors for yeares or in by execution of Statute staple, Statute Mar∣chant, or Elegit, may falsifie recoueries one∣ly for their owne Terme in such sort as Te∣nants of the freehold, neither partie nor pri∣nie to the recouerie might at the Common Law.
In a Writ of dower by gardein in soc∣cage * 1.9 against gardein by Knight seruice, she shall at his prayer bee adiudged to endow her selfe wholly of the land in soccage. And this is called Dower de la plus beale. But such dower shall not bee where the woman is * 1.10 gardein en fait by knight seruice, nor where all the husbands lands were holden in soc∣cage, and shee brings her writ of dower a∣gainst the heire: nor where she brings it a∣gainst her husbands feoffee with warranty, for he may vouch the heire.
A debt acknowledged in Court of Re∣cord either to the King or to a Common, is in the nature of a Iudgement, and called a
Recognisance. And therefore such a matter acknowledged by an infant, cannot bee a∣uoided but during his nonage onely. As a (a) 1.11 fine by writ of error, a (b) 1.12 Recognisance, Statute, or such like, by an Audita quaerela: for it shall be tried by inspection of the Court, whether hee were within age, or no.
In appeales of (c) 1.13 mayme, enditements or appeales of (d) 1.14 felonie, the accessorie shal not be compelled to answer till attainder of (e) 1.15 all the principals, by verdict, outlawrie, or though it be by taking him to his Cler∣gie, or abiuration So as if the principall die (f) 1.16 or haue his (g) 1.17 pardon before, or if two men be endited, one as principall, the other * 1.18 as accessarie, and the principall bee after∣wards attainted of another felonie and hanged: the accessarie shall be discharged And (i) 1.19 if one of the principals bee not at∣tainted, the Accessarie shall not recouer da∣mages against the A bettor, for he is not le∣gitimo modo acquietatus. But in case of high Treason all offendors are accounted prin∣cipals, and there is no accessarie at all.
He that is or by possibilitie may be with in orders, for one being within orders (if * 1.20 he shew them, or the ordenarie certifie so much) shall haue his Clergie, whether he can reade or no. Otherwise he must be able to reade a verse, namely, a Deacon at the least, may haue the benefit of his Clergie, saue him either from Iudgement when the Clergie is prayed before, or from execution
if it be prayed after, if he be found culpable by verdict, or his owne (k) 1.21 confession either before the Coroner, or the Iustices of any barre, felony, where life or member is to be lost, be it vpon an enditement or appeale, but (l) 1.22 not for killing a man by misfortune, or se defendendo, nor yet for petie Larceny, for in these cases he is not to haue Iudge∣ment of life or member. No more in case of high Treason, or petie Treason. And such a (m) 1.23 Clarke might indeed by the antient Law haue had his Clergie before hee were endited But now he shall not haue it vpon his arraignment, vnlesse he plead to the fe∣••onie and be found guiltie: for otherwise he should lose his goods by an enquest of of∣fice, to which he could haue no challenge ••s he may haue to this. But yet hee may waiue this benefit and pray his booke after ••he enquest, and before their comming ••acke. In which case notwithstanding, the ••erdict afterwards shall be taken And that ••s in fauorem vitae: because if the Iurie find ••im not guiltie, he shall be charged. And his possibilitie (there beeing no other im∣••ediment) as if it be a woman, a blind, or a ••aymed man, shal be tried by the Iudges. And therefore if the ordenarie challenge ••im, where he readeth not as a Clarke, he ••hall be fined and the partie hanged. Or if ••ee refuse him when hee doth reade as a * 1.24 Clarke, the ordenarie shal be fined, and the ••artie discharged, for the Court are Iudges ••f his reading. And the ordenarie is there
onely to challenge him for his Clergie, for the entrie is, Legit vt Clericus ideo tra••tat•••• * 1.25 ordinario, by his ablenesse to reade a verk, though he cannot reade without spelling. But if he can reade but here a word & there a word, and no three words together, quert whether that be sufficient.
Clergie is the deliuering of him to the ordenarie to be kept in prison.
If it bee before Iudgement, in which case we call him a Clarke conuict, hee shall * 1.26 be tried there by a Iurie of Clarkes. A•••• therefore purging himselfe shall goe •••• large. Therefore is a writ to command the * 1.27 ordinarie to admit him to his purgation. Not purging himselfe, but beeing found culpable by those Clarkes, he shall be onely degraded.
But vpon an appeale of Robberie, or such like, no purgation shall bee admitted. * 1.28 The reason seemeth because then the plain∣tife in the appeale should recouer his goods without cause, when by the purgation it did appeare that the other was not guilty of the felonie.
A Clarke conuict shall not answer to a∣ny * 1.29 offence committed before.
partie make purgation. If the Clergie be after Iudgement, in which case wee call * 1.32 him a Clarke attaint, hee shall remaine in perpetuall prison.
25. H. 8 cap. 3. Reuiued. 5. E. 6 cap. 10. One arraigned vpon an enditement of pety Treason, wilfull burning of houses, mur∣der, robberie, or other felonie, according to the meaning of the same Statute, if he stand mute of malice, or froward of mind, or chal∣lenge peremptorily aboue xx. or will not di∣rectly answer, shall lose his Clergie, in such manner as hee should if vpon the arraign∣ment he had beene found guiltie.
25. E. 3. pro clero, cap. 4. Conuict of pety Treason shall haue it.
18. Eliz. cap. 6. None in felonious Rape, Rauishment, nor Burglarie.
18. Eliz. cap. 6. None in carnall abusing a woman within ten yeares of age.
25. H. 8. cap. 6. 5. Eliz. cap. 17. None in Buggerie.
5. E. 6. cap. 9. None for him that robbeth any person in any part of his dwelling house, booth, or Tent, in any Faire or Mar∣ket, himselfe, his wife, children, or seruants then beeing there, or within the precinct thereof, either sleeping or awake.
4. & 5. Ph. & Ma. cap. 4. None for him that maliciously commandeth or hireth a∣ny to commit petie Treason, or wilful mur∣der, or robberie, in any dwelling house, or in or neere any high way, or within the mar∣ches of England against Scotland; or wil∣fully to burne any dwelling house, or any part thereof, or any Barne hauing corne therein.
25. H 8. cap. 3. & 5. E. 6. cap. 10. He that doth a robberie or burglarie in one Coun∣tie, and is taken with the goods so robbed or stolne, in another Countie, shall lose his Clergie there, as he should doe where the robberie or burglarie was committed.
4. H. 7. cap. 13. 1. E. 6 cap 12. Grantable but once to one person, except he be within orders.
4. H. 7. cap. 13. He that asketh his Clergy the second time shall at a day certaine bring his letters of order, or a certificate.
4 H. 7. cap. 13. He that hath his Clergie shall be marked in the hand, with an M. if he were conuict of murder, with a T. if he were conuict of other felonie.
1 E. 6. cap. 12. Lords of the Parliament in all cases where Clergie lyeth at the com∣mon Law, or is restrained by Statute, shall vpon his prayer bee adiudged as a Clarke conuict, though he cannot reade.
8. Eliz. ca. 4. & 18. Eliz. ca 7. After purga∣tion he shall be put to answer to any such offence (committed before his admission to the Clergie) whereupon Clergie is not al∣lowable, and whereof hee was not before endited and acquited, conuicted or attain∣ted, or pardoned, and shall be demeaned in all things, as if he had neuer beene admit∣ted to his Clergie.
18. Eliz. cap 7. He that is allowed Cler∣gie shall not be deliuered to the ordenarie, but after burning in the hand shall be de∣liuered forthwith by the Iustices out of pri∣son: yet for further correction, they may detaine him in prison, so that it be not a boue a yeare.
Outlawry is a Iudgement, which in case of criminall offences wee call an At∣tainder in it selfe. So as hee which is endi∣ted of trespasse and outlawed shall pay a fine, he which is outlawed for felonie, for∣feiteth his lands and goods: and this fine and forfeiture remaineth, though hee pur∣chase a Charter of pardon afterwards. And there is a writ of Eschete of land for felony, pro qua vt lagatus fuit.
So is abiucation an Attainder in it self (and (a) 1.33 that the strongest that can be be∣ing by his owne confession) and a (b) 1.34 for∣feiture of his lands. And there is a writ of Eschete of land for felonie, pro qua abiura∣nit regnum. And therefore (c) 1.35 he that is han∣ged vpon Iudgement against him, and be∣commeth aliue againe, cannot abiure (but
an abiuration in that case is in escape) for one cannot haue two Iudgements for one offence.
The offendor vpon a presentment in the Leet or sherifes turne shall be amerced. * 1.36
The defend ant in an appeale of felony, being acquited shall haue Iudgement also to recouer damages against the Plaintife. * 1.37 And if the plaintife be not sufficient, then Common Law and common reason will that hee recouer his damages against those that procured or abetted the plaintife to pursue the appeale. But these damages a∣gainst the procurers or abettors were to be recouered at the Common Law onely, by writ originall, that is to say, by writ of con∣spiracie, and not otherwise.
Westm̄ 2. cap. 12. One being acquited vpon an appeale, or enditement of felonie, may haue the abettors enquired, and haue a Iudiciall writ for his damages against, if the appellant be not sufficient.
8. H. 6. cap. 10. An action vpon the case giuen for him that is duely acquit by ver∣dict against euery procurer of any Iudge∣ment, or appeale of Treason, felony, or tres∣passe. And like processe shall be therein, as in a writ of trespasse, vi & armis.
The plaintife recouering shall be allow∣ed his costs of suit.
10. El. Dy. 26. 8. The writ of false Iudgement shall be Recordare fac. lo∣quelā quae fuit in ea∣dem curta and not quae est, for by the iudgement loquela is determined. 10. E. 3. Stam. praer. 78.
F. N. B. 6. 3. Eli Dy. 301.
F. N B. 6.
26. H. 8. 8. F. N. B. 31. d.
5. E. 3. 50.
34. H. 6. 2. 4. H. 7. 3.
24 H. 8. Br. fau. reco. 41.
26. H. 8. 2.
Lit. 9.
Park. 88.
18. E. 4. 13.
7. El. Dy. 232. 18. E, 3. 5.
41. E. 3. tres. 199
40. E. 3. 42.
1. Mar. Pl. 99. 3. H. 7. 12. 4. E. 6. Br Cor. 185
21. H. 7. 31.
3 H. 7. 12.
(h) 12. E. 3. Cor. 378.
3. Mar. Dy. 120
Stam. 133.
Stam. 138. d.
Stam. 124.
Stam. 130. ••.
Stam. 123. d. 9. E. 4. 28.
9. E 4. 28.
Stam. 138. 6.
Stam. 138.
Stam. 139. b.
Stam. 108.
5. E. 6. Br fors. 113
Stam. 138.
Stam. 138. ••.
Stam. 122. c.
4. Eli. Pl. 262.
3. E. 3. Cor. 33••
2. H. 4. 24. 8. R 2. auowry 194
Stam. 167. c. Stam. ibid.