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.

Westm̄ 1. cap 37. An attaint is giuen in pleas of land or of freehold, or of things that touch freehold.

1. E. 3. cap. 8. In writs of trespasse as well vpon the principall as the damages, though Execution be not sued of them.

28. E. 3. cap 8. And that as well by bill as by writ, without regarding the quantitie of the damages.

34. E. 3. cap. 7. An attaint is giuen in eue∣rie plea, reall as well as personall.

9. Ric. 2. cap. 3. Giuen to him in the re∣uersion lyuing his Tenant for terme of life vpon a recouerie against him, with restitu∣tion of the Tenant that lost his possession, with the mesne issues. And of him in the reuersion to the arrerages of his rent. But if the Tenant that lost be either dead, or were of couin with him that recouered, then re∣stitution shall be to him in the reuersion of

the possession it selfe, with the mesne, is∣sues and arrerages, after such death and re∣couerie by couin.

14▪ E. 2. Of Sherifes and greene waxe, if the pety Iurie appeare not at the first grand distresse against them, or a Nihil be retur∣ned the grand Iurie shall be taken by their default.

23. H. 8. cap. 3. made perpetuall 13. Eliz. cap. 9. In a suite before Iustices of Record not concerning life, an attaint is giuen a∣gainst the petie Iurie, and euery of them, and the partie himselfe.

The processe against the petie Iurie and fraud Iurie, shall bee sommons and resom∣mons, and distresse infinite.

Open proclamation shall be made in the Court where the distresse is awarded more then xv. dayes before the returne of the di∣stresse.

The graund shall be taken in default of the defendant, or petie Iurors, or any of them.

The petie Iurie that appeare beeing the same persons, and the writ, processe, returne, assignment of the false oath good, shall haue no answer, but that hee made a true oath, except the plaintife or demaundant hath beene non suite, or discontinued, or had iudgement against the petie Iurie vpon his suite of attaint. But the partie himselfe shal plead any thing onely in barre of the at∣taint.

Notwithstanding which plea, the grand Iurie shall without delay enquire of the truth of the verdict. Such a day shall be giuen in the processe as in a Writ of dower, and no essoyne or protection allow∣able.

By the death of the partie, or one of the petie Iurie, the attaint shall not abate, nor be deferred against the rest as long as two of the petie Iurie shall liue.

Euery attaint shall not bee in the Kings Bench, or Common place, and the Nisi prius granted vpon the distresse by the discretion of the Iustices. And euery of the petie Iurie may be by Atturny. The non suit or release of one when there be diuerse Plaintifes or demaundants in an attaint shall not preiu∣dice the rest.

Euery one of the grand Iurie must haue xx. markes a yeare land of freehold, out of auntient demesne. But if the value of the thing in suite bee vnder the value of fortie pounds, then v. marks a yeare, or a C. marks worth of goods sufficeth for default of such sufficient Iurors, within the same Countie, a Tales shall be awarded vnto the next.

11. H 6. cap 4. The Plaintife shall reco∣uer costs and damages against the Iuror or defendant that pleads a fained plea in de∣lay. Audita querela is for one being or to be in execution to relieue him vpon good mat∣ter of discharge which hee hath no meanes

to plead. As if one hauing a release be taken * 1.1 in execution in one Court, as in the Com∣mon place, by writ out of another (as out of the Chancerie) returnable in the Com∣mon place, vpon a Recognisance, or con∣demnation in the Chancerie. (But if the Recognisance or condemnation had beene in the Common place, then they might haue awarded processe vpon that matter) If execution be sued of a Recognisance by Fieri facias or elegit: (but not by Scire facias, * 1.2 for there he hath day to answer, therefore it is his solly if he come not in and plead it, that is to say, where the Sherife returneth him warned: otherwise it is vpon a Nihil re∣turned) if a release or acquittance be made vnto him after the Scire facias sued, if after verdict and before iudgement they haue put themselues into abitrement.

The processe where the Audita quertla is sued, before execution is a venire facias and * 1.3 distresse, and vpon default after appearance and plea pleaded, a distringas ad audiendum Iudicium, for thereby Iudgement is to bee giuen against him. And in this case of an Audita querela sued before execution, he may haue a Supersedeas vpon good matter of discharge surmised in the writ of Audita querela, to stay for once the execution vpon sureties, so (a) 1.4 can he not beeing in execu∣tion. Neither (b) 1.5 can he haue a Supersedeas before execution oftner then once, though (c) 1.6 it bee vpon new matter. But if the

(d) 1.7 Audita querela bee abated for variance from the Record, or such like, there in a∣nother Audita querela he may haue a se∣cond Supersedeas.

After execution the processe is a Scire facias, as if he be brought in by a Capias ad * 1.8 satisfaciendum, for there hee is in prison, o∣therwise it is if he be not taken by a capias, but come in gratis. And this scire facias is onely for the more hasty expedition of the partie that is in prison, for if the processe should be by distresse infinite, peraduenture the partie would lose issues, to keepe the o∣thers body in perpetuall prison.

Notes

• * 1.1

  22. H. 8. 56.
• * 1.2

  48. E. 3. 20.
• * 1.3

  12. H 4 6. 15. Br. Audit. quaerela. 15. 22. H. 6. 56. 12. H. 4. ibid. 47. E. 3. 1. 17▪ E. 3. 3. 28. E. 3. {pro} Old N. B. 66.
• (a) 1.4

  11. R. 2. Super∣sed. 14.
• (b) 1.5

  2▪ H. 7. 12. 21. H. 6. 34.
• (c) 1.6

  43 E. 3 ••8. F. N. B. 104. q. cont.
• (d) 1.7

  F. N B. 204. q.
• * 1.8

  22 H. 6. 56. 15. E. 4. 5.