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. 48.

Of certaine speciall writs wherein no Processe lyeth.

THus farre of an Action, and the se∣uerall parts of it. And of writs both Originall and Iudiciall, that begin or prosecute the action. Be∣side which, there be certaine other originals out of the Chancerie, which are as it were speciall anomalies and excepti∣ons from the former. Being not diductory to bring any matter into plea or solemne action, but onely Commandatorie or Pro∣hibitorie to do or leaue something vndone. And therefore no Processe at all lyeth in

these writs, but onely an (a) 1.1 Attachment vpon a contempt, for not executing or o∣beying them.

Of which nature are,

1. Commandatorie ones, these that fol∣low. * 1.2 Dote assignanda, is for the wife of the Kings Tenant, when the King is entitu∣led by office of land, whereof she is dowa∣ble, alwayes directed to the Eschetor. And may bee either to deliuer her such part of * 1.3 her land as is alreadie assigned to her in the Chancerie for her dower, or for the Es∣chetor himselfe to assigne her part vnto her.

If her husband held in chiefe, then she * 1.4 must first take an oath in the Chancerie, not to marrie without the Kings licence, before she can haue this writ. But if he held of the King by Knight seruice, as of a man∣nor, or if hee held from one that is in ward * 1.5 to the King by reason of his nonage, there she shall not need to take any such oath.

Homagio capiendo for tenant by homage auncestrell to compell the Lord to receiue * 1.6 his homage, and is to saue his warrantie and acquitaile, which he loseth if he be im∣pleaded before the Lord haue receiued his homage.

Scutagio habendo for the Lord to haue es∣cuage of his Tenants by Knights seruice, * 1.7 when the same is due, by reason of any voyage royall made by the King in proper person, or by his Lieutenants against the Scots, or them of Wales.

And to make his sonne a Knight, or to * 1.8 marrie his daughter, for the Lord to haue this aide of his Tenants, where it is due.

De corrodio habendo, & de Annua pensione, for the King. The (a) 1.9 first to haue a coro∣die for his seruant, the (b) 1.10 other to haue a pencion granted to his Chaplein, (c) 1.11 till he be promoted to a benefice. Both (d) 1.12 these where the same are due. As (e) 1.13 of common right a Corodie is due from euery Abbey, Priory, or other house of Religion, whereof the King is founder in the right of his Crowne. A (f) 1.14 pension from euery Bishop∣pricke in England or Wales.

De libertatibus allocandis, for one whether a singuler person, Burgis, Citizen, or other, or a body corporate, empleaded before the Kings Iustices of the one Bench or other, Iustices errants, Iustices of the forest, &c. to haue the liberties granted them by the King, or his progenitors, to bee allowed where the Iustices wil not make allowance of them And therefore is to be directed to the Iustices themselues, not to the sherife, for he is but their officer, and subiect to be amerced by them, if he do not his office as he should.

De executione Iudicij, to haue a Iudge∣ment executed, whether the same were gi∣uen * 1.15 in a Court Baron, viz. the Court of the Lord, Hundred, or Countie Court, by writ of right Iusticies, or plaint without writ, or in Court of Record. The same to be dire∣cted

to the sherife, if iudgement were giuen before the Baylife in the Hundred or Lords Court, to the Coroners if it bee before the Sherife in the Countie Court, to the Iusti∣ces themselues if it be in a Court of record. And this writ is a Iusticies.

De restitutione temporalium, where the temporaltie•• before seised into the Kings * 1.16 hands, are to be restored to a Pryor or Bi∣shop elect and consecrate. And this must be directed to the Eschetor.

De securitate pacis, for him that is in feare of corporall hurt, to be killed, beaten, assaul∣ted, * 1.17 &c. or of the burning of his houses, to be secured of peace in that behalfe, against the partie whom he feared And may be for either of these causes alone, or for both ioyntly in one writ, where a corporall oath must bee taken by him that standeth so in feare. And that was wont to bee in the Chancerie before some Master of the Chan∣cerie, by the auntient course of Law. But now they vse to purchase such writs by their friends there without taking of an oath, which maketh them to be sued forth many times more for the vexation of the parties then vpon any iust cause. The com∣mon forme of this writ since the Statute 1. E▪ 3. cap. 16. which appointeth Iustices of peace, is for the ease of the people some∣what altered, and it is called a supplicauit, di∣rected sometimes to the Iustices of peace, and to the Sherife, sometimes to the Iustices or one Iustice sole, and sometimes to the

sherife onely to compell the partie to find sufficient mainperors in a reasonable sum of money, that he shall neither do nor pro∣cure any bodily hurt, or burning of the par∣ties houses; or vpon refusall, to commit him to the gaole till he doe.

De vi Laica remouenda, to remoue alllay force in any Church, especially where de∣bate * 1.18 is betweene two persons of a Church of prebends about the title, and one with force and armes holdeth the other out: and (a) 1.19 this writ may be as well vpon the bare surmise of the Incumbent or partie grieued, without any Certificate made by the Bi∣shop into the Chancerie, of such force as vpon and by reason of such Certificat. And there bee two seuerall formes of writ in these two cases, but hereby the sherife may not remoue the Incumbent out of possessi∣on of the Church, whether he be in by right or wrong, for then he may haue a writ to restore him againe, but onely remoue the force: and this writ is returnable or not re∣turnable at the parties pleasure that doth sue the same, and may be returnable in the Common place, as well as in the Kings Bench.

Of clensing streets to haue the wayes, streets or lands of a Towne Corporate, * 1.20 of the Suburbs of it, to be made cleane, and so kept, when they be stencht, by dung and filth, hogsties, and such like, whereby the ayre is corrupted and infected, to the indan∣gering of the health, or other great discom∣moditie

to the Inhabitants or Trauellers that way. But it seemeth that no such writ lyeth for the Village in that Countrey, though they be not kept cleane, but for cor∣porate Townes onely.

De Leproso amouendo, to remoue a Leper * 1.21 or Lazer, that will come abroad to Church among his neighbours from the companie of men to some solitarie place of dwelling. And that is for feare of infecting of them: but if hee will keepe in his house, and not come among his neighbours, then it see∣meth he shall not bee remoued thence, nor that any Lepers or Lazars shal be remoued by this writ, but onely such as appeare to be so by their speech, vlcers, rottennesse of flesh, stinke, and such like, and not those that though they be infected inwardly, yet appeare not so without.

De excommunicato capiendo, vpon a signifi∣cauit, * 1.22 so we call the ordinaries Certificate into the Chancerie, that one excommuni∣cate standeth out fortie dayes, and will not be iustified by the sensures of the Church to imprison, and so to iustifie him by his bo∣die, till he satisfie holy Church for his con∣tumacie and contempt, and this writ also is a Iusticies.

De excommunicato deliberando to deliuer * 1.23 him out of prison when the Church is sa∣tisfied, and hath absolued him.

De cautione admittenda, when one taken by an Excommunicata capiendo offereth suf∣ficient * 1.24 pledge or caution to obey holy

Church, which is refuled to haue that cau∣tion admitted and to be deliuered: and may be either to the (a) 1.25 ordenarie himselfe to command him to bee deliuered, which the ordinarie may doe by word, or to (b) 1.26 the Sherife to make such deliuerance, and then it is withall, a de excommunicato delibe∣rando.

De heretico conburendo, to cause one con∣uicted for an Hereticke to bee burnt. And * 1.27 this as the other writs to bee directed to the Sherife, the partie being committed by the Clergie into the secular power. But by the Statute 2 H 4. cap. 15. Euery Bishop in his Diocesse may conuict a man of heresie, and cause him to abiure, and after conuict him anew, and condemne him to the fire, and thereupon make a precept to the Sherife to take and cause him to bee burnt, and the same a sufficient warrant to the Sherife without any writ of the King: but that Sta∣tute is repealed by 25. H 8 ca. 14. So as now the ordinary cannot commit him to the lay people to be burnt without the Kings writ first purchased.

De coronatore exonerando, to discharge a Coroner of his office vpon iust cause. As if * 1.28 he cannot extend his office for other busi∣nesses of the Kings that hee is imployed a∣bout in the same Countie, or bee old and feeble, or vnfit for the office, and haue not lands and tenements sufficient in the coun∣tie whereupon he may dwell according to his state, or haue the Palsey, or dwell in the

remote parts of the shire, so as hee cannot conueniently exercise the office, or such like.

And this writ is directed to the Coro∣ner * 1.29 himselfe.

De exonerando viridario forest••, to dis∣charge a verder of the forest in like sort.

De coronatore eligendo, to chuse a Coro∣ner, two or three if there be need of so ma∣ny, * 1.30 in full Countie, by the freeholders of the Countie. And this is commonly vpon the death or discharge of some of the Co∣roners, when it is vpon the discharge, then this writ renteth the cause of their dis∣charge.

De electione viridariorum forestae, to chuse * 1.31 a verdor of the forest in like sort. Conge deslier, to Deane and Chapter, or such like to chuse their Bishop.

Statutes.

25. H. 8. cap. 20. For the election, nomina∣tion, presentation, inuesting, and consecra∣ting of Archbishops and Bishops.

A writ for the royall assent to signifie to the ordenarie his assent to the election of an Abbot, &c. & to will him to execute that which belongeth to him, therefore this is al∣wayes to the ordenarie himselfe.

Desecuritate inuenienda qd se non diuertat ad partes extera sine licentia Regis, to compell one to find sufficient mainpernours in a reasonable summe of money, not to go into

forreine parts out of the Realme, without the Kings licence, nor any thing there at∣tempt in contempt or preiudice of the king, or hurt of the people, nor send any thither for any such cause. And as a Supplicauit may be directed to the Iustices of peace, or she∣rife, or both. And euery one vpon surmise to the Chancellour may sue this writ for the King: for by the Common Law euery one that will may goe out of the Realme for merchandize, trauaile, or other cause at his pleasure without the Kings licence. But the king may restraine any subiect by this writ, or by his priuie seale, or signet, or by pro∣clamation without writ, or other comman∣dement, because euery man is bound of common right to defend the King and his Realme.

5. Ric. 2. cap. 2. None shall go out of the Realme without the Kings leaue vpon pain of forfeiture of his goods, except the Lords and other great men of the Realme, known Merchants and the Kings souldiers.

Statutes repealed. 4 Iac. cap. 1.

All dedimus potestatems. The principall of them are these.

Dedimus potestatem, to giue the Kings royall assent to the election of an Abbot, or * 1.32 such like, made or to be made, and to signi∣fie so much by his letters to the ordenarie, that he may doe that which belongeth to him, and to receiue fealty, &c. commanding the partie to do the premisses. And there∣fore is directed to the partie himselfe that

must do these things.

Dedimus potestatem de fine leuando, to cer∣taine * 1.33 persons to take the acknowledge∣ment of a fine out of Court, when one that hath agreed in the Kings Court to leuie a fine, is so feeble that he cannot trauaile, for euery such dedimus potestatem supposeth a writ of couenant, or such like, hanging. * 1.34 And they to whom this Writ is directed, must go in proper person to the parties to take the conisance, which being certified to the Kings Iustices of the Common place, the fine shall be engrossed. The chiefe Iu∣stice of the Common place may take the ac∣knowledgement of a fine without any de∣dimus * 1.35 potestatem, so can no other Iudge, de rigore Iuris. But a Iustice of assise by a gene∣rall patent with a clause of non obstante may

Statutes.

Stat. Carlife. 15. E. 2. The dedimus pote∣statem shall be directed to two of the Iusti∣ces, or one Iustice and a knight.

Prerogatiue.

Dedimus potestatem de Atturnato saciendo, for the Iudges to admit an Atturny for * 1.36 one in a suite, whether it be for the plain∣tife or desendant, demaundant or tenant, and in what action or suite soeuer the same be. This writ must be directed to the Iudges themselues, and groweth by the Kings pre∣rogatiue,

for at the Common Law the par∣ties must appeare in proper person, not by Atturny, although the Statutes gaue power afterwards to make Atturnies in diuerse cases; as appeareth before. But before those Statutes it seemeth that the King might grant to any man to make an Atturny in any suite. And one reason thereof was, be∣cause it is no error though the Iudge admit any plaintife or defendant to make an At∣turny, where by the Law he ought not.

Prohibitory ones are these that follow.

A protection cum clausula nolumus, to free ones possessions, land, rent, corne, cattell, * 1.37 carriage, &c. that nothing be taken against his wil for the Kings businesse, by his offi∣cers or ministers. This may be as well for a seculer as a spirituall person, and groweth by the Kings speciall fauour.

Persons or other spirituall persons not to be charged to the payment of fifteenes, * 1.38 for goods in their possession annexed to their Churches.

Quod clerici non eligantur in officium baliui, * 1.39 for a Clark, so is euery termed that is with∣in holy orders, not to be chosen an officer, as Bailife, Beadle, Reeue, &c. for his lands, and this writ reciteth that by the common Law they ought not, and commandeth that if any distresse or amerciament be leui∣ed, in this respect, it be restored.

A prohibition to forbid tenant in dower, or by curtesie of England, or gardein by * 1.40 Knight seruice, or in soccage, to commit

wast to the destruction of the inheritance. * 1.41 But this writ lieth not against lessee for life or yeares, for they come in by their owne lease: but in the other cases before the Law maketh their estate.

Statutes.

Glocest. cap 5. A man may haue a writ of wast out of the Chancery against tenant by curtesie or dower, or otherwise for terme of life or yeares, and being attaint of wast, hee shall forfeit the waste and treble da∣mages.

Westm̄ 2. cap. 14 The processe in a writ of wast shall be sommons, attachment, di∣stresse: and if he come not, then a writ vnto the sherife, taking with him xij. men to goe to the place wasted, and there enquire of the waste, and vpon that waste returned, iudgement shall be.

11. H 6. cap. 5. Where the tenant grants ouer his estate, but notwithstanding takes the profits, and commits wast, an action lies against him.

Mag chart̄. ca. 4. The gardein may not cōmit wast vpon pain to lose the wardship.

Cap. 5. And must repaire and susteyne the houses, of the profit of the land.

Glocest cap. 5. If the gardein commit wast, and the wardship lost answer not the value of the damages before the heires age, thē he shal render the damages to the heire.

Artic. super chart. cap. 18. Eschetor com∣mitting waste vpon wards lands, shall

answer damages as is ordained before by Statute against them that do wast in wards lands. So of a Subeschetor, and if he be not able his master shall answer for him.

36. E. 3. cap. 13. Stat. 1. If the Eschetor haue a ward to answer to the King of the issues, and commit waste, the heire shall haue an action of wast as well within age as of full age, and whilest he is within age, if he cannot, his next friends shall haue the suite for him.

14. E. 3. cap. 12. The heire when he com∣meth to full age shall haue an action of wast against the gardeins and fermours to whom the King shall let the land in ward according to that Statute.

Westm̄ 2. cap. 22. A writ of wast giuen for one Iointenant or Tenant in Common, against another, wherein the defendant to be at his choise to take his part in certaine (and then to haue for his part the place wa∣sted) or to agree from thenceforth to take nothing more then his Companions do.

Glocest cap 13. Hanging a plea by writ the Tenant may not commit wast, nor e∣strepment of the land in demaund, and if he do, the demaundant may haue a writ to cause the land to be kept that no wast nor estrepment be done.

A quo minus for grantee of estouers, as houseboote or heyboote, &c. to restraine * 1.42 the grantors from committing wast, so as he cannot haue his estouers.

De exoneratione sectae, for Tenants by suit

of Court, or other rent or seruices that * 1.43 they bee not distreined to doe the same for such time as they ought to hold the land discharged. As one which is in ward to the King, a woman indowed in the Chan∣cerie of lands so in ward, and the Tenants parauaile of such a ward, that is to say, where the other Lords of whom the heire holdeth do distreine, for during such time as the heire is in ward, either to the King or to his Committee, he is to doe no suite of Court or other seruices, and if any di∣stresse be taken, it is by this writ to bee re∣stored.

De deonerando pro rata, to discharge the * 1.44 tenant of parcell of the land, according to the rate of his land when hee is lawfully distreined for all the rent or seruices. As where a man which holdeth C. acres of land by the seruice of repairing a bridge, alien in fee xx. acres to one man, and xx. to another, and after vpon this presented one of the alienees, is onely distreined to make reparation, or where the Kings Tenant by fealtie and rent alieneth parcel of the land, and the kings officer distreineth the alienee for all the rent, for the King is not bound by the Statute of Quia emptores terrarum, which will that the feoffee shall hold pro particula, but that he may distreine for all the rent in the part of the alienee, but such a writ lyeth not where one that holdeth of a common person by fealtie and rent, alie∣neth part of his land, for there the Statute

it selfe restraineth the Lord that he cannot distreine the alience, but after the rate and value of the land which he hath purchased

De effend. quiet. de Theolonio to officers of Townes or other places not to grieue spi∣rituall * 1.45 persons, or other that ought to bee quit of paying of toll, murage, pannage, pontage, &c. whether by the kings grant or by prescription.

De non ponendo in Iuratis, to discharge * 1.46 Peeres of the Realme, or other persons priuiledged: as Clarks that are in the kings seruice, &c. from being of Iurie, vnlesse their presence be for any speciall cause ne∣cessarie. And this may be directed either to * 1.47 the Sherife not to put them into Iuries, or to the Iudges to discharge them. But if a Piere of the Realme be returned, hee must be sworne or lose issues, if hee appeare not, vnlesse he bring the writ.

Ne eueas regnum, to the party himselfe to inhibite him to go into forrein parts with∣out * 1.48 the Kings licence.

FINIS.

Notes

• (a) 1.1

  F. N. B. 6. b. 185 d. 134. a. Old N B. 15. 35.
• * 1.2

  F. N. B. 26 3. c.
• * 1.3

  F. N B. 263. d.
• * 1.4

  F. N Br. 263. c.
• * 1.5

  F. N. B. 264. a.
• * 1.6

  45. E. 3. 23.
• * 1.7

  F. N B. 83 c.
• * 1.8

  F. N. B. 82. a. c.
• (a) 1.9

  F. N. B. 230. a
• (b) 1.10

  F. N. B. 231. g.
• (c) 1.11

  F. N. B. 230 a
• (d) 1.12

  F. N. B. 230. a & 231. g.
• (e) 1.13

  F. N B. 230. a.
• (f) 1.14

  Fit ibid. F. N. B. 229. b.
• * 1.15

  Old N. B. 15.
• * 1.16

  F. N. B. 169.
• * 1.17

  F. N. B. 79.
• * 1.18

  Old N. B. 33.
• (a) 1.19

  F. N. B. 54.
• * 1.20

  F. N. B. 185. d.
• * 1.21

  F. N. B. 234.
• * 1.22

  Old N. B. 34 & 35
• * 1.23

  Old N. B. 35. a. F. N. B. 63. ••. f.
• * 1.24

  F. N▪ B. 63. c.
• (a) 1.25

  F. N. B. ibid
• (b) 1.26

  F. N. B. 63 d.
• * 1.27

  F. N. B. 269.
• * 1.28

  F N. B. 163. n.
• * 1.29

  F. N. B. ibid.
• * 1.30

  F. N. B. 163 k.
• * 1.31

  F. N. B. 164. ••.
• * 1.32

  F. N B. 170. ••b.
• * 1.33

  F. N. B. 146. g. Old N. B. 103.
• * 1.34

  F. N. B. ibid. 1. H 7. 9. Old N. Br. ibid.
• * 1.35

  1. H. 7. 9.
• * 1.36

  F. N. B. 25. ••.
• * 1.37

  Old. N B. 29. a. & b.
• * 1.38

  F. N. B. 176. a.
• * 1.39

  Old N. B. 175 b.
• * 1.40

  F. N. B. 55. e. 14 H. 8. 6. Shelly.
• * 1.41

  Tbe forme of the writ. F. N. B. 8. c. 14. H. 8. ibid.
• * 1.42

  Old N. B. 159.
• * 1.43

  F. N. B. 158.
• * 1.44

  F. N. Br. 2••5. k.
• * 1.45

  F. N. B. 226. i.
• * 1.46

  F. N. B. 165. a. d.
• * 1.47

  F. N. B. 165. ••.
• * 1.48

  F. N. B. 85. ••.