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. 6.

Of a writ of right of ward, and a Writ of right Sur dis∣claimer.

OTher reall praecipe quod reddats, are those which are in respect of a seigniorie, as a writ of right of ward, and a writ of right sur dis∣claimer.

A writ of right of ward, is to recouer the wardship. If of the bodie, it lyeth both for gardein in soccage, and by Knight ser∣uice: * 1.1 If of the land, it lyeth onely for gar∣dein by Knight seruice.

Statutes.

Marleb. cap. 7 In a writ De communi custodia, if the deforcer come not at the grand distresse, the same Writ shall be reit∣terated, as oft as well it may bee within halfe a yeare following, and euerie time

the Writ read, and Proclamation made in the Countie Court, if he come not to an∣swer, nor the Sherife find him within halfe a year, he shall lose the custodie. Sauing his action another time, if he haue right.

Westm. 2. cap. 35. In a Writ of ward of land, or heire, or both, either of the parties dying before the plea determined, a reso∣mons shall bee. And in the grand distresse day must be giuen that three Countie daies may be holden before the returne, in euerie of which Proclamation shall bee made, whereupon the defendant not appearing, Iudgement shall be giuen for the Plaintife. Sauing the right of the defendant, if after∣wards he will claime it. So shall it be done in a writ of eiectment of gard.

A writ of Right Sur disclaimer is for the Lord to proue the Lands to be holden of him, when in an action where the seruices should bee recouered, As in an auowrie made vpon the Tenant for them: for there * 1.2 he shall recouer the seruices inclusiue, inas∣much as he is to haue a returne in an Assise * 1.3 or praecipe quod reddat of rent (for there the seruices are expresly demanded) but not in a per quae seruitia (for there no seruices but an Atturnement onely is demanded) nor in a * 1.4 Iustification, in a repleuin, or an auowrie in an action of Trespasse (for there the de∣fendant shall neuer haue a returne, nor re∣couer his seruises expresly nor includedly, the Tenant in Court of record, viz. in * 1.5

the Common place, but not in Court Ba∣ron or Countie Court. For there if the Lord make auowrie vpon the Tenant, and hee disclaime to hold of him, the Lord shal be amerced, disclaimeth to hold of him.

And if in this writ of right sur disclai∣mer, * 1.6 he can proue the land to bee holden of him, he shall recouer the land it selfe for e∣uer: because the disclaimer is of record. * 1.7 Therefore by such a disclaimer, he is barred of all possessorie actions for the seruices, as an Assise, Cessauit, rauishment of ward, and such like: but not of a Writ of Eschete, Right of ward, right of customes, and serui∣ces, &c. And though the Lords distresse & * 1.8 auowrie were lawfull, yet the Tenant so disclaiming, shall recouer dammages of him, for the disclaimer giueth the Lord a better aduantage, viz. the Land it selfe.

Statutes.

Westm. 2. cap. 2. If the Tenant disclaime in Countie Court, or other Court not of Record, the Lord may remoue the plea be∣fore the Iustices to cause it to be of Record. So as he may haue a Writ of right sur dis∣claimer.

Glocest. cap. 4. •• Explanat. cap. 4. when land is giuen in feefarme, rendring or do∣ing so much as amounteth to the fourth part of the value of the Land, if he (whose land is charged) let it lye fresh by two yeares, so as no distresse can be found in it,

nor render, or do that which is contained in the writing, the other shall recouer the land by a Cessauit. But the donee comming before Iudgement, if he render the arrera∣ges and damages, and find sufficient to do from thenceforth, that which is contained in the writing, shall tetaine his land.

Westm̄ 2. cap. 21. If a man detaine from any Lord his seruice due by two yeares, the Lord shall recouer the land by a Cessauit. This lyeth also for the heire of the Lord a∣gainst his Tenant, his heires, or those to whom he alieneth the land.

Westm̄. 2. cap. 41. So if religious houses that haue land giuen them, &c. withdraw the almes, &c. by two yeares, the donor shall haue the like action.

Notes

• * 1.1

  Fitz. Na. Br. 139.
• * 1.2

  13. H. 7. 27.
• * 1.3

  ibid.
• * 1.4

  5. E 4. 2. 13. H. 7. 27. 15. E. 4. 29.
• * 1.5

  Old Nat. Br. 162.
• * 1.6

  Ibid.
• * 1.7

  16. H. v. 1. 34. E. 3. Dis••. 24.
• * 1.8

  16. H. 7. 1.