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.

The fourth booke of LAVV. (Book 4)

CHAP. 1.

Of Courts.

THus we haue gon through both the parts of Law; there remaineth yet one generall and common affection scatte∣red, throughout the whole Law, (as the bloud is through the bodie,) which we call an Action.

Action is the handling of a cause in con∣trouersie before certaine Iudges: who (in respect ot the place where they are set to doe Iustice) are commonly called a Court.

Statutes.

36. Ed. 3. cap. 15. All pleas which bee pleaded in any of the Kings Courts, before any of his Iustices, or in his other places, or before any of his other ministers, or in the Courts and places of any other Lords within the Realme shall be pleaded, shew∣ed and defended, answered, debated and iudged in the English tongue, & that they be entred and inrolled in Latine.

Of all apparent faults proceeding from the Action, As in false Latine (a) 1.1 or de∣fault of forme in the writ, insufficiencie in * 1.2 an office or Inditement, misawarding of Processe (as if of an exigent where no exi∣gent lieth:) impossibilitie in the plea, as in * 1.3 account, supposing him to bee his Receiuor for vij yeares, and the defendant pleads, ful∣ly accounted such a day, which is the first of those vij yeares; The Court must take notice. To abate the Writ, award a Super∣sedias vpon those offices, Inditements, or Processe, to stay Iudgement if the defen∣dants plea bee found against him, &c. though the partie except not to it. And * 1.4 therefore although hee that casteth an Es∣soyne cannot pleade in abatement in the Writ, by way of plea; yet if it be a matter apparent to the Court, (as Henricus, &c. Dux Hiberniae, where it should bee Dominus) he & euerie other stranger, as amicus curia,

may. And the Court is bound to abate it ex officio, though the Tenant or defendant make default.

Euerie Court hath power to award forth Precepts. And if the Precept bee * 1.5 not serued, another of the like nature shall goe forth till it bee serued. Therefore the second Processe is called a Sommons (or attachment, as the first Processe was) sicut alias; the third a Pluries, the fourth, and al the rest, Plus pluries.

To euerie Court doe belong both Clarkes and Officers.

A Clarke is hee that serueth for things to be done in Court, as entering the pleas, and such like.

Any error that appeareth to the Court to be the Clarkes (misprision) mistaking, may bee amended at any time. As a good originall Writ or precept ill entered in the * 1.6 Rolle. A Writ against A. and B. and the * 1.7 whole Processe continued against B. &C. not A. and B. a Scire facias out of a fine & * 1.8 parcell of the land omitted.

Statutes.

14. E. 3. cap. 6. No Processe shall be ad∣nulled or discontinued by the Clarkes mi∣staking in writing one syllable or one let∣ter too little, or too much, but shall spee∣dily be amended, without any aduantage to the other.

9. H. 5. cap 4. made perpetuall.

4. H. 6. cap. 3. The Iustices before such pleas or Records bee made, or shall bee de∣pending by adiournement, errors, or other∣wise, may make such amendment as well after iudgement as before.

4 H. 6. cap. 3. The former Statutes shall not extend to Records and Processe, where∣by any person shall be out-lawed.

8. H 6. cap. 12. No iudgement or Record shall be reuersed or adnulled for error, as∣signed in rasing or interlining, adding, sub∣stracting, or diminishing of words, letters, titles, or parcell of letters in any Record, Processe, or warrant of Atturney, originall Writ, or iudiciall Pannell, or retorne, though to the Iudges of the Courts where∣in the said Records and Processe be certify∣ed (by Writ of Error, or otherwise) the same appeare suspected. But the Kings Iudges of the Courts where the said Records and Processe be certifyed by Writ of Error, or otherwise, shal examine the same by them∣selues and their Clarkes, and amend there∣in (in affirmance of the first Iudgement) al that seemeth to them to bee the Clarkes misprision: Except Appeales, Inditements of Treason, and of Felonies, and the Out∣lawries of the same. And the substance of

the proper names, syr-names, and additi∣ons, left out in originall Writs of Exigend, and other Writs containing Proclamation. And if any Record, Processe, Writ, War∣rant of Atturney, Returne, or Pannell, to be certified defectiue, otherwise than accor∣ding to the writing which thereof remai∣neth in the Treasurie, Courts, or places from whence they be certified; the parties in affirmance of the Iudgements of such Records or Processe, shall haue aduantage to alledge variance betwixt the same Wri∣ting and the Certificate: which being found and certifyed, the same variance shall bee by the said Iudges amended, according to the first writing.

27. Eliz. cap. 7. After demurrers ioyned and entred, the same Court may amend all imperfections, defects, & wants of forme, other than those onely which the party de∣murring shall particularly expresse with his demurrer.

Officers are those which are to serue the Courts Precepts, and where the Pre∣cept so requireth, to certifie the Court thereof: which we call a returne.

So vpon a Writ to inquire of dammages, it is a good returne that the Inquest gaue * 1.9 no dammages. For he returneth what they did.

But vpon a Capias returned Cepi corpus, he * 1.10 shall be amerced if he haue it not there at

the day. For the Writ is, Capias ita quod corpus eius habere possis, &c. tali die, &c.

Statutes.

Westm̄ 2. Cap. 39. Dammages giuen against the Sherife if he returne not at all, or returne a tardie, vpon Writs deliuered or offered to be deliuered him by Billet. So vpon returning Mandaui Balliuo libertatis falsely: vpon resistance of any Great man to execute the Kings Precept, the Sherife shall take the Fosse Comitatus, and see it ser∣ued.

Stat. Ebora•• 12. E. 2. Ca. 5. Bailifes of Franchises must deliuer their returnes of the Writs to the Sherife by Indenture, and if he change the Returne, the Lord of the libertie, and the partie, shall recouer double dammages.

The Sherif, &c. must set his proper name to all returnes.

27. Eliz. C. 12. Euerie Vnder-Sherife, Bailife of Franchise, Deputie, or Clarke of the Sherife, &c. must take an oth for the supremacie, and for the true, speedie, and indifferent returning of Writs, and impa∣nelling of Iurors, without taking aboue the fees allowed.

29. Eliz. Cap. 4. Sherifes may take for the seruing of any extent or execution on∣ly

xij. đ. of and for euerie xx. s. where the summe exceedeth not C. l. and vj đ. of and for euerie xx s. beeing aboue an C. l. that they shall leuie, or extend and deliuer in execution, or take the bodie in execution for.

Courts are Courts of Record, or Court Barons. For against a recouerie pleaded * 1.11 in antient demesne, or other Court Baron; one shall not say, nul tiel Recorde, for it is no Record, but nul tiel recouerie, and it shall be tried by the Countrie. Otherwise it is in the Kings Courts.

Of Recorde, which are the Kings Courts, as he is King. Otherwise, if the * 1.12 King haue a Court as Lord of a Mannour, that is but a Court Baron. And these haue that credit, that no auerment can be taken against any thing there entered or done. And therefore worke an Estoppell to the * 1.13 parties in like sort, as Indentures did be∣fore. * 1.14 As vpon a Lease made by fine, both * 1.15 parttes are estopped to say the Lessor had nothing in the land.

So of Pleas in Barre, Replications, Re∣turnes of the Sherife, &c.

Statutes.

1. E. 3. Cap. 4. Statut. 1. Auerment giuen in a Writ of false Iudgement against the Record certifyed.

Things also that cannot be granted but by Deed, passe here, and that more strong∣ly, by matter of Record.

The King taketh Hereditaments, * 1.16 though it be but for yeares. Otherwise it is of an Obligation or Chattell personall, by matter of Record onely: for to personal and transitorie things, as Catalla felonum & fugitiuorum, wrecke of Sea, treasure troue, and the profits of land of persons out-law∣ed in a personall Action, &c. the King is intituled without office or other matter of Record: but to take a Free-hold by a Con∣dition * 1.17 broken, or purchase of his Villeine, or such like, hee cannot without office or matter of Record. Otherwise it is, where the Law casts a Free-hold vpon him, as in a gift in Taile, the remainder to the King. * 1.18

And therefore also the King taketh a Free-hold without liuerie or seisin by deed inrolled: but cannot be infeoffed by Deed, without inrollement of Record, for that no Liuerie can be made vnto him.

Villenage beginneth onely by confessing * 1.19 a mans selfe to be one in a Court of Re∣cord And therefore in a Praecipe quod reddat, * 1.20 if the Tenant say, That he is a Villeine to I. S. and holds the Land in Villenage, the demandant saith that is franke, &c. and he is found franke by the Iurie: yet he remai∣neth a Villeine to I. S.

Duties of the Testator growing by re∣cord, * 1.21 must be answered by Executors be∣fore other duties.

Courts of Record are the Parliament, * 1.22 or Courts that haue ordinarie iurisdicti∣on. For the Parliament when it is sitting, may take a Recognisance, and doe such other things as to a Court of Record ap∣pertaineth.

The Parliament is a Court of the King, Nobility, and Commons assembled, Hauing an absolute power in all causes. As to make Lawes, to adiudge matters in Law, to trie causes of life and death; to re∣uerse * 1.23 errors in the Kings Bench, especially where any cōmon mischiefe is, that by the ordinarie course of Law there is no meanes to remedie: this is the proper Court for it. * 1.24 And all their Decrees are as Iudgements. And if the Parliament it selfe doe erre (as it * 1.25 may) it can no where bee reuersed but in Parliament.

Statutes.

4. E. 3. Cap. 14. & 36. E. 3. Cap. 10. A Parliament shall be holden once euerie yeare.

1. H. 4. Cap. 14. No Appeale shall bee pursued in Parliament.

Prerogatiue.

Statutes of restraint binde not vnlesse they concerne the Common-wealth, or hée be specially named: As the Statute of Westm̄ 2. which altereth fee-simple Con∣ditionall, into an estate Taile, that Tenant in Taile shall haue no power to alien, doth binde him: for it is for the Common∣wealth. So as Lands being giuen to the King in Taile, the Remainder ouer, if the K. haue issue who alieneth, & dieth with∣out issue; hee in the remainder may enter. But if by Statute one be attainted, and his lands forfeit, with a prouiso that of such lands as hee was seised to the vse of any other cesty qui vse may enter; that bindeth not the King that cesty qui vse should enter vpon him, for it is not for the Common∣wealth. But the Statute of 1. H. 5. cap. 5. that in Enditements, addition must bee gi∣uen to the partie indited, bindeth the king in that case because Enditements are espe∣cially named.

He may licence things forbidden by the Statutes. As to coyne monie which is made felonie by the Statute, and was be∣fore lawfull, for that is but malum prohi∣bitum. But malum in se, as to leuie a nusance in the High-way, hee cannot licence to do: but when it is done he may pardon it. But where the Statute saith his Licence shal be void, there it must haue a clause of Non

obstante; that is to say, this clause, (notwith∣standing any Statute) else it is not good. As the Statute 23. H. 6. cap. 18. is, That the Kings Grant to be Sherife of any County, longer than a yeare, shal be void, notwith∣standing that the clause of Non obstante bee in the Patent: yet with a clause of Non ob∣stante such a Grant is good, and not with∣out it. But neither without nor by that clause, hee can dispence with a Statute be∣fore it bee made. And therefore a licence to carrie Bell-mettall out of the realm (not∣withstanding any statute made or to bee made) is not good, if a Statute be made af∣ter that to prohibite it. For hee cannot di∣spence with an Act of Parliament before it be made.

Courts of Record which haue an ordi∣narie Iurisdiction, are either generall, whose Iurisdiction extends throughout the Realme, or but within some Countie: wherefore these latter, for their order and * 1.26 course of proceeding, doe in all things fa∣shion themselues to the example of those higher courts, as of the parents from whom they come.

The former are those that are holden in Terme time onely: the whole yeare ha∣uing foure Termes, Michaelmas, and Hillarie Terme, Easter and Trinitie Terme, and euerie Terme seuerall dayes of Returnes. If either the returne day, or first or last day of Terme fall vpon the

Lords day, then the day following is taken in stead of it.

Michaelmas Terme (beginning the 16. of October, and ending the 28. of No∣uember) hath 8. returnes Octabis Michaelis that is the 8. day after the feast of Saint Mi∣chael. Quindena Michael, that is the 15. day after. Tres Michael, that is at the end of 3. weeks after. Mense Michael, that is at the end of a moneth after. Chrastino animarum, that is the next day after Chrastino Martini, Octab. Martini, Quindena Martin.

Hillary Terme beginning the 23. day of Ianuary, and ending the 12. of Februarie hath foure returnes: Octabis Hillarij. Quin∣dena Hillarij, Chrastino purificationis. Octabis purif.

Easter Terme beginning 17. dayes af∣ter Easter and ending the Monday next after Assention day, hath fiue returnes. Quindena pasche, Tres paschae, Mense paschae, Quin{que} paschae, that is fiue weekes after Chrastino Assentionis.

Trinitie Terme beeginneth 12. dayes after Whitsunday, & continuing, 19. daies, hath fiue returnes, Octab Trinitat. Quinde∣na trinitat', Chrastino Iohannis Baptistae Octab. Iohannis Baptistae, quindena Iohannis Baptista.

Statutes.

32. H. 8. cap. 21. Trinitie Terme shall be∣gin the Monday after Trinitie Sonday for keeping of Essoynes, profers, returnes, &c.

The full Terme shall begin the Friday af∣ter Corpus Christi day. And haue foure re∣turnes onely, Crastino Trinitatis, Octabis Tri∣nitat': quindena Trinitatis, Tres Trinitatis. The rest are cut off.

To these Courts belongeth the power of sending forth writs.

A writ is a Latin letter of the kings from thence in Parchment sealed with his seale.

All Writs haue a salutation, Rex to such a one salutem, And a conclusion expressing the name of one which is witnesse to the writ, called Teste (who in writs out of the Chauncerie is the king himselfe: in other writs the chiefe Iustice of the place) the place as apud Westmonastarium, &c. and the time both day and yeare of the making of it, if it be returnable, the day of the returne is also appointed in it.

The third writ (which is the Fluries) not serued, is a contempt, whereupon an At∣tachment * 1.27 lieth. And therefore the third * 1.28 writ hath alwayes this clause in it, Vel causam nobis significes. So may the second which is the Alias also haue, if the Plaintife * 1.29 will.

The officer of these higher Courts is the sherife to whom is committed the cu∣stodie * 1.30 of the Countie.

For matters spirituall, as certifying ex∣comengement and such like, the ordenary * 1.31 is their officer.

And to the Sherife the writ must bee di∣rected, though it bee for a thing done in a franchise, and he shall send to a Bailife of the franchise: who shall serue it as a ser∣uant to the Sherife, and the Sherife re∣turne it.

And though the Sherife serue an execu∣tion * 1.32 in a Franchise, yet it is good. And the Lord of the Franchise is driuen to his a∣ction vpon the case against the Sherife, for the Sherife is immediate officer.

But in a place excepted out of euery * 1.33 countie (as the pallace of Westm̄ is) it shal bee directed to the Gardian of the pallace, for he is immediate officer to the court, and in the nature of a Sherife.

So certificates of excommengement &, * 1.34 such like must be made by the Ordinarie, not by the Commissarie, Archdeacon, or any other, though hee haue an immediate iurisdiction, vnlesse he were speciallie ad∣mitted an officer to the court.

These generall courts, are the Chan∣cery and two benches: the Kings Bench, and Common-place.

Chancery which beside that it dealeth with matters of Conscience, and modera∣ting the strictnesse of the common law by an absolute power, dealeth also in ordinary course of law in diuers cases especially, in suits concerning the King, as petitions. Scire facias to repeale his patents, &c. and

so it is a court of law and of record, where the Iudge is the Chancellor hauing the custodie of the great Seale of England, vnder which passe all Writs out of the Chancery with Teste meipsos; and also the Kings (a) 1.35 graunts, being therefore called letters patents, Though it bee of things which he hath in his naturall capacitie, as by descent from his mother, &c. and are * 1.36 entred of record in this Court.

Statutes.

18. H. 6. cap. 1. The Kings letters pa∣tents must beare date the day of the deli∣verie of the warrant to the Chancellor, and not before, otherwise they are voide.

3. E. 6. cap. 4. Euery one that hath any interest in any land or office by or vnder authoritie of the kings letters patents (made after the fourth day of Februarie 27. H. 8.) may make his title auowrie plea, &c. aswel against the king as any other by an Exem∣plification (or constat) vnder the great Seale.

13. Eliz. cap. 6. So of the Patentees of King Henrie, 8. E. 6. Queene Marie, Philip and Marie, & her Maiestie that now is and all claiming vnder them.

Such graunts are effectuall to passe a freehold from the King without any liue∣ry * 1.37

of Seisin. And therefore his letters pat∣tents being Tenant in Taile make no dis∣continuance. And being matters of record, which being no lyuerie, they take effect from the time of the date. Therefore the Kings Charter of pardon shall bee pleaded * 1.38 without shewing when it was deliuered, because being a matter of record, it shall haue relation to the date, and not to the li∣uerie. Otherwise it is of a deed.

In default of a Chancellor, the Lord-Keeper of the great Seale hath his autho∣ritie. * 1.39

The Keeper (or Master) of the Rols, is an assistant to this Court.

In the Kings Bench and Common place, the Iudges are one chiefe Iustice, and thrée (or sometimes more) other Iu∣stices. The teste of their writs is, teste Io∣hanne Popham (the chiefe Iustice, &c.)

The Kings Bench is that which dea∣leth * 1.40 properly with Pleas of the Crowne, both hearing and determining them.

The Common place which dealeth pro∣perly * 1.41 with common Pleas, such are those termed which concerne possessions.

Prerogatiue.

The King hath a proper Court of this kind, for al things touching his reuenues, * 1.42 called the Exchequer.

The Iudges whereof are called Ba∣rons, or housebands for the Kings Reue∣nue:

being one chiefe Baron and three o∣ther. And this also hath a Court of Chan∣cery before the chancellor & Barons of the Exchequer, called the Exchequer chamber.

The Escheator here is a special officer, * 1.43 and hath a kind of Court for finding out the Kings title to lands, tenements, or o∣ther things.

Statutes.

14. E. 3 cap. 8. No Escheator shall tarrie in his office aboue a yeare.

These are the Courts whose jurisdiction extends throughout the Realme.

Those which deale but within some Countie, are the Sherife in his turne, and the Coroners.

The sherifes turne is a Court of record * 1.44 for offences which are common grieuan∣ces. As a robberie, (a) 1.45 bloudshed, clipping & washing of siluer and gold, night wal∣king, the not repairing or making cleane of a bridge or a ditch, (b) 1.46 fraies and assaults, &c. But not (c) 1.47 murder or breaking of ones hedge, &c. for they are no common grie∣uances, but a wrong to one singular person.

Whereunto euery man of the age of 12. * 1.48 years & vpwards (being within the pre∣cinct) oweth suite, & must be sworne to the Kings Allegeance. And this is called a suit * 1.49 reall, being not due by reason of mens free∣holds, but of their body, because they are resiant within the precinct of the Leet. But * 1.50 women are not compellable to come thither

nor to be sworne to the king. And therfore when a woman is outlawed, she is said to * 1.51 be waued and not outlawed, because she is neuer sworne to the Law.

Piers of the Realme are excepted: And * 1.52 persons of Churches, and other men of Re∣ligion, as appeareth before.

The offendor here shall be amerced, and distreined for that amercement, through∣out * 1.53 the whole precinct of the Countie.

Statutes.

Magn̄ Chart. 35. The sherife shall make his turne throughout the Hundred but twice a yeare, that is to say, once after Easter, and againe after Michaelmas. And the view of frankpledge shall be made as she turne of Michaelmas.

31. E. 3. cap 14. Stat. 1. The turne must be yearly, once within a moneth after Ea∣ster, and another time within a moneth af∣ter Michaelmas: if they hold them in ano∣ther manner, they shal loose their turne for the time.

1. E. 3. cap: 17. Endictments in Sherifes turnes must be by Rols indented, one part to remaine with the enditors, the other with the sherife.

1. E. 4. cap. 2. vpon endictments and pre∣sentments taken before Sherifes, or their ministers, at their turnes, or Lawdayes, they shall not attach, arrest, or imprison, nor leuie any fine, or amerciament of any person so indited (or presented) but shall

deliuer the same enditements or present∣ments to the Iustices of peace of the same Countie, at their next Sessions, who shall proceed thereupon, as if they were taken before them.

1. Ric. 3. cap. 4. None shall bee returned vpon pannell of enquirie of the Sherifes turne, but men of good name and fame, ha∣uing within the same freehold land to the yearely value of xx. s. or copie land to the yearely value of xxvj. s. viij. d. and euery en∣ditement otherwise taken shall be void.

The Coroners Court, is a Court for * 1.54 matters of the Crowne. Batterie, mayme, rape, murder, &c.

Statutes.

Westm 1. cap. 10. Coroners shall be cho∣sen in all Counties, of the wisest and suffi∣cientest Knights.

14. E. 3. cap. 7. That no Coroner shall be chosen, vnlesse he haue land in fee suffici∣ent in the same Countie, whereof he may answer to all manner of people.

28. E. 3. cap. 6. Al Coroners of the coun∣tie shall be chosen in the full Counties, by the Commons of the same Counties, of the most connenient and most lawfull people that shall bee found in the same Counties to do the office. Saued alwayes to the king, and other Lords which owe to make such Coroners, their seigniories, and franchises.

Westm. 1. cap. 10. The sherifes shal haue

Conterrols with the Coroners, as well of their appeales, as of enquests of Attach∣ments; and of other things which to that office doth belong.

Westm̄ 1. cap 10. Coroners must take nothing for doing their office.

Vpon iust cause of exception to the she∣rife, processe out of the higher Courts shall * 1.55 be directed to the Coroners.

Prerogatiue.

The Steward and Marshall of the Kings house, haue a Court, for al personel * 1.56 actions, and pleas of the Crowne, arising there. As debt, couenant, trespasse, &c. & by the common Law they might hold plea of freehold it selfe, as it seemeth by the statute of Artic. super Chartas cap. 3. which saith, from henceforth they shall not hold plea of * 1.57 freehold. Also they may enquire of treason, murder, felony, manslaughter, bloudshed, &c and take appeales of al kinds of felony and maime.

Statutes.

Artic. super Chart. cap. 3. They shal not hold plea of any contracts & couenants but such as one of the kings house maketh with another of the same house. Nor of any tres∣passe, vnlesse the partie were attached, and the plea determined before the kings depar∣ture from the place where the trespasse was committed.

Any thing attempted here against, is void.

Pleas of felony (that cannot be determi∣ned, before the Steward, because the fe∣lons cannot bee attached, or for other like cause) shall be referred to the common law.

5. E. 3. ca. 2 & 10. E. 3. ca. 2. Enquests shal be taken there by men of the county about, and by no men of the kings house, except it be in couenants, contracts, & trespasses, when either partie is of the kings house.

5. H. 6. cap. 1. The defendants may auerre that themselues or the plaintife (at the time of the suite commenced) were not of the Kings house against the Record.

13. Ric. 2. cap. 3. The iurisdiction shal not passe aboue 12. miles about the K. house.

33. H. 8. ca. 12. The Lord Steward of the Kings house alone, and (in his absence) the Treasurer and Comptroler of the K. house, with the Steward of the Marshalsy, or two of them (whereof the Steward of the Mar∣shalsy to be one) may without commission heare and determine all treasons, misprisi∣ons of treasons, murders, manslaughters, & bloudshed, within the K. house, although the king be remoued before. The enquiring and verdict must be by the kings houshold seruants in the Check Roll.

No Clergie, nor sanctuary, to any that is found guiltie before them.

By reason also of certaine franchises, grow two other Courts of records, which deale within some certaine precinct: a Leet and Court of Pipowders.

A Leet is a Court of Record, hauing * 1.58 the same iurisdiction within an hundred onely, or some lesse preciuct, which the Sherifes turne hath in the Countie, the * 1.59 profit of, it beeing to a common person. Therefore it (a) 1.60 dealeth with offences that are common grieuances. And (b) 1.61 all (but Piers of the Real me) owe suite vnto it, and must be sworne to the Kings Allegeanee. And the (c) 1.62 offendor for an amercement shall be distreined through out the precinct of the Leete. And that as well out of the Land holden of the Lord of the Leete (where the offence was done) as within it. The Sherifes turne as an ouerseer of this Court, is to (d) 1.63 enquire whether the ty∣things be whole, or no: to (e) 1.64 present de∣faults that are not redressed in the Leete: And if (for misuser or other cause) the Leet be seised into the kings hands, all the peo∣ple shall come to the sherifes turne. But (f) 1.65 otherwise the sheriefe in his turne hath no power to enquire of an offence done within the Leete.

A Court of pipowders is a Court of record, (ff) 1.66 incident (g) 1.67 to Faires and Markets: but by (h) 1.68 custome, a Court of pipowders may bee held, out of Faire or Market: for all actions arising there, by reason of any contract, couenant, trespasse, debt, &c. (i) 1.69 And the suite must at the same time be commenced.

Statutes.

17. E. 4. cap. 2. made perpetuall, 1. R. 3. cap. 6. No plea shall be holden in Court of Pipowders, vnlesse the plaintife or his At∣turney sweare, that the matter of declara∣tion was done in time of the same Faire, & within iurisdiction thereof, but that oath shal be no conclusion to the defendant, but that he may pleade as he might before. E∣uery Steward, &c. holding plea contrarie, forfeiteth C. s. * 1.70

The King (by commission vnder his letters pattents) but not by writ, may erect other Courts at his pleasure.

Such were Iustices of Eyre, and such Courts of record in Corporations, and o∣ther places, by speciall Charter.

The Kings Councell also is a Court, to deale with the punishment of contempts, and called the Starre-Chamber. But this is no Court of Law.

Statutes.

3. H. 7. cap. 1. The Chancellor, Treasurer, and priuie seale, or two of them (calling vnto them a Lord Temporall, and another spirituall of the Kings Councell, and the two chiefe Iudges) may examine ryots, maintenances, &c.

These are the Courts of record. A court Baron is the Court of a common person. * 1.71 And is for personall accounts vnder the value of xl. s. For a Trespasse lieth not in a

Court baron of damages aboue xl s. And a Supersedeas lieth to the Sherife, vpon diuers plaints in the Countie Court, euery one vn∣der xl. s. when all are for one entire debt of xl. s. Or vpon an Action of Couenant brought there to the damage of aboue xl. s.

These cannot be kept oftner then euer is three weeks. But so it bee not oftner then * 1.72 from three weeks to three weeks, it may be holden as often as the Lord wil. And there∣fore * 1.73 to hold of one by doing suite at his court of D. at Mich and at Easter, it is to be entended at his Court Baron; for though a court Baron be commonly holden from 3. weeks to 3. weeks: yet suite of Court may be once, twice, or thrice a yeare, as it is first re∣serued.

The processe here is by precept to the bailife, good enough, though it bee but by * 1.74 word: Inasmuch as the triall in a Court Baron is all by the Countrie, and not by Re∣cord: for all is but matter enfait.

The sutors are the Iudges, both in an hundred Court, Countie Court, or Court * 1.75 Baron, and the bailife and sherife are but ministers.

A Court Baron is the Lords, or the * 1.76 Countie Court. The Lords is either of a particuler mannor, or of a whole hundred. For a Court Baron is incident to euery (a) 1.77 mannor, and to euery (b) 1.78 hundred.

The hundred Court is that whereunto all the inhabitants within the hundred owe suit. By reason of their tenements. And is in

effect but a Court Baron.

The Countie Court, which is incident * 1.79 to the Sherife. For the Sherife hath two Courts by the common law, for gouern∣ment of the shire: his Countie Court, (wherein one shall haue remedie against a∣nother for any matter betweene them) and the sherifes turne. But the pleas holden be∣fore him in the Countie Court are not of * 1.80 Record, though it be by writ of Iustices.

CHAP. 2.

Of Writs Originall.

OF an action, there be two parts, Suite, and Iudgement. * 1.81

Suite, is the parties dealing in the action: and therefore all that while it is said to depend in plea, but not after Iudgement. The partie that bringeth the action, is called Plaintife in a personall action: demaundant in a reall: he against whom it is brought, Defendant in the first, Tenant in the other: who for their helpe are allowed councell learned in the Law.

Statutes.

Westm̄ 1. cap. 25. No minister of the King may maintaine another in any

action in the Kings Court to haue part of the thing, or other profit by couenant vp∣on paine of punishment at the Kings will.

Westm. 2. cap. 49. None of the Kings of∣ficers shall take, or purchase, or bargaine for land, tenement, or aduowson whilest the thing is in plea, vpon paine to bee puni∣shed at the kings pleasure, as well the pur∣chaser as the other.

Artic. super chart. cap. 11. Neither the Kings officer, nor any other shall do so vp∣on paine of forfeiting to the King so much of his lands as a mounteth in value to that he purchaseth. Any may sue for the King before the Iustices, before whom the plea hangeth.

32 H. 8. cap. 9. None shall, buy, sell, or get, or take promise, or grant to haue, any pretensed rights or titles to lands, &c. except the seller, or those (by whom he claimeth) were in possessions, or tooke the profits, by space of a yeare next before, vpon paine that the Seller, &c. shall forfeit the value of the land, and likewise the buyer know∣ing the same. Prouided, hee that is in law∣full possession by taking the yearly profits, may buy, &c. anothers pretensed right.

Gloucest▪ cap. 8. Atturnies may be made in all pleas, where appeales lye not.

Met. cap. 10. In suits; at a Countie, ty∣thing, hundred, wapentake, or Court of the Lord.

Westm. 2. cap. 10. A generall Atturny may be made, in all Counties where Iusti∣ces

do iourney.

3. H. 7. cap. 1. An appeale of murder or death, may be pursued by Atturney.

The suite hath two parts, the begin∣ning and proceeding.

The beginning is the proper dutie of the plaintife. And hath two parts.

The first matter of the suite, and origi∣nall processe.

The first matter of the suite must al∣wayes be brought in that Countie where the cause of suite groweth. As actions of * 1.82 debt vpon an escape, may be brought in the Countie where the arrest or escape was. But not in any other Countie: A (a) 1.83 trespasse of battery, goods carried away, or writings broken, may be brought in any Countie; for they are not locall. Otherwise it is of trees, or grasse cut downe, they must bee * 1.84 brought in their proper Countie, if it be by bill, the Countie is set at the margent.

Statutes.

6. Ric. 2. cap. 2. Debt, account, and all such actions shall be brought in the coun∣tie, where the contract was made.

The first matter of the suite is for euery man by writ out of the Chancerie, or in Courts where writs lye not by plaint or bill: for the King alone by enquirie.

In all of the first kind, the plaintife must find suretie by some that will be pledges to prosecute the suite. And so is the forme of

euerie originall Si (the Plaintife) fecerit it securam de clamore suo prosequendo, The en∣trie is, plegij de prosequendo Iohannes D••••. Rich. Roo. And these may be either to the * 1.85 officer, or to the Court where the suite is. But a poore man in stead of sureties shall * 1.86 giue his faith to prosecute it: whereupon the forme for him is, Et nisi fecerit & prae∣dict, (the plaintife) fecerit te securum de cla∣more suo prosequendo per fidem suam quia pan∣per est.

Writs that begin the suit, are originall, or Commissionall.

Originall which appoint the first pro∣cesse, if the plaintife find pledges returne∣able in the Kings Bench, or Common place.

This must be (a) 1.87 true Latin, for vpon habeas ibi hos (b) 1.88 breue, or vxori (c) 1.89 where it should be vxor, and such like, the writ shall abate, and beside (d) 1.90 formal, As (e) the Generall to be put in demand, and in plaint before the speciall. As land is generall to pree, pasture, wood, ioncarie, marsh, &c. Wood is the generall of all trees growing, and therefore shall bee put in demand be∣fore Alders and Willowes which are but species of it. The entier shall be demanded before the moyetie or part or parts. The more worthie thing shall be demanded be∣fore the lesse worthie, as a messuage before land: for land that hath building vpon it, is more worthie then land without buil∣ding. A Castle, before a messuage, or a

mannor (and yet it may bee parcell of a mannor.) But the reason is because a castle is more worthie. As being a place of force and defence against the enemie in time of warre, and against Rebels in time of rebel∣lion, a place in time of peace fit for the cor∣rection and imprisonment of great Malefa∣ctors, and a magnifical habitation for No∣blemen▪ So in a repleuin, if it bee of two Chattels, one quicke and the other dead, the liuing thing shall be first demanded.

Also it must expresse the name of bap∣tisme, and surname, or in liew thereof, the name of dignitie both of the plaintife and defendant. But not the name of his office, which is no dignitie. As pr. q. r. Iohanni Du∣ci (a) 1.91 Lancast. is good, but not Iohanni Recto∣ri (b) 1.92 de D. without expressing his surname. But when an officer is to sue by reason of his office, as a (a) 1.93 prebendary (b) 1.94 person, executor (c) 1.95 gardein (d) 1.96 by Knight seruice, &c there he must expresse the name of his office: or when one bringeth an appeale of murder, ••s brother and heire, &c.

Where there be many of one name, diuer∣sitie of the names must be put by addition of eigne puisne, &c. else the writ shall abate.

A Corporation may sue by the name that they are corporate, without name of Bap∣tisme or surname, as pr q. r. maiori & comu∣nici L. &c. or Decano et Capitalo D. &c.

Statutes.

1. E. 6. cap. 7. The acceptance of a new name of dignitie shall not abate the writ.

The kings seruants in his Court or o∣ther by speciall grace of the Chancellour * 1.97 may here bee admitted to finde pledges in the Chancery. And then the forme is, Quia praed. (the plaintife) fecit nos secures de clamore suo prosequendo pro C. de com. L. et D. de com. S. summoneas, &c.

CHAP. 3.

Of Common pleas.

VVRits original are concerning * 1.98 Common Pleas, or appeales that concerne life.

Those that concerne com∣mon Pleas, lye not for or a∣gainst * 1.99 a fem couert without her husband, but (a) 1.100 an appeale of felonie against her doth.

Many hauing or giuing ioyntly cause of action, may sue or be sued together in one: which is called Ioinder in action. As A. is bound to B. in one statute merchant, and * 1.101 after A. and diuers others are bound to the same B. in another statute, and B. by one deed releaseth to them all, and after sueth execution seuerally: They shall ioyne in an Audita querela, because of this Ioynt re∣lease.

So one Decies tantum shall be against * 1.102 all the Iurors that take money to giue their verdict, for it is the entire act of all.

Seuerall actions of one nature, as debt, and detinue (for these are of one nature, in∣asmuch * 1.103 as the warrant of Attorny in a writ of detinue, and also the essoin. shall bee in placito debiti) may be ioyned in one origi∣nall with seuerall praecipes, or commande∣ments to be executed.

Prerogatiue.

Here in place of action against the King, petition must bee made vnto him in the Chancery, (a) 1.104 or in (b) 1.105 Parliament, for (c) 1.106 no action did euer lye against the K. at the Common Law, but the partie is driuen to his petition, and (d) 1.107 if the Eschetor seise goods without cause, or seise the goods of one outlawed, which outlawry is after re∣uersed, and account for them in the Exche∣quer; the partie must sue by petition for them. And that (in the case of heredita∣ments) * 1.108 though the King haue granted the same away. For vpon an office finding I. S. (who was attainted of felonie or treason by matter of record before) to be seised of cer∣taine land, if the King seise and grant i•• ouer, yet a stranger that hath right to enter or bring his action may do neither against the patentee, but must to the K. by petition. Whereupon processe shall goe out against the Grantee to maintaine his title. As the * 1.109 king

grants ouer his wardship, or any other cer∣taine estate in the land: the Scire facias for him that sueth the petition, must be against the patentee, not against the heire, in whose right the king is seised, for hee is not to pleade with the Heire, but with the King or him that hath his interest. And in a peti∣tion to reuoke letters pattents made to two * 1.110 &c. a Scire facias vpon it: the death of one of the patentees abateth not the petition, for the petition is not sued against the pa∣tentees, but against the king, nor they need not to be named in the petition, but in the Scire facias.

But whilest personall things seised for the King, remaine in the officers hands, * 1.111 the partie that hath right may trauerse the Records that entitle the King, and so haue his goods againe, or sue the officer, or di∣sturbe him to take the profits: As where it is found that one outlawed in a personall account, was seised of certaine land; and in this case he shall not be driuen to a petiti∣on: otherwise it is in case of a freehold, or inheritance.

Petition is a supplication declaring the * 1.112 parties right, where mention must be made of all the Kings title; else it shall abate. For vpon an issue in the petition found against thc king, he shall be concluded for euer to claime by any of the points contained in the petition.

CHAP. 4.

Of Reall Actions.

THese Writs concerning Common pleas are Reall or Personall. And * 1.113 they both againe are precipes, or Si fecerit te securum.

A precipe is that which willeth the Sherife to command the defendant to do somewhat in certaine that the plaintife sueth for, which if he do not, then to serue the first processe. The forme is, Praecipe A. quod reddat B. &c. Et nisi fecerit, &c, tunc somon', &c. And is a praecipe quod reddat which lyeth for things in render. As of reall things, land and such other things in de∣mesne, rent, corody, &c. of personall things, mony, goods deteined, and the like. A prae∣cipe quod faciat which lyeth for things not in render, whether they lye in Feasaunce as a writ de consuetudinibus et seruities, Secta ad molendium, &c. or in sufferance, as a quod permittat, or in other things of any such like nature.

A Si fecerit te securum, is that which wil∣leth the first processe to be serued without more a doe. The forme is, Si A. fecerit te se∣curum de clamore suo prosequendo tunc sum∣on', &c.

Reall actions where a freehold shall be * 1.114

recouered are possessory or in the right.

Possessory which are to recouer a pos∣session, as all Assises, Writs of Ayell, Be∣sayell, and Cosinage.

In the right which are to recouer a pos∣session mixt with the right of all which ex∣amples do follow after.

And both these may either bee of a pos∣session * 1.115 or right in himselfe, or descended from his ancestors: which we call aunce∣strell.

Reall actions in the right, are either founded vpon the right, or for the meere right.

Statutes.

Merton cap. 8. Seisin of ones ancestor in a writ of right shall be from the time of Henrie the second.

In a mort dauncestor writ of Niefe and of entrie, from the last returne of king Iohn out of Ireland.

In an Assise of Nouell disseisin, from Henrie the thirds first passage into Gas∣coygne.

Westm̄ 1. cap. 38. Seisin of ones ancestor in a Writ of right, shal be from the time of Richard the first.

In an Assise of Nouell disseisin and nuper obijt, from Henrie the thirds first passage into Gascoigne.

In a mortdancestor cosinage, ayell, en∣try,

and Writ of Niefe, from Henrie the thirds Coronation.

32. H. 8. cap. 2. Seisin in a Writ of right shall be within lx. yeares.

In a mortdancestor, or in another posses∣sory action, vpon the possession of his Aun∣cestor or Predecessor, shall bee within l. yeares.

A Writ of the possession of the plaintife himselfe, shall be within xxx. yeares.

An Auowrie or Cognisance, for rent, suit or seruices of the seisin of his Ancestor, or of his owne, shall be within xl. yeares.

Formedon in remainder, reuersion, Scire facias, vpon a fine, shall be within l. yeares after the title accrew. If a man prescribe in land, rent, or such like, of the possession of his ancestor, or predecessor, he shall alledge seisin in them within lx. yeares next before the time of the prescription, title, or claime.

1. Mar. cap. 5. The Statute of limitation of 33. H. 8. cap. 2. shall not extend to a writ of right of Aduowson. Quare impedit, Iure patronatus, Assise de Darrein, presentment, droit de gard of any lands holden by knight seruice, but the time of the seisin al∣ledged shall bee as it was at the Common Law.

These kind of reall actions, viz. where the freehold shall be recouered, lye onely a∣gainst the tenant of the Freehold. There∣fore * 1.116 a release of all actions reals, is no plea,

vnlesse he were Tenant of the Freehold at the time of the release, for else hee had no cause of any such action against him. Nei∣ther * 1.117 is any such action maintenable against lessee for yeares, for he hath not the Free∣hold. Nor the disseisee cannot haue a praeci∣pe quod reddat against the disseisor, which is parnor of the profits for yeares onely, not∣withstanding * 1.118 the Statute, because by the Common Law, no action lyeth against * 1.119 him. And for this cause also, non tenure of the whole, or though it be but of parcell of the thing demanded. Ioynttenancie with one not named in the Writ. Entiertenancie of the whole, or seuerall tenancie of parcel, * 1.120 when the Writ is brought against two or more, are good pleas in abatement of the * 1.121 Writ. * 1.122

Statutes.

25 E 3 cap 16. Non tenure shall not a∣bate the writ, but onely for the quantitie.

37 E. 3. cap 17. No writ shall be abated by knowledgement of villenage, if the de∣maundant or plaintife will auerre that hee that alledged the exception was free, day of the writ purchased. With the freholder, may be ioyned in action, any hauing title to en∣ter: as the morgagor with the morgagee, * 1.123 the Lord with his villeine, but not the dis∣seisee with his disseisor.

CHAP. 5.

Of a Plea of Land.

A Reall praecipe quod reddat, is that which is for reall things in render. And is a plea of land or other such reall precipe

A plea of land which is for land or other such things in demesne, where land in cer∣taine is demanded, it must alwayes bee brought in a ville, or place knowne out of any ville And not in a hamlet which is par∣cell of a vill. But personall actions, as tres∣passe, and such like, may be in a hamlet. So of Dower and Assise, for there no land in certaine is demanded; and also in an assise, he shall recouer by view of the Iurie. So in a Scire facias out of a fine nuper obijt, a Writ of mesne, couenant, wast, quare impedit. These may be in a Hamlet. Otherwise it is of a Writ of right of Aduowson.

A plea of land is a Writ of Entrie, or a writ shewing the demandants title.

A writ of Entrie is that which is to disprooue the Tenants possession by the meanes of his entrie.

Wherein Tenant in fee simple deman∣ding * 1.124 of the possession of his ancestor shall say in the writ, Quod clamat esse ius & here∣ditatem suam. Tenant in Taile or for life, shall not so. But in his declaration set forth * 1.125

his speciall estate.

A Writ of Entrie is either against the first partie, or in the degrees.

Against the first party, when it is against him to whom the first allienation was, or that made the first disseisin.

That in the degrees, is in the Per, or in the Per and Cui.

In the Per, when he against whom it is brought commeth in immediatly vnder the first partie, as heire vnto him, or by alie∣nation from him.

In the Per & Cui, when he against whom it is brought commeth in immediatly vnder the first parties heire or allience: For if more then these two alienations (the Per, or the Per and Cui) passe, the demandant is driuen to his writ of right. And the reason is, that there may be an end of suits. For no Writ of Entrie in the Post lay at the Com∣mon Law. But the same is giuen by the sta∣tute of Marlebridge. cap. 29. Which writ of Entry in the Post giuen now by that Sta∣tute, lyeth when hee against whom it is brought commeth in neither in the Per not Per and Cui, then the Writ shall be In quod, &c: nisi post dimissionem, &c. Out of all degrees, as by abatement, disseisin, eschete, recouerie, Election, Succession, Dower, Iudgement, &c. or as the third or more feffees.

The forme of all which is thus In a writ of Entrie, in the nature of an Assise, against the partie himselfe that did the disseisin,

Praecipe A. quod reddat B. vnum Messuagium, &c. de quo A. iniuste et sine Iudicia disseisiuit B. &c. or in the other forme disseisiuit C. pa∣trem, or other ancestor of B. cuius heres ipse est, &c. In the Per thus. In quod idem A. non habet ingressum nisi per C. qui illud ei dimisit qui iniuste B. &c. (or in the other forme) qui iniuste, &c. E. patrem, &c praedict. B. &c. In the Per and Cui thus. In quod, &c. nisi per C. cui D. illud dimisit qui inde iniuste B. or (in the second forme) qui iniuste E. patrem, &c. praed. B. In the post thus. In quod, &c. nisi post dis∣seisinā quam D. iniuste fecit praed. B. or (in the other forme) iniuste fecit E. patri, &c. praed. B. &c. In such like manner it is of a Dum fuit infra aetatem, and of all other Writs of En∣trie vpon an alienation. Marleb. cap. 29.

Writs of Entrie grow either without wrong at the first, or vpon a wrong.

Those without a wrong at the first, are grounded vpon a determination of the first estate, or a dishabilitie in the person that made it.

Vpon a determination of the estate, ei∣ther by reason of a particular estate ended, or a condition broken.

Of a particular estate ended is an ad ter∣minum qui praeterijt, or Entre ad Communem Legem.

Ad terminum qui praeterijt, is vpon a de∣forcement by the lessee or a stranger after a Lease for yeares, or life expired, whether the Lessee did allien, or not. But not after

the death of Tenant in Dower, or by Cur∣tesie, for that is not properly called a Terme

Entrie ad communem legem, is when te∣nant for life, be it his owne or anothers life, tenant in Dower or by curtesie of England doth alien and die, and hee in the reuersion for life, may haue this writ.

Of a condition broken, as Causa matri∣monij praelocuti. Causa matrimonij pralocuti, is for a woman that giueth land to a man to marrie her, and he will not: but it lyeth not for a man that giueth lands to a woman.

Grounded vpon the disabilitie, are a Dum fuit infra aetatem, and a Dum non fuit compos mentis.

Dum fuit infra aetatem is by the infant, when he commeth to his full age, vpon an alienation by himselfe, or his auncestor, be∣ing within age.

But the clause that he is of full age, viz. qui plenae est aetatis, shal not be inserted in the Writ, if either it be brought in the degrees Per, cui, or post, or vpon the ancestors alie∣nation.

Dum non fuit compos mentis, is vpon the alienation of himselfe, or his ancestors be∣ing of non sane memorie.

Those vpon a wrong at the first are ei∣ther vpon a discontinuance, or an ouster.

Vpon a discontinuance, as a Cui in vita, or a Sine assensu capituli.

A Cui in vita, for the wife after the hus∣bands death vpon his alienation of her fee simple, fee taile, or freehold, whether

whether dower or otherwise, or of such a ioynt estate in them.

And in this writ claiming a fee simple, but not an estate Taile or a freehold, for there the Writ shall make speciall mention of the estate, she shall say, Quod clamat esse ius et hereditatem suam, though it be of her owne possession.

Statutes.

Westm̄ 2. cap. 3. A cui in vita giuen to the wife after her husbands death, vpon his losing of the land by default. And the Te∣nant that recouered against her husband must maintaine his owne right.

If it be an estate of fee simple, and she bring not in her life time a cui in vita, the heire shall haue a Sur cui vita. But of an e∣state taile onely, a formedon lyeth in this case for the heire.

And of this nature is a cui ante diuorti∣um, when it is brought by the wife after diuorcement, vpon such an alienation as before.

A fine assensu capituli is for the Succes∣sor of a Bishop, Abbot, Prior, Deane, Prebendarie, or Master of any Hospitall after the discontinuance of the Predeces∣sor, viz. when they alien the lands they haue in the right of their Church, house, Abbey, or Priorie, without the consent of their couent, Chapter, or Confrers, &c.

Vpon an ouster, or either vpon an in∣trusion or a disseisin.

That vpon an intrusion is called a writ of intrusion, and is for him in the reuersion or remainder in fee simple, or for life, not in taile (for hee shall haue a formedon) nor for yeares, because he hath not the freehold, after the death of tenant for life in Dower, or by curtesie.

And if land bee giuen to two, and the heires of one, and hee that hath fee dyeth, and after him tenant for life dyeth. Now the heire of him in the remainder shal haue this writ. And it lyeth also for the assignee of the assignee of him in the remain∣der.

Vpon a disseisin, is when the disseisin is done to him or his Ancestors. As a writ of Entrie in the Quibus; or which is all one in the nature of an Assise.

Writs that shew the demandants title, are meere possessorie, or in the right.

Meere possessorie are those which are brought by the next heire vpon an abate∣ment after the death of any auncester, other then his father, mother, brother, sister, vn∣cle, Aunt, Nephew, Neice, for vpon an a∣batement after the death of any such aun∣cestor, an Assise of mortdauncestor lyeth as shall appeare afterwards: seised in demesne as of a fee simple the day of his death, though hee were disseised the very same day, and so died not seised at all. Of this nature are,

A Writ of Ayell after the death of his grandfather or grandmother.

A writ of Besayel after his great grand∣father or grandmother.

I writ of Cosinage after the death of his great great grandfather or grandmo∣ther, or any other collaterall Cosin, as the great great grandfathers brother.

Statutes.

Westm̄ 2 cap. 20. In a Writ of Cosinage, Ayell, and Besayell, the point shall bee en∣quired whether the demaundant bee next heire aswell as in a mortdauncester.

In the right, is that which is to dis∣proue the right of the Tenant, and is a Writ of right in his nature, or a Praecipe in Capite.

A Writ of right in his nature which sheweth how the demaundants right is growne. And is a formdon or a writ of Es∣chete and Dower, vnde nihil habet.

A Formdon is a Praecipe quod reddat, entitling the partie by the forme of the gift.

And is a formedon in remaynder, or a Formedon in reuerter: for a formedon in descender lyeth not at the Common Law, but is giuen by the Staute of Westm̄ 2. * 1.126 cap. 1.

A Formedon in remaynder is for him in the remaynder for (a) 1.127 life, or in (b) 1.128 fee vpon a Lease for (c) 1.129 life expired. For after an

estate taile expired, it lay not at the Com∣mon Law: because it was a fee simple, whereupon a remainder could not depend.

A formdon in reuerter is for the donor * 1.130 alter the issue in taile determined, as at the Common Law, if the donee alien before issue had, and after die without issue: or if he haue issue, and after he or his issue dye without issue. Contrarie it is if he had issue and then had aliened, and dyed without issue.

A writ of Eschete is for the Lord that hath a seigniorie in fee, or for life vpon an eschete.

Dower, vnde nihil habet, is a writ for * 1.131 ones dower, which hath receiued no part at all of it.

Statutes.

Westm 1. cap. 48. A writ of dower vnde nihil habet, shall not abate though she haue receiued part of her dower before the writ purchased, vnlesse it were of the same par∣tie against whom the writ is brought, and in the same Towne.

A writ of dower lyeth against gardein * 1.132 by knight seruice, though he be not tenant of the freehold.

A praecipe in capite is a praecipe quod red∣dat, for the meere right: and therefore lieth * 1.133 onely for Tenant in fee simple of lands holden in Chiefe.

Statutes.

Washm̄ 2. cap. 4. In place of a writ of right, a Quod ei deforceat is giuen to Te∣nants for life or in taile vpon loosing by default.

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: * 1.134 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 * 1.135 he shall recouer the seruices inclusiue, inas∣much as he is to haue a returne in an Assise * 1.136 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 * 1.137 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 * 1.138

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, * 1.139 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. * 1.140 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 & * 1.141 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.

CHAP. 7.

Of a Writ, De cousuetudinibus & Seruitijs, and Secta ad moiendinum.

A Reall praecipe quod faciat is either to recouer hereditaments, or some reall thing that concerne them.

Those that are to recouer some * 1.142 hereditament demanding of 〈◊〉〈◊〉 owne seisin are in the debet and solet, de∣manding

of the ancestor seisin, they are in the debet onely, and then are in all respects as writs for the meere right, that is to say, are triable by battaile, or grand Assise

These are either in respect of a seignio∣rie, or to recouer some other hereditament.

In respect of a seigniorie, as a writ De Consuetudinibus et Seruitijs, and a secta ad mo∣lendinum.

A writ De consuetudinibus et seruitijs ly∣eth * 1.143 for the Lord that hath an estate for life or a greater estate, in the seigniorie, and is deforced of his seruices

Secta ad molendinum lyeth for the Lord, when the Tenants that hold of him by * 1.144 grinding their corne at his Mill, with∣draw their suit, and grind elsewhere.

Statutes.

Marleb. ca. 9. The Processe either where the Lord distreineth against the forme of this Statute, or the Tenants withdraw the suits due, is attachment, (wherein onely essoin is allowable, and deliuerance of the distresse incontinently to remaine so till the plea be ended) Venire facias, and the grand distresse. At which day not appearing, the distresses deliuered shall so remaine till re∣couerie in the Kings Courts, til which time the Lord (in case he bee defendant) must distraine no more; and the Plaintife shall be dismissed without day, if the defendant come to answer, and the matter passe, a∣gainst

him, the Plaintife shall recouer da∣mages.

This of damages to be recouered (in case where the Tenant is defendant) is to be vn∣derstood of withdrawing the suit from the Lord himselfe, and not from his prede∣cessors.

CHAP. 8.

Of a Quare impedit, and a quod permittat.

FOr other heraditaments are a quare impedit, and a quod permittat.

A quare impedit lieth vpon a distur∣bance, * 1.145 where he, or his ancestors, or those from whom he claimeth, hauing at any time before presented to a Church, himselfe is now disturbed.

Statutes.

25 E. 3. cap. 3. Stat. 3. Vpon the Kings collation or presentment to a benefice, his title shall bee well examined, and beeing found before Iudgement vntrue, or vniust, the collation or presentment shal be repea∣led. And the patron or possessor which sheweth the false title, shall haue thereupon Writs out of the Chancerie, as many as are needfull.

Marleb. cap. 12. In a Quare impedit, and Assises of Darrein presentment, day shal be giuen from xv. dayes to xv. dayes, and from three weeks to three weeks. And in a quare impedit the processe shall be a summons, at∣tachment or grand distresse.

Westm̄ 2. cap. 5. If Coparceners make partition to present by turne, and one of them present accordingly, he that is after∣wards disturbed shall haue a Scire facias, (and not be driuen to his quare impedit) and recouer his presentation with damagess.

An auowson (after the death of one that hath presented) being assigned in dower, or to Tenant by Curtesie, and they present, the heire if he be disturbed after their death shall haue a quare impedit, or darrein pre∣sentment at his pleasure. So of an auowson demised for life, yeares, or in taile, when 6. moneths passe hanging a quare impedit or darrein presentment, so as the Bishop pre∣senteth by lapps, the patron shall recouer damages to two years value of the Church. Otherwise damages to halfe a yeares value: The disturber not being able to render da∣mages, shall in the first case haue imprison∣ment of two yeares, in the second of halfe a yeare.

A Quod permittat lyeth for one that hath Common of pasture for his beasts, being * 1.146 disturbed by a stranger, so as he cannot vse his Common.

CHAP. 9.

Of a Curia claudenda, Writ of Couenant reall, mesne and warrantia chartae, where of fines.

THose that are to recouer some reall thing concerning hereditaments are a Curia claudenda, or a Coue∣nant reall, and other writs soun∣ding in that nature.

A Curia claudenda lyeth for a (a) 1.147 freehol∣der, not for a Tenant for yeares, when one that hath a Close next adioyning to him, * 1.148 which he should keepe enclosed, will not do it. A writ of Couenant reall, lyeth vpon a Couenant to do a thing reall, as to leuie a fine of lands, &c. Writs in the nature of a couenant reall, are a writ of mesne and a warrantia chartae.

A writ of mesne lyeth for the Tenant ngainst the mesne, when the Lord para∣mount * 1.149 doth distreine the Tenant whom the mesne ought to acquit.

Statutes.

Westm. 2. cap. 9. The Tenant distreined

by the chiefe Lord may haue a writ in the Countie where he is distreined against the mesne, who hauing land in that Countie, and not appearing till the grand distresse, day shall bee giuen in the grand distresse, so as two Counties may bee holden before the returne. Wherein the Sherife shall proclaime that he come to answer the Te∣nant at the day. At which day if he come not, he loseth his seruice, and the Tenant shall hold of the chiefe Lord by the same seruices that the mesne held. The chiefe Lord may not distreine the Tenant of the demesne if he offer the seruice due. And ex∣acting of him more then the mesne ought to doe, that Tenant shall haue the remedy that the mesne might haue.

Vpon a returne that the mesne had no∣thing to be sommoned by an attachment shall go out, and vpon a nihil returned, the grand distresse with proclamation as be∣fore.

The mesne hauing no land in that coun∣tie but in another vpon such a returne by the Sherife, the partie shall haue a Writ Iudiciall to summon the mesne in that Countie where it is testified that hee hath lands, and both there and in the other Countie shall proceed to the grand di∣stresse, and proclamation and Iudgement as before.

The mesne comming into the Count and

acknowledging, or being adiudged to acquit his Tenant, and not doing it, the Tenant shall haue a Iudiciall Writ of acquittance. Whereupon if the mesne come in, and the Tenant can auer that he hath not acquitted him, he shall bee satisfied of his damages, and be quit of the mesne, and hold of the chiefe Lord, and if the mesne come not at the first distresse, then another distresse shal go out, and proclamation, and so proceed to Iudgement as before.

This statute extendeth only where there is but one mesne betweene the Lord that distreineth and the tenant, the mesne of full age and the Tenant, tenant in fee simple.

A Warrantia Charta lyeth for him that hath lands or Tenements warranted vn∣to * 1.150 him, either by feoffement, (a) 1.151 release, or confirmation with clause of warrantie, where his hereditaments are lyable from * 1.152 the time of the action brought. Therefore it is pollicie for one to bring his Warrantia charta before he be sued. For vpon vouching when he is once sued, he recouereth in va∣lue but such lands as the vouchee had at the time of the voucher.

And vpon these writs of (a) 1.153 Couent re∣all, (b) 1.154 mesnes (c) 1.155 warrantie of Charters, as also vpon a Writ of (d) 1.156 customes and seruice, s a fine may be leuied.

A fine is the acknowledging of an he∣reditament in the Kings Court according to the couenant, to be his right that doth

complaine, He that complaineth is called plaintife, and the other deforceant. And this acknowledging of it to be ones right is called, A fine sur conueyance de droit, But if the right be ackowledged to bee his, as that which he hath of the gift of the Conisor, it is called a Fine sur conisance de droit come ceo quel ad de son done. The forme of a fine is, Haec est finalis concordia facta in curia dn'i Regis, &c. vnde plac' conuenti∣onis pendet in ead' curia sc. qd. prad' I. S. recog∣nouit tenementa praed esse ius ipsius A. &c.

A fine may be leuied vpon a writ of war∣rantie of Charters, for it is in effect but a * 1.157 couenant betweene the parties before the Iustices, and entred of record. And before the Statute of Westm. De his quae concordata sunt (which giueth a scire fac.) if the fine were not executed, the partie should haue a writ De fine fracto, and recouer dammages onely, which proueth that a fine is but a couenant of record.

Where one of thē must needs haue such an estate at the time of the fine leuied, for against the plea that the parties to the fine * 1.158 had nothing &c. it is no good replication, that the parties were seised &c. for if one * 1.159 of them were seised it is sufficient. Which forme of pleading (viz that one of the parties was seised) proueth that if he haue * 1.160 left an estate for yeares the fine is voyd. And a fine of the land it selfe will passe a∣way a reuersion depending vpon an estate estate for life. And this is as it were a

feoffement of record. So as a freehold pas∣seth * 1.161 thereby without any liuerie of seisin. That where of the fine is leuied, or any thing contained in it, as a rent Common, &c. out of the land, an estate for yeares, or other estate in the land, &c. may be granted backe againe to the Conisor by the same fine. And this is called a fine sur graunt & render. The forme whereof is: Et pro hac re∣cognitione, &c. the conisee concessit, to the conisor, praed' tenem' cum pertiū & illa ei red∣didit * 1.162 in ead' curia haben', to the conisor, &c. * 1.163 for none can take the first estate but those that are named in the Writ of couenant. But euerie stranger may take a remainder. As A. leuieth a fine to B. who rendreth it backe to A. and E. his wife, &c. In this case E. hath no estate, for she was not party to the Writ.

Statutes.

27. H. 1. Stat. 1. cap. 1. De finibus leuatis. Exception against a fine, that the plaintifes or defendants, or their ancestors, were al∣wayes seised of the lands contained in the fine shall not from henceforh be admitted in the parties to the fine or their heires.

The fines shall two dayes in the weeke be publiquely and solemnly read, and all pleas cease in the meane time.

5. H. 4. cap. 14. All Writs of Couenant and other, whereupon sines be leuied, the

Dedimus potestatem, and all knowledges and notes of the same, before that they bee drawne out of the Common bench by the Chirographer, shall be enrolled in a roll to be of record for euer Out of the which exe∣cution shal be had, if the notes or fines shal be imbezilled.

23. Eliz. cap. 3. Euerie Writ of Coue∣nant, or other writ whereupon any fine is leuied, the returne thereof, the Dedimus Po∣testatem and returne thereof, the concord, note, and foot of the fine, the proclamati∣ons and the Queenes siluer: Also euery writ of Entrie in the Post or other writ, where∣upon any common recouerie is suffered, the Writs of sommons ad warrantizandum, and the returnes of all these writs, and euerie Warrant of Attorny may at any mans re∣quest be enrolled. Which enrolment shall be of as great force to all purposes in Law as the things themselues if they were ex∣tant.

No fine, proclamation, or common reco∣uerie shall be reuersed by writ of Error, by reason of false Latine, rasure, enterlyning, misentring of the Warant of Attorny, or of any proclamation misentring, or non re∣turne of the Sherife, or by reason of any o∣ther defect of forme in words, and not in matter of substance.

Fines executed bind all persons if * 1.164 claime be not made within a yeare, there∣fore it is called a fine, Quia finis finem sitibus

imponaebat. And in a fine vpon a render, if * 1.165 the Conisee sue not execution within the yeare but after the yeare, by a scire facias, no strainger need to lay to his claime.

Statutes.

34. Ed. 3. cap. 18. The plea of non claime, of fines from henceforth to be∣leuied, shall not be any barre.

34. H. 7. cap. 24. Euerie fine after the in∣grossing shall be proclaimed in the Court, the same Terme and the three next, foure seuerall daies in euerie Terme, all pleas ceasing the whilest. Which proclamations so made, the fine shall conclude all priuies and strangers, except women couert, per∣sons within xxj. yeares of age, in pri∣son, out of the Realme, or if non saue me∣morie (being no parties to the fine.) So they or their heires take their action or lawfull entrie within fiue yeares after those imper∣fections remoued. Sauing to all persons and their heires (other than parties) the right claime and interest which they haue at the time of the fine. So that they pursue it by action or lawfull entrie within fiue yeares next after the proclamations. And sauing to all other persons such right, title, claime, and interest as first shall grow, re∣maine or come to them after the proclama∣tions, by force of any matter before the fine. So they take their right according to

the law within 5. yeares next after it grow, &c. And those that bee couert Baron, &c. at the time when it groweth, &c. that they or their heires take their actions or lawfull entrie within fiue yeares after those imper∣fections remoued.

Sauing also to all not parties, nor priuies the exception that none of the parties, nor any to their vse, had any thing in the lands at the time of the fine.

31. H. 8. cap. 36. All fines leuied by any person of xxj. yeares of age of lands en∣tailed before the same fine, to himselfe or his ancestours in possession, reuersion, re∣mainder or vse, shall immediatly after pro∣clamation made, be a sufficient bar against him and his heires, claiming onely by such entaile, and against all other claiming one∣ly to his vse, or the vse of any heire of his bodie.

1. Marl. cap. 7. All fines whereupon pro∣clamations be not, or shall not bee duely made (by reason of the adiournement of a∣ny Terme by Writ) shall bee as good as if any Terme had beene holden from the be∣ginning to the end, and proclamations therein made according to the statute.

••1. Eliz cap. 2. Proclamations of fines shall be onely foure times, viz. once in the Terme wherein the fine is ingrossed, and once euery of the three Termes next after.

A femecouert ioyning with her husband * 1.166

in a fine it bindeth her for euer. There∣fore here the Iustices must examine her to see that she do it willingly. For if she say * 1.167 vpon her examination, that the husband did imprison her to leuie the fine, this fine is not to be receiued. A grant by fine of a seig∣niorie, rent charge, rent seck, remaynder, or reuersion, is presently good. Saue for bringing actions that runne in priuitie be∣tweene the Tenant and him. As an action of Waste or Cosimili casu, when the reuer∣tion * 1.168 of Tenant for life is granted by fine, and after Tenant for life a lieneth in fee, a Writ of Eschete or Ward when the Te∣nants seruices are granted by fine, and af∣ter the Tenant dyeth without heire, or his heire within age. But in these cases hee may enter for a forfeiture or eschete, and seise the Ward: and shall also be receiued vpon default of Tenant for life. * 1.169

CHAP. 10.

Of an Assise and Iuris vtrum.

THus much of reall praecipes. Reall si fecerit te securum, are an Assise, •• Iuris vtrum, or other.

An assise is such a reall Plea * 1.170 meerly in possession.

An Assise of ones owne onely possession is an assise of nouell disseisin, or an assise or Nusaunce. An assise of nouell disseisin is for a freeholder against his disseisor, whe∣ther it be of land or rent, or the Baylife of the disseisor if himselfe cannot be found. And beeing of a rent charge, or rent seck, all the Tenaunts of the Land, wee call them terretenants must be named, and the whole land put in view, though hee were * 1.171 disseised by one Tenant onely. If the Lord distreine the Tenant too often for the rent or seruices: that is to say, such as too great a distresse may bee taken for, as rent seruice, &c. but not for fealtie suite of Court, &c. for which there cannot be any too great distresse. And whether it bee the Lord mediat or immediate, the Tenaunt may haue an assise: the reason is, for that the tenant cannot make rescous.

Statutes.

Magn̄ chart. cap. 12. Assises of mort∣dauncester and of nouell disseisin shall not bee taken but in their proper Countie by the Iustice of Assise, and if they cannot bee determined there, they shall be determined by the same Iustices in their iourney: vpon a difficultie of any points, they shall be re∣serued to the Iustices of the Common place and there determined.

Westm̄ 2. cap 18. 13. E. 1. Stat. de Mer∣cator 27. E. 3. cap. 9. Tenant by elegit by Satute marchant, and by statute staple, shal haue an assise or redisseisin.

Westm̄ 1. cap. 47. The gardein or chiefe Lord enfeoffing one of parcell of land in his hand, the heire may presently haue an assise of nouell disseisin against the gardein and tenant, and the gardein shall lose the ward, and all the remnant that he holds of the heires for life.

Westm. 2. cap. 25. A man shall haue an assise for estouers of wood, profit to be ta∣ken in wood of nuts, accornes, and other fruits of Corodies, deliuerie of corne, and o∣ther vittailes and necessaries of money to bee receiued yearely in a place certaine of Toll, trorage, passage, pontage, pawnage, and such like, to be taken in places certaine. Custodidies of woods, parks, forrests, Cha∣ses, warrens, gates, and other Bailywicks, and offices in fee. And in all these cases the writ shall be de libero tenemento. Likewise an assise is giuen for common of Turne land, fishing, and such like. Commons which a man hath appendant to a freehold or without a freehold by speciall deed, at the least for terme of his life.

Westm. 1. cap. 24. An Assise giuen a∣gainst

Eschetor, Sherife, or other Baylife of the King, that seiseth any lands by co∣lour of his office, without speciall warrant or commandement, or certaine authoritie that belongeth to his office so to doe, and double damages to be recouered.

Westm̄. 2. cap. 25. When Tenant for yeares, or in ward alieneth in fee, the reme∣die shall be by an assise, as well against the feoffor as the feoffee, during the life of ei∣ther of them. If by the death of either of them, remedie faile by that Writ, then the remedie shall be by a writ of Entrie.

7. Ric. 2. cap. 10. An assise of nouell dis∣seisin of rent out of Tenements in diuerse Counties, shall bee in the confine of the same Counties.

Westm 2. cap. 25. In an assise, if one na∣med a disseisor do personally alledge an ex∣ception whereby the taking of the assise may be deferred, as that another time an assise of the same land passed betweene the same parties, or that there is a Writ of higher nature hanging, &c. and hereupon voucheth Rols or records to warrantie, and at the day giuen him, he faile of that hee vouched, he shall be adiudged a disseisor without taking an assise, render double da∣mages, and haue a yeares imprisonment. If such exception be alledged by the Baylife in

the absence of his Master, the taking of the assise, and iudgement shall not there∣upon be delayed. But his master afterwards offering to proue before the same Iustices, such an exception shall haue a venire facias for the record, which if the Iustices see, might haue been auaileable to haue barred the plaintife, they shall award a Scire facias against him that recouered, wherein the defendant shall recouer againe his seisin and damages, with his double damages su∣steined since the first iudgement and impri∣sonment of that partie that recouered. In like manner if the defendant, against whom an assise passed in his absence, shew any deed, release, whereupon the Iurie were not, nor could not bee examined, because there was no mention of them in the plea∣ding, the Iustices vpon sight of those wri∣tings shall award a Scire facias against the partie that recouered, and cause the same Iurors to come before them. And the wri∣tings being proued true by their verdict, or by the enrolment of them, like punishment shal be as before.

Westm̄ 2. cap 30. The Iurors shall not be compelled to find a disseisin or no dissei∣sin, but may giue their verdict at large.

Merton. cap 3. A man disseised recoue∣ring his seisin by assise of nouell disseisin, or confession of the partie, and hauing the same deliuered him by the Sherife, if he be

againe disseised of the same Tenement, by the same disseisor shall haue a writ of re∣disseisin to command the Sherife, taking with him the keeper of the Pleas of the Crowne, and other lawfull Knights in pro∣per person to go to the land, &c. and by the first Iurors and other lawfull men to make enquirie. This must not be without special commandement of the king.

Westm̄. 2. cap. 26. A writ of redisseisin shall lye for them that haue recouered by default, redicion, or otherwise, without re∣cognition of the assises and Iuries.

Merton. cap. 3. The redisseisor shall be imprisoned.

Marleb. cap. 8. And not deliuered with∣out speciall commandement of the King, and besides shall pay a fine.

Westm. 2. cap. 26. He shall answer dou∣ble damages, and not be repleuiable by the common writ.

Westm̄ 2. cap. 8. In fine, writs of redissei∣sin must be enrolled in the Chancetie, and a transcripsit thereof shall bee sent into the Excheker in the end of the yeare. An assise * 1.172 of nusance is for him whose freehold is spoiled by any nusance, for if he haue but a lease for yeares in the land, hee shall not haue an assise of nusance, but an action vp∣on his Case.

Statutes.

Westm̄ 2 cap. 24. Giueth an assise of nusance against him to whom the Tene∣ment is alienated after the nusance is made

6. Ric. 2. cap. 3. The plaintife, if he will, may haue a writ of nusance in the nature of an assise, determinable before the Iustices, of one bench or other, or before the Iusti∣ces of assise.

An assise of his ancestors possession on∣ly called an assise of mortdancestor, is for * 1.173 the next heire vpon an abatement after the death at his father, mother, brother, sister, vncle, aunt, nephew, or neice: for of other auncestors, a writ of Ayell, Besayell, or Co∣sinage, and not a mortdancestor lyeth, who was seised in demesne as of a see (a) 1.174 sim∣ple the day (b) 1.175 of his death, though hee were disseised the very same day, and so dy∣ed not seised at all. But vpon lands giuen to one and his second wife (he hauing a sonne by a former) and the heires of their two bo∣dies, their sonne cannot haue a mortdan∣cestor, (after the death of his father ouerli∣uing the second wife) for hee is not next heire, but his elder brother: and therefore, by the Common Law, hee was driuen to a Formedon endescender, which was nothing else but a Writ formed vpon his case. So if the auncestor were seised in taile, the re∣mainder * 1.176 to his right heires, a mortdaunce∣stor lyeth not, for there, of the demesne he is

seised in taile, not in fee.

Statutes.

Magna charta, cap. 12. vide supra.

Marleb. cap. 16. A mortdancestor giuen against the Lord that will not render the land to his ward at full age.

Westm. 2. cap. 4. If a woman hauing no right recouer dower against a gardein, the heire at full age shall haue a mortdaunce∣stor against her.

Gloucest. cap. 6. All the heires whereof one is sonne or daughter, brother or sister, nephew or niece, and the other in a further degree shall ioyne in a mortdauncester.

Gloucest. cap. 3. The heire shall haue an assise of mortdauncestor, if Tenant by cur∣tesie alien and leaue no assets.

An assise which may bee either of his owne or his ancestors possession, called an assise of darrein presentment is vpon a di∣sturbance when (a) 1.177 himselfe or his ancestor did last present: and therefore lyeth for (b) 1.178 tenant in years as well as for him that hath an estate of inheritance, or for life.

Statutes.

Magn. chart. cap. 13. An assise of dar∣rein presentment shall bee alwayes taken

before the Iustices of the Common place.

Marleb. cap. 12. and Westm̄ 2. cap. 2. A * 1.179 Iuris vtrum is such a reall plea founded vp∣on the right for a Parson or Vickar vpon his predecessors altenation.

Statutes.

14. E. 3. cap. 16. A Iuris vtrum, and other Writs according to their case, giuen to Parsons, Vickars, and Wardeins of Chap∣pels, Prouosts Wardens and Priests of per∣petuall Chauntries for lands in frankal∣moigne, as well as to Parsons of Churches, or Prebends.

CHAP. 11.

Of a Writ of Partition, Nuper o∣bijt, and a Quo iure.

THis is the nature of an assise, and Iuris vtrum. Those that follow are either a Partitione facienda, & nu∣per obijt, (which both lye betweene priuies in bloud) or a Quo Iure.

A Particione facienda lyeth betweene co∣percenors to compell particion to be made, * 1.180 but not betweene Ioyntenants, or Tenants in Common, yet partition made there by * 1.181 assent betweene them is very good, but the

husband of one of the coapareeners com∣ming to be Tenant by curtesie, such a Writ lyeth for the other Copercener against him because hee commeth in of the state of his wife; but not for him, against the other. Therefore here for equalitie of partition, things that otherwise cannot may be gran∣ted * 1.182 without deed: As a rent, reuertion, seig∣niorie, way, auowson, composition to pre∣sent by turne, &c.

Statutes.

31. H. 8. cap. 1. Ioyntenants, or Tenans in Common of an estate of inheritance, may be compelled to make partition, and after∣wards shall haue aide to deraigne the war∣rantie paramount, and to recouer for the rate as coperceners (after partition) should.

32. H. 8. cap. 32. Ioyntenants, or Te∣nants in Common for life or yeares, or where one or many hold for life or yeares with another that hath the inheritance, may be compelled to make partition. Such partition shall bee preiudiciall to none but the parties, their Executours and As∣signes.

Nuper obijt lyeth against one priuie in * 1.183 bloud, that entreth after the death of the auncestor that dyed seised in demesne. And therefore beeing but to trie the

priuitie of bloud, view, nor voucher, lyeth not, neither is non tenure any plea.

A Quo iure lyeth for the tenant of the * 1.184 land when one challengeth common, there to trie whether in right hee ought to haue any or no.

CHAP. 12.

Of Debt and detinue, whereof a Writ of Annuitie.

THus farre of reall actions. A per∣sonall action is that where dama∣ges are to bee recouered, for at the Common Law neither shal (a) 1.185 any but the Plaintife recouer damages, (b) 1.186 nor damages lye but in personall and mixt actions, not in reall, as Dower writs of Entrie, sur disseisin, Ayell, Cosinage, &c. for in them damages are giuen by speciall Statutes. Which being but once suspended, or but against one, is gone for euer, and a∣gainst all. As if the Creditor bee made an * 1.187 Executor to his debtor and once administer, or take to wife one of the Executors of his * 1.188 debtor, she hauing administred before, the action of debt is gone for euer. So if two * 1.189 bee bound in an obligation to a fem sole, and after she taketh one of the obligors to husband, the whole dutie is extinct.

Erecutors bringing an action, must do * 1.190

it in all their names, as well of those that refuse administration, as of the rest. But an action may bee brought onely against * 1.191 those that do administer.

Statutes.

9. E. 3. cap. 3. Stat. 1. In a writ of debt brought against diuers executors, they shal haue but one essoine before apparance, and one after apparance. He ot they that do first appeare in the Court at the grand distresse, shall answer to the Plaintife, and the Plain∣tife (if it passe for) shall haue iudgement and execution of the goods of the Testator against all named in the writ, as well as if they had all pleaded. In personell actions growing in respect of a possession in Com∣mon, Tenants in Common are in all re∣spects as Iointenants, for they must ioyne in an action of Trespasse, for a trespasse * 1.192 done vpon their ground: in an action of ac∣count, against their Bailife of a wood, and if one of them dye, the suruiuor shall haue an action of the whole. So if Tenant for life * 1.193 the reuertion to two sisters commit waste, one sister dyeth hauing issue, and the Te∣nant commit wast againe, the issue and her Aunt shall ioyne in an action of wast, and the Aunt sole recouer treble damages for the wast done in her sisters time.

In personell praecipes, damages onely shall be recouered where the thing▪ cannot be had: for (a) 1.194 damages shall not bee reco∣uered

in a Writ of Detinue, if the thing it selfe may be deliuered, damages (b) 1.195 I say to the value of the thing demanded: but da∣mages for the detaining shall.

Personell praecipe quod reddats are debt and detinue.

Debt, when any thing is due vpon a contract.

Which if it be (a) 1.196 money due from one to another in their owne right, is in the Debet and Detinet, otherwise in the detinet onely. As in debt, for the rent (b) 1.197 of Wheate, and Hens reserued vpon a lease for yeares, or of any Chattell, quicke or dead, in debt, (c) 1.198 by or (d) 1.199 against an executour for rent, vpon a lease of land, though it be behind af∣ter the Testators death: or (e) 1.200 vpon a for∣mer recouerie of debt or damages against executors, or for arrerages found in an acti∣on * 1.201 of account brought by them, for all is in the right of their Testator. But against an heire vpon an obligation, &c. of his ance∣stor, it lyeth in the debet and detinet, for the assets which he hath in his owne right, ma∣keth it his proper debt. So for an (g) 1.202 Ab∣bot or Prior vpon an obligation of the pre∣decessor, and though he be behind himselfe onely, and against husband (h) 1.203 and wife vp∣on a recouerie of debt and damages against the wife whilest she was sole.

Statutes.

Magn. Chart. cap. 8. The pledges shall

bee free so long as the principall debtor is sufficient. And answering the debt, shall haue the lands and rents of the principall till they be satisfied.

2. Ric. 2. cap. 12. No Wardein of the Fleet shall suffer any prisoner in execution to go out of prison by mainprise, baile, ba∣ston, without making gree to the partie, vnlesse by Writ, or other commandement of the King, vpon paine to lose his office, and the party to haue a writ of debt against him.

33 H. 6. cap. 10. Euery obligation taken by a Sherife or his ministers by colour of their office, of any person in their Ward by course of Law, shall bee by the name of their office, and vpon condition that the prisoners appeare at the day and place men∣tioned in the Writs, Bills and Warrants, taken in any other forme, it shall bee void.

32. H. 8. cap. 37. The Executors or Admi∣nistrators of him that hath any rent or fee farme in fee in taile, or for life, shall haue an action of debt for the arrerages, in the Testators life time against the tenants that should then haue paied it. Or may distreine (and make auowrie vpon his matter) in the lands so long as they remaine in the posses∣sion of the said Tenant, or of any claiming onely from him.

A husband seised of any such estate •• any rent or fee farme in his wiues right, shall (after her death) himselfe, his Execu∣tors, or administrators, haue the same reme∣die for arrerages due in her life.

So of him his Executors and administra∣tors, that hath a rent or fee farme during a∣nothers life, & cesti qui vi, die, the same be∣ing vnpayed.

Prerogatiue.

When any of the Kings goods come into a subiects hands, whether by matter of re∣cord * 1.204 or enfait, so as hee is accomptant for them, his land all times after is chargea∣ble for the same, and subiect to the Kings seisure, into whose hands soeuer it come, whether by descent, purchase, or otherwise.

Statutes.

34. H. 8. cap 2. The land of the heires of high Collectors of any Taske, Subsedie, or lone, and of the receiuors of Courts, shal be chargeable therewith, as well that the heire hath by descent in fee taile, as in fee simple. And also that that is giuen him by the col∣lector or receiuor couenously, and thereup∣on the heire may haue an action of debt a∣gainst the Executors and administrators of his auncestor, wherein no essoine, protecti∣on, or wager of law is allowable. And haue execution of the goods of the auncestor,

••eing in their hands at the time of the acti∣••n brought.

13. Eliz. cap 4. The lands, profits, and ••ereditaments of euery accomptant, or of ••im that receiueth money for the Queene, ••r her Successors, to be imployed to the vse ••f the Queene, shall bee extended (in the ••ature of a Statute Staple) for the payment of the arrerages. Or the Queen if he do not satisfie within sixe moneths after the arre∣rage found, may sell his land, and the party may haue the surplusage to bee deliuered vnto him, by him that receiued the money vpon the sale, without further warrant: this sale to be of any land, whereof it is found by inquisition, that the accomptant taketh the profits: which inquisition, if it bee not true, the partie grieued after trauerse of the office, and that found for himselfe, shall haue his land againe without any petition, liuerie, or ouster lemaine. If any such buy land with the Queenes Treasure, since the beginning of her raigne, and pay not the arrerages as before, the Queene shal seise & retaine the land according to the rate that the partie had it. This sale extendeth not to to those officers that haue vsed to disburse the arrerages about their charge, or offices which continue, except the Queene com∣mand present payment to bee made, and then they shall haue sixe moneths as be∣fore.

This Statute extendeth not to the accom∣tants,

whose yearely rent, or whole receip•• from the beginning exceedeth not C C C •• nor to Sherifes, Eschetors, Baylifes of liber∣ties. Also the surerties shall bee ratable ac∣cording to their habilities charged for the surplusage onely which remaines not satis∣fied by such sale of the lands of such offi∣cers.

39 Eliz. cap. 7. The former Statute of 13. of Eliz. shall extend to sales to be made after the death of the Accomptant or deb∣tor, and to an accompt made, or debt knowne within eight yeares after his death.

And none shall bee taken a debtor but such officers and accomptants (in this act mentioned) as vpon their accompts fini∣shed (all reasonable petitions being allow∣ed) shall remaine debtor vpon the foot of the accompt.

After one yeare after the accompt made or knowne (all reasonable petitions allow∣ed) the Queene may by her Letters Pat∣tents sell so much as shall suffise to satisfie it, if any land which he had at any time since 2. April. 13 Eliz. or which otherwise are to be sold by the entent of 13. Eliz. The ouerplus, if any bee, shall bee redeliuered without petition or fee. Euery such sale shall bee as good as if the partie himselfe had made it for money, or other valuable consideration by bargaine, and sale, deed enrolled, feoffement, or recouerie with vou∣cher. And shall barre the partie and his heires, and all claiming vnder him, after he

••hall be debtor or person accomptable, and ••ll whom he might haue barred by any re∣••ouerie, and all whose lands are to be sold ••y the entent of 13. Eliz. And shall be good ••gainst the Queene and her Successors, and ••ll claiming vnder them for any charge or ••combrance to the Queene or her Succes∣••ors by the partie.

Prouided, it shall not auoid any lease by ••he Queene in other sort then it should at ••he Common Law, if the Queene were sa∣••isfied.

This act and 13. Eliz. shall extend to vn∣••er collectors of Tenthes and Subsedies of ••he Clergie, shall not impeach any assu∣••ance made before this Parliament, bona fi∣de nor any lease of xxj. yeares, or three liues whereupon so much yearely rent shall bee reserued yearly payable, as hath been with∣in xxj. yeares before, nor customarie estates made according to the custome.

And of this nature is a writ of annuity, which lyeth for him that hath an annuitie (a) 1.205 in fee for life, or though it bee but for yeares be (b) 1.206 it money or other things, as clothes, bread, &c. And is in the debet for them (c) 1.207 all: that is to say, for any other thing as well as for money, not in the deti∣net contrary to an action of debt Detinue * 1.208 when any thing is withholden, which is called De catalis reddendis: if it be for wri∣tings, * 1.209 it is called De chartis reddendis.

CHAP. 13.

Of an Action of account, and an action of Couenant.

PErsonall praecipe quod faciats are ••n action of account, and an action of Couenant.

An action of accompt which is for an accompt to be made: as if one bee made a Baylife of a mannor, &c. then it is * 1.210 against him as Baylife; if receiuors of his rents, debts, &c. then as receiuor: if both Baylife and Receiuor, then as Baylife and Receiuor.

Statutes.

Marleb. cap. 23. Attachment giuen in an action of accompt against Baylifes that withdraw themselues, and haue no lands nor tenements to be distreined by.

Westm. 2. cap. 11. Hee to whom the ac∣compt is to be made, may assigne Auditors to take it, who may immediatly commit to the next gaole the accomptant (beeing found in arrerages) till hee fully satisfie•• whereupon the accomptant finding him∣selfe grieued, may bring the matter by a Scire facias before the Barons of the Esche∣quer.

Prerogatiue.

The King may haue it against execu∣tors. * 1.211 And so can no other man.

An action of couenant which is for a co∣uenant, that is to say, an agreement by deed to be holden.

CHAP. 14.

Of writs where the peace is not broken.

PErsonell Si fecerit te securums are of things done without force, or where force is coupled with it.

Of those without force, some goe not so farre as breach of the peace, others do breake it.

Those that breake not the peace, are these that follow.

Rationabili parte bonorum, for the wife & children of one deceased to haue their part of the goods.

Ʋalore maritagij for gardein in Knight seruice, when the heire at full age refuseth to satisfie him for his marriage: and there∣fore * 1.212 there in the writ are no words of the heires intrusion into the land.

A writ of forfeiture of marriage is to re∣couer the double value against such an heire marrying himselfe within age, without the * 1.213 Lords assent, and at full age putting out the Lord.

Entrusion of word, when the heire of land by Knight seruice entreth, and put∣teth out the Lord, whether during his no∣nage or after his full age, if the heire both intrude and denie the value of the land al∣so, then this writ of Intrusion of ward may be brought for both.

Eiectione custodiae for any gardein by knight seruice or soccage, against a stran∣ger, * 1.214 eiecting him of the land, or bodie of the heire, or both.

Quare eiecit infra terminum for lessee for yeares, against the fe••••••e in fee, or for life * 1.215 of his lessor, for in such a case an Eiectione firme lyeth not against the feoffee or lessee for life, because hee is not the person that doth oust him, but his feoffor. And there∣fore was this writ deuised. And here the terme it selfe shall be recouered, if it be not past, as in an Eiectione firme that commeth after.

Trespasse vpon the case of things not a∣gainst the peace, as Assumpsits for an as∣sumption * 1.216 to be performed, and such like: and this lyeth not against Executors.

Here and in all other actions of Tres∣passe vpon the case, the writ must compre∣hend * 1.217 all the matter of substance, and which is trauersable as clearly as the count, vnlesse it be the day, quantitie of the land, or such like.

CHAP. 15.

Of Trespasses vpon the case, against the peace, deceit, and conspiracie.

THe other that breake the peace but not vi, are called trespasses against the peace.

And of this kinde specially are an action of deceit and conspiracie in the nature of such a trespasse. An action * 1.218 of deceit is vpon any deceit committed, where if it be vpon a non sommons in a plea of land, whereby he loseth the land by default, or such like, it must be brought du∣ring the life of the Sommoners, but not when all the Sommoners and veighors bee dead.

In a writ of deceit the Plaintife shall recouer all that hee hath lost. As if it bee brought vpon a recouerie in a quare impe∣dit, * 1.219 &c. then damages: if in a formdon then the land onely, but no damages, for he lost none in the formedon before.

Conspiracie in the nature of a trespasse is vpon conspiring by many to preiudice * 1.220 a man wrongfully. As if men conspire to endite one, because he arrested not a felon that passed by the Towne of M. And there∣by they cause him to bee endited and amer∣ced in the Leete of R. and F. and to bee

taken and imprisoned for this amercia∣ment till hee bee thereof acquitted in the Leet Or if men affirme and say to one A. that he hath right to such land, and procure him to sue B. tenant of the land, whereby B. is compelled to sell other of his lands for defence of this. Or if men procure one to be endited for hunting in a Parke, whereby he is taken and imprisoned, and put to expen∣ces till hee haue acquitted himselfe of this trespasse.

CHAP. 16.

Of Trespasse whereof Parco fra∣cto, rescuous, and eiectione firmae.

SVch are those without force: coupled with force is an action of Trespasse, for a trespasse done whether in goods or vpon his land. And so if it be of a bodily trespasse, as batterie, &c. But in maime and rape it is called an appeale. An action of Trespasse brought in a Court ba∣ron, * 1.221 whether by plaint in the Court of a mannor, hundred, or Countie Court, or by writ in the County Court, must not suppose it to be done by force and armes, for then a * 1.222 Supersedeas lyeth shewing that a plea of Trespasse Quare vi & armis shall not be hol∣den in a lower Court then before the King

or other Iustices by his commandement. And therefore no Capias lyeth there either in Processe or execution, but in Courts of * 1.223 Record onely.

Statutes.

Marleb. cap. 38. A writ of Trespasse is giuen to the Successors (in religious hou∣ses) for goods taken away from the Prede∣cessor, whether hee commenced action in his life, and died without Iudgement, or though he commenced no action.

And likewise to recouer their owne sei∣sin against intrudors in time of vacation, wherein damages are also giuen.

Marleb. cap. 4. If the Lord distreine for his seruices when none are due, yet he shall not bee punished by fine and ransome, but onely be amerced.

Weshm̄ 1. cap. 20. Trespassors in Parkes and ponds attainted at the suite of the par∣tie, besides making large amends according to the Trespasse and fine, at the Kings plea∣sure, shall haue three yeares imprisonment, and find good suretie not to commit the like trespasse. And if he cannot find suretie, he shall abiure the Realme. Being a fugi∣tiue, and hauing no land nor tenement, whereby to be iustified, he shall be proclai∣med from Countie to Countie, and if hee come not therevpon outlawed, if none do

sue within a yeare and a day, the King shal haue the suite.

5. Ric. 2. cap. 7. None shall make entrie into lands or Tenements, but where entrie is giuen by Law. And in such case not with strong hand nor multitude of people but in peaceable manner.

He that is conuict of the contrarie shall be imprisoned, and thereof ransomed at the Kings will.

15. Ric. 2. cap. 2. At all times that such forcible entries bee made, and complaint thereof commeth to any Iustice of peace, he shall take sufficient power of the Coun∣tie, and go to the place, and if hee find any that hold such place forciblie after such en∣trie made, they shall be taken and put into the next gaole, there to abide, conuict by the Record of the same Iustice, till they haue made fine and ransome to the king.

8 H 6 cap 9 The like for them that make such forcible entrie into lands or o∣ther possessions, or them hold forciblie.

And whether the parties bee present or voided before the Iustices comming, yet he shall enquire of the matter by the people of the same countie in some conuenient place, and shall cause the Tenements so entred or holden to be reseised, and restore the partie (so put out) into full possession.

The partie put out or disseised in this manner, shall recouer treble damages a∣gainst the disseisor, or any feoffee comming

in by fraud.

31. Eliz. cap. 1••. No restitution vpon an enditement of forcible entrie, or holding with force, shall be good, where the partie hath beene in quiet possession three whole yeares next before the enditement, and his estate not ended.

Merton cap. 6. A lay man rauishing, or marrying a Ward within 14. yeares of age shall be imprisoned, besides losse of the va∣lue of the marriage.

Westm. 2. ca. 35. One that hath no right, taking away the Ward, shall be imprisoned two yeares, rhough he restore the child not married, or satisfie for his marriage. Not restoring him vnmarried, or not be able to satisfie for his marriage, (in case hee haue married him) he shall abiure the Realme, or haue perpetuall imprisonment. The forme of the writ both when the heire is in the same Countie or carried into another, is there set downe.

If the defendant there come not vpon the distresse, he shall be outlawed.

The plea shall proceed though the heire dye. If the Plaintife die before the plea de∣termined, &c. a resommons shal be against his executours or heires (if the executours haue no assets) to satisfie the value of the marriage.

Speciall actions of Trespas are these * 1.224 that follow.

De parco fracto for taking a distresse of beasts and other things distreined for da∣mage

fesant, or for rent & seruices behind, not of the pownd, whether common pownd or other place that is a lawfull pownd, and whether hee that so brake the pownd bee proprietor of the beasts, or no. And this ly∣eth for him that distreined, not for him whose the close was, where one distreineth and putteth the beasts by licence into his friends Close, for it is not the pownd of the owner of the soile, but of him that did di∣streine, and the other shall haue an action of Trespasse, Quare clausum fregit.

Rescous for taking such a distresse away * 1.225 before it be impounded. And here the partie must needs haue possession of the beasts, or things so recussed; for if he be disturbed be∣fore he do attach or distreine them, a writ of rescous lyeth not, but an action vpon the case.

Eiectione firme when (a) 1.226 lessee for yeares of land is ousted, be (b) 1.227 it by the lessor or a stranger, where the terme it selfe shall bee recouered if it be not past, as in a Quare eie∣cit infra terminum before.

CHAP. 17.

Of Appeales that touch life.

THese are the Common pleas, an ap∣peale that concerneth life is the par∣ties (a) 1.228 priuate action, prosecuting al∣so (b) 1.229 for the crowne in respect of a felonie,

be it a (a) 1.230 petie Treason, or other felonie whatsoeuer. But for (e) 1.231 high Treason no appeale lyeth.

Appeales of the death of a man are gi∣uen to the heire of the partie slaine, for the husband shall not haue an appeale of the death of his wife, but her sonne. So the pui∣sne * 1.232 brother of the whole bloud shall haue the appeale, and not the elder brother of halfe bloud. But the elder of the whole bloud shall.

Statutes.

Glocest cap. 9. An appeale of the death of a man must be brought within the year.

Magū chart. cap 33. A woman shall haue none but onely of the death of her husband.

2. E. 6. cap. 24. Enditement or appeale good in the Countie where he dies, though the poysoning or stroke were in another.

3. H. 7. cap. 1. One acquitted vpon an en∣ditement of murder, or manslaughter, or as accessarie shall go at large till the yeare and day be passed, within which time no ap∣peale may be brought (if no Clergie be had before) and all aduantages therein saued, as if the acquitall had not beene.

So against the accessories, though the principall were attainted at such suit of the King.

CHAP. 18.

Of writs of right Pattent.

THus far of originall writs, Com∣missionall * 1.233 are those which are not returnable but determinable be∣fore the parties to whom they are directed. And are but in effect com∣missionarie, or meere commissions: of the first sort are those that giue authoritie to a Court baron to hold plea where the sutors are the Iudges, not the sherife or steward. These are a writ of right patent or a Iu∣sticies. In both which the some course is * 1.234 holden, as in those that went before, viz. pledges as before, count as in them, and the same both processe that is in the writs ori∣ginall of that nature. As in a writ of right patent, a praecipe in the nature of a grand cape and petit cape. Triall by battaile or grand assise, &c. in Iustices or viecontiell, writs of debt, accompt, &c. Somons, of tres∣passe, &c attachment, but not a capias in a∣ny case, for that lyeth onely in a Court of record. Also many actions of one nature may be ioyned in one Iusticies with seuerall praecipes. So in plaints, bils, &c.

A writ of right patent is a writ for the (a) 1.235 meere right of Tenements holden of a common person, as land, (b) 1.236 auowson, or rent (c) 1.237 seruice: but not (d) 1.238 rent charge,

rent secke, or a (e) 1.239 Common, to be brought in the Lords Court of that mannor. But (g) 1.240 if hee hold no Court, or otherwise * 1.241 (h) 1.242 yeeld his Court to the King for that time, at the prayer either of the Tenant or demaundant, then it may be in the Kings Court with this clause, Quia B. capitalis do∣minus nobis inde remisit curiam.

And this must shew by what seruice the * 1.243 land is holden. The writ remaineth al∣wayes with the party himselfe So doth no * 1.244 other writ originall. If one priuie in bloud not past the third degree, enter after the death of the auncestor that died in demesne not seised As where a man letteth for life, and dyeth in the life of the Lessee, hauing many coheires, and after that Lessee for life dyeth, and one of the Coperceners en∣treth into al, or where the ancestor is dissei∣sed and dieth, and one copercener entreth into all, there such a writ of right patent, * 1.245 for the other coparcenar, or for the elder brother, if the yonger enter into all, is cal∣led a writ of right De rationabili parte terrae. And therein the grand assise nor battaile * 1.246 shall not bee ioyned for the priuitie of the bloud: nor view nor voucher lyeth, neither is non tenure any plea, for it is to trie the priuitie of bloud, as a Nuper obijt that went before. * 1.247

A woman that hath receiued part of her dower shall haue a writ of right of dowrie patent for the remnant, whereof she is to bee endowed, wherein the same

things are to be obserued that were in •• writ of dower, vnde nihil habet before.

CHAP. 19.

Of Iusticies.

A Iusticies is a writ that giueth the Countie court power to hold plea. And therefore is called a Vicon∣tiel writ, of this sort are.

1 An assise of petie nusaunce is where a mill, or such like, is leuied to ones * 1.248 nusaunce.

All of them are comprehended in these verses; 〈…〉〈…〉 rica ca 〈…〉〈…〉 gultum ges lendi•••• Fab, fur, porta domus, vir, gur, ••••, murus ouile: 〈…〉〈…〉 Et pons; traduntur haec vicecomitibus.

2. For admeasurement of things, as, * 1.249 Admeasurement of dower by the heire, when his gardein or himselfe endowed the wife in his nonage of more than she ought. * 1.250 But by this writ she shal haue no new land assigned to her in dower. But onely there shall be taken from her so much of the land as amounteth aboue the third part of the land, whereof she ought to be endowed.

Admeasurement of pasture by a com∣moner * 1.251 whom another commoner wrong∣eth by putting in more beasts into the Common then hee should, whether the

Common be appendant or appurtenant, so it be to a certaine number, wherein all the Commoners as well those that haue not surcharged, as those that haue, and also the Plaintife himselfe shall be admeasured But it lyeth not for the Lord against his Te∣nants surcharging, for he may distreine the surplusage for damage fesant. And as some say, may haue an assise, for it is a distur∣bance of the profit of his soile. Nor for the Tenant against his Lord surcharging, but he shall haue an assise of common.

Statutes.

Westm. 2. cap. 7. A gardein may haue a writ of admeasurement of dower, and the heire also at full age, if the gardein follow it faintly.

In Writs of admeasurement both of dower and pasture after the great distresse, Proclamation shall be made two Countie dayes, whereupon if the partie come, the plea shall proceed: if not, admeasurement shall be made in his default.

Westm̄ 2. cap. 8. When the same partie after admeasurement another time surchar∣geth, a writ to enquire if that second sur∣charge shall go out either iudiciall, if the former admeasurement were before the Iu∣stices, or otherwise originall out of the Chancerie. And the beasts surcharging the pasture, or their value, shall be answered to the King.

3 A Natiuo habendo for the Lord that * 1.252 hath an inheritance in any villeine, but not an estate for life or yeares, for this writ is in * 1.253 his nature a writ of right to recouer the in∣heritance of his villeine When his villeine departeth away from him. And here if the defendant plead that he is frank, the She∣rife * 1.254 cannot proceed.

4 Rationabilibus diuisis for that Lord whose land or waste hath by little and lit∣tle * 1.255 beene encroched vpon within time of memorie vntill now, by a Lord whose seig∣niorie adioyneth in another ville, against the Lord so encroching. But if the encroch∣ment * 1.256 bee at once, whether now or before time, there an assise of nouell disseisin ly∣eth, and not this writ.

5 A homine replegiando, for one impriso∣ned, * 1.257 or in prison detained where he should not. As being baileable, or claimed as (a) 1.258 a villeine, or in (b) 1.259 ward, where in deed he is frank out of ward.

6 A repleuin for goods or chattels di∣streined, * 1.260 which according to the nature of the plea ministred by the parties, groweth to be either a reall or personell plea, as vpon property claimed then is it personell, if the defendant auow the taking, for seruices or rent behind, &c. then it becommeth reall, &c. and as strong as a praecipe quod reddat, inasmuch as he is to haue a returne. And therefore he shall in that case haue aide be∣fore any plea pleaded, as in a praecipe quod reddat. And this may be both by Writ and * 1.261

plaint in any Court baron, as well as in the Countie Court. And beeing by plaint, * 1.262 though in the Countie Court, it shall not proceed if any thing touching the freehold come in question, as if the defendant auow∣ing for damage fesaunt, the Plaintife iu∣stifieth by reason of Common of pasture.

Vpon the pluries not serued by the Sherifr, his power is determined, and the * 1.263 parties shall plead in Bank.

Statutes.

Marleb. cap. 21. The sherife may reple∣uin beasts not onely without but within a libertie also, if the baylife of the libertie will not.

Westm 2. cap. 2. The sherife or baylife shall take pledges of the plaintife not only de prosequēdo before they make deliuerance of the beasts, but of returning of the beasts if a returne be adiudged, hee that taketh pledge otherwise shall answer the price of the beasts. Vpon a returne awarded to the defendant, the writ De returno habendo shal haue this clause, (that the sherife shall not deliuer them without writ, wherein men∣tion shall be made of the iudgement.) And therupon the plaintife (if he will) may haue a iudicial writ to the sherife to deliuer him the beasts.

Vpon a returne awarded, after which if a returne another time be awarded, there shal be no more repleuins. And if vpon his de∣fault the second time, or otherwise the de∣fendant

be adiudged to haue a new return, the distresse shall remaine yereplegiable.

1. & 2. Ph. & Ma. cap. 12. Euerie Sherife of a Shire (being no Citie) shall at his first * 1.264 Countie day, or within two moneths after receit of his pattent, proclaime in the Shire towne foure deputies at the least, dwelling not past twelue mile one from another, which in his name shall make repleuins as the sherife might do himselfe.

7 Many of the actions that went be∣fore, both for Reall things to be done as, * 1.265 Consuetudinibus & seruitijs: secta ad molendi∣num. Quod permittat: mesne: Dower, vnde nibil habet: and also personall actions, a•• Annuitie, debt, detinue, accompt, coue••••, trespasse, to what summe soeuer, may as well be brought in the Countie by Iusti∣cies, as to bee returnable in the Common place.

CHAP. 20.

Of meere commissions.

MEere commissions are these that follow: Being all of them to bee * 1.266 directed to choice persons, such as it shall please the King.

Oyer and terminer to heare •• determine vpon some heynous trespasse committed, as rebellious assemblies, insur∣rections, * 1.267 and such like. And these are called

Iustices of oyer and terminer.

Statutes.

2. E. 3 cap. 3. It shall be granted onely to Iustices of the one Bench or other, or to Iu∣stices errants.

In these and such like commissions lye properly a writ of Association, and Si non omnes.

Association is a writ for other to be as∣sociate into their company, as fellow Iusti∣ces together with them, and may bee dire∣cted to the Iustices themselues to admit them, or to the parties that shall be so asso∣ciate * 1.268 to signifie their association. That (a) 1.269 to the partie is patent. The (b) 1.270 other to the Iustices to admit him is alwayes close.

Si non omnes is a writ for the rest to pro∣ceed, although the other come not. To bee directed as well to the partie to be associate as to the other Iustices. Patent (c) 1.271 to the partie, close (d) 1.272 to the Iustices.

Ad quod damnum to enquire what hurt it may be to the King, or countrey, or any o∣ther for the King to grant such or such a thing, as a licence to alien in mortmaine, or to alien lands holden of the King in chiefe: or to grant liberties to any Citie or such like.

Perambulacione facienda to enquire of the * 1.273 bounds of two Seigniories or Townes, where an encrochment by little and little is supposed to haue beene made. And this

must bee by the mutuall assent of both the Lords. But if such encrochment were at once, whether now or heretofore an assise of nouell disseisin lyeth, and not this writ.

CHAP. 21.

Of Plaints.

SO farre of Writs, it followeth to speake of Plaints and Bils. Both being in such Courts as hold plea without originall writ.

A plaint is in matters that con∣cerne common pleas.

A plaint of Trespasse brought in a court baron, whether mannor, hundred, or coun∣tie * 1.274 Court, shall not proceed if the freehold come in question. But a suit by writ in the Countie Court may. Therefore in such case vpon a plaint in the Countie Court, the partie hath no remedie, but a writ of Tres∣passe vicontiell, and thereby the Sherife may determine the issue, though the free∣hold come in debate. But that is no remedie in other Court Barons.

CHAP. 22.

Of Bils.

A Bill is in pleas of the Crowne. * 1.275 As an appeale of felonie, mayme, tape, &c. may be by Bill before any * 1.276 one Coroner of the Shire, as well * 1.277 as by writ originall, finding first sureties to the Sherife.

One whose attendance is necessarie in * 1.278 any Court, as the officers and Atturnies there, shall sue and bee sued in forme of plaint, without writ originall, which is cal∣led a Bill priuiledge. But albeit the Cooke or Butler of a Iudge, or other officer of a Court shall haue their priuiledge if they be suedels where, yet a Bill lyeth not against them: But against the officers and Attur∣nies it doth, for they are members of the Court, and their attendance necessarie. And they shall be foreiudged of their office, if being demanded to doe them they make default. But an Atturny in the Kings shall not be sued by Bill, for no Atturny is there of record, nor his presence necessary. Other∣wise it is in the Common place.

CHAP. 23.

Of a Quo warranto.

Prerogatiue.

THe King hath a speciall me〈…〉〈…〉 * 1.279 suite for trying of the right •••• fr••••∣chise vsurped vpon him, called •• Quo warranto: and i•• to be brought before the Iustices of Eyer. Ther∣fore here the allowance of a franchise be∣fore them, bindeth the King Otherwise 〈…〉〈…〉 vpon a suite in the common place.

Statutes.

18. E 1. A Statute of, Quo Warranto. * 1.280 Pleas of quo warranto from hencefoorth shall be pleaded and determined in the cir∣cuits of the Iustices.

18 E. 2. Stat. of Quo warranto. A pub∣like proclamari fac', shall bee awarded to those that claim liberties to know by what warrant they claime them, wherein they shall haue a warning of fortie dayes. The partie that claimeth liberties beeing before the King, it shall not bee in default before any Iustices of their circuits. And beeing impleaded before one or two Iustices, the same Iustice before whom he is impleaded,

shall saue him harmelesse before the other. If he come not at the day, the liberties shal be taken in the Kings hands in name of a distresse, and when they, appeare, be reple∣uied vpon their demand. In which repleuins they shall answer immediatly.

If their ancestors died seised, then the K. shall haue a sommons for them to appeare before the King, or his Iustices of assise: at which day if they come not, nor be as∣soygned before the King, and the King do tarrie longer in the same Shire, such order shall be taken as in the circuits of the Iusti∣ces. And if the King depart from the same Shire, they shall bee adiourned vnto short dayes, and haue reasonable delayes accor∣ding to the discretion of the Iustices, a•• it is vsed in personall actions.

CHAP. 24.

Of Offices for the King.

THese are the suits that euery one may haue. Enquirie for the King is when matter for the King is found by a Iurie called an enquest of office, whether the enquirie bee by officers themselues, as Sherifes, Esche∣tors, Coroners, &c. virtute officij, or virtute breuis, or commissions to them directed. And here the iust number of twelue is not of necessitie, but may bee some∣times * 1.281

more or lesse.

An enquirie is an office or presentment. An office which findeth matter to entitle * 1.282 the King to some possession, for an office is a title for the King, but finding but for a common person it is but an euidence.

If such an office bee found for heredita∣ments, and the King entitled by matter en∣fait, * 1.283 that is to say, by no other record but that onely, as if the office find that I. S. the Kings Tenant died seised, the partie may either trauerse, to say, I. S. was not seised, or confesse and auoid it by saying, that him∣selfe was the Kings Tenant, and disseised by I. S. and so I. S. died seised beeing in by disseisin, &c. And this is called a monstrans de droit. But if the office entitle the King by matter of record, as that I. S. was attainted of Treason, and ceised of certaine lands there onely, a petition lyeth to the King, because this is a double matter of record, and therefore neither can the partie trauerse it by denying I. S. to be so seised, nor haue his monstrans de droit to shew that I. S. did disseise him; &c. or that he enfeoffed I. S. vpon condition, and that I. S. brake the con∣dition before the attainder. All this is to be vnderstood so long as the record of the at∣tainder continueth in his force. But the party may trauerse the attainder well e∣nough, as to say, nul tiel attainder. j. that * 1.284 there is no such attainder, and vpon that be∣ing found for him he shall haue the land, without being driuen to his petition, other∣wise

not, and the reason is because the of∣fice entitling the King by a matter of re∣cord, this title cannot be auoided, but by as high a matter, and not by the plea or alle∣gation of the partie: vpon as high a matter of record to auoid the office, as the office it selfe, a man may trauerse it though the K. be entitled by double matter of record. As being found by office that I. S. was attain∣ted of Treason by Parliament, & his lands forfeit, and that hee was seised of B. acre, whereby the King seiseth it. Now if another act of Parliament restore the heire to all the lands whereof the ancestor was seised, and adnull the auncestors attainder, his heire shall haue this by way of plea without pe∣tition.

If the office be for personall goods, the * 1.285 party may alwaies haue a trauerse or plead any matter vnto it, and so haue his goods againe, vnlesse the eschetor haue accompted * 1.286 for them. And that though the office find the Kings title to be by matter of record: as that I. S was attainted of felony or trea∣son, or outlawed in debt or trespasse, & was at the time possessed of a horse, or of such and such goods, wherein truth the property was vnto a stranger. That stranger may haue a trauerse.

The King vpon office finding for him, if his entry be lawful, and the possessions to be had at the time, is presently in possession, as in wardship or eschete of land found by * 1.287 office: but an office finding that the kings

tenant hath ceased, or his tenant for life cō∣mitted * 1.288 wast, vesteth no possession in the K. for his entry is not lawful, but he is driuen to sue a scire facias. So if an office entitling the K. to things not manuell, that is to say, where of no profit is to be taken, forthwith vntil they fall as a rent cōmon, &c. this ve∣steth no possession till the day. Also he shal be answered of all the mean profits frō the time of his title. As vpon an alienation in mortmaine found by office, from the time * 1.289 of this a lienation appearing of record, vp∣on the kings letters parents adnulled for in∣sufficiencie from the very time of the grant.

An Eschetor here may find offices ex of∣ficio, * 1.290 as well as virtute breuis, or Commissionis. But not of outlawry of felonie, or such high matter of record without warrantie paramount and certification by writ of re∣cord Those virtute breuis o•• commissionis are returnable in the Chancerie. The other pro∣perly in the Exchequer. But may also be re∣turned into the Chancerie.

Statutes.

36. E. 3. cap. 13. Stat. 1. No Escheter shall take enquests of office but indented betweene the Iurors and him, else they are void.

33. H. 8. cap. 22. Set virtute officij onely to finde an office of lands holden of the King of v. l. value or aboue, paine v. l.

8. H. 6. cap. 16. Take enquests but of peo∣ple impanelled by the Sherife, and those enquests must be returned within a moneth after the taking. Paine xx. l. So of Commis∣sioners.

23. H. 6. cap. 17. Take enquest virtute bre∣uis, but within a moneth after deliuerie of the writ, his fees are set downe.

1. H. 8. cap 8. Made perpetuall. 3. H 8. cap. 2. Sit vnlesse he haue lands, &c. to the cleare yearely value of xl. Marks. Paine xx. l.

Delay to take the verdict when the Iurie offer it, paine C. l▪ So of Commissioners.

Be Eschetor in three yeares againe after that yeare ended.

34. E. 3. cap. 13. Stat. 1. A Trauerse gi∣uen to the partie whose lands are seised by office for alienation without licence, or no∣nage of the heire in Ward, it shall be sent to the Kings Bench to be tried.

36. G. 3. cap 13. Stat. 1. Vpon a trauerse or Monstraus de droit, the Chancellor may let him (that tendreth it) the Lands holden to farme finding suretie to do no wast.

8. H. 6 cap. 16. They shall not bee let to farme till the enquests returned, nor in a moneth after, within which time the partie grieued may haue the benefit of the former Statute.

All letters pattents within the moneth shall be void.

18. H. 6. cap. 6. All letters pattents made of lands or Tenements before office found or returned shall be void.

1. H. 8. cap. 16. The partie shall haue 3. moneths libertie after the office returned to tender his trauerse.

2. E. 6. cap. 8. Where an office is found for the King, he that hath interest for years or by Copie in the bond, or any rent Com∣mon, office, fee, or any profits of whatsoe∣uer estate out of the land shall haue them, though they bee not found in the office in such sort as they shold if no office had bin at all. When land is found holden of the K. immediatly, and that it should descend or come to an heire within age, which is or ought to be in the Kings ward, that heire within age may haue a Trauerse.

The partie grieued may haue a trauerse immediatly or after at his pleasure, when one is found heire where another indeed is heire, or when one is found heire in one Countie, and another found heire to the same person in another Countie, or when one vntruly is found lunatick, ideot, or dead

The party grieued may haue trauerse or Monstrans de droit (and shall not be driuen to petition) when it is vntruly found that one attainted of treason, felonie, or praemu∣nire is seised of lands, whereunto another hath iust title of an estate of freehold. And

••lthough the King bee entituled in such ••nds by double matter of record.

Vpon euery such trauerse a Scire facias ••hall go out as in trauerses or petitions be∣••ore, and the defendant therein haue the ••me aduantage that they had in a Scire fa∣••ias in a petition before.

In euerie trauerse pursued by vertue of ••his act, where by the Common Law the ••artie were driuen to petition, two writs of ••earch shall be granted. After Iudgement ••pon a trauerse sued by vertue of this act, if ••t appeare by matter of record that the king ••ath a former title, the same shall be saued ••nto him.

Artic. super chart. cap. 19. When the Es∣••hetor or Sherife seise land into the Kings ••and without cause: vpon ousting of the Kings hands the partie shall haue the mesn ••ssues restored to him.

20. E. stat. De Escheatoribus If the Esche∣••or by Writ out of the Chancerie seise land ••nto the kings hand, and after vpon inqui∣••ition no title is for the King to haue the ••ustodie. An ouster lemain shall be awarded ••or the partie out of the Chancerie.

Prouided, that if any thing afterwards ••ay be found in the Chancery, Exchequer, ••r Kings Bench for the King, a Scire facias ••hall go out against the party. And if the King haue right it shall be answered of all ••he issues from the time of the Eschetors ••irst seising of the land.

23. H. 6. cap. 17. In a Scire facias vpon •• Trauerse against any pattentee no protesti∣on allowable Vpon an office found virtute * 1.291 officij, whereby the King is intituled •••• ones wardship, the heire shal neuer haue li∣uery, that is to say, the land deliuered 〈◊〉〈◊〉 of the Kings hands. But vpon a perfect of∣fice * 1.292 virtute breuis, or commissionis, if it b〈…〉〈…〉 * 1.293 speciall writ or commission, not a gener〈…〉〈…〉 one to enquire of all wards he may. Ther∣fore here the heire is allowed these com∣missions following, or writs in the nature of such commissions: viz. First, for the 〈…〉〈…〉∣ding of an office for the King, then for the hauing of the land out of the Kings h〈…〉〈…〉. Those for the finding of an office are, 1. •• * 1.294 Diem clausit extremum, Mandamus, & Deue∣nerunt, to enquire what lands holden of the King, and what of other, the ancestor 〈◊〉〈◊〉 seised of the day of his death, the value, the day of his death, who is the next heire, 〈◊〉〈◊〉 of what age.

The Diem clausit extremum is to be ••••ed within the yeare after his death. * 1.295

Statutes.

14 E. 3. cap. 12. Lands by ward in the Kings hand shall be let to the next friends of the infant, to whom the enheritance can∣not descend, if they offer speedily after Di∣em clausit extremum in the Chancerie to ren∣der till the Infants age, as other will with∣out fraud.

The Mandamus after the yeare. And * 1.296 ••ere it must further be enquired who took ••e profits. The Deuenerunt is when the ••uncester dyed in ward to the King. 2. a ••uae plura, melius inquirendum, & Datum est ••obis intelligi, vpon defect in offices found by ••ertue of such writs or commissions, but ••hese shall neuer goe out vpon an office ••ound virtute officij. Quae plura vpon leuy∣••ng * 1.297 out of any land in those offices.

Melius inquirendum vpon any other de∣••ect in the office, as if the office were insuf∣ficient (a) 1.298 or vncertaine, or the (b) 1.299 land of greater value, then is found in the office: or ••eld by other seruices, or the Tenant seised of other estate.

Datum est nobis intelligi, vpon an office fin∣ding * 1.300 lands to be holden of any other per∣son, when there is a record to proue that is holden of the King, but this writ shall not be vpon a bare surmise.

Those for hauing the land out of the Kings hand are an Aetate probanda, and * 1.301 a writ of Lyuerie. Aetate probanda is to en∣quire whether he be of full age, or not, be∣fore which time he is not to haue lyuerie. A writ of Lyuerie is after a perfect office, * 1.302 (for no liuerie shall be vpon an insufficient office) finding a tenure in chiefe whether by knights seruice or soccage: and whether * 1.303 the heire then be within age, or of full age. But he that holdeth of the King by knight seruice, but not in Capite, shall not sue liue∣rie. * 1.304 But because none can enter vpon the

King, the heire (if hee were within 〈…〉〈…〉 when he commeth to his full age shal 〈…〉〈…〉 an ouster lemain, to haue all the la•••••• ••••∣liuered to him at once by the King, which * 1.305 is called a liuerie, for if this be sued and •••• mention made of an auowson, all shall •••• reseised, and the King answered of all t•••• mesne issues. And a liuerie must be entire, and not by parcels. The manner thereof i•• * 1.306 this, when the heire in the Kings Ward i•• * 1.307 of full age, he shall haue a writ out of the Chancerie to the keeper of the priuie seale, testifying that he is of full age, and here∣upon he shall haue a priuie seale to the Chamberleine of the King to receiue his homage. And when he hath receiued his homage hee shall haue a writ from the Chamberleine to the Chancellor testifying that he hath receiued his homage, and ther∣upon he shall haue a writ of liuery.

Statutes.

28. E. 3. cap 4. The rents giuen to them that sue liuerie when the rent day cōmeth, how soone soeuer it come after the liuerie.

32. H. 8. cap. 46. The Court of wards ••••∣cted to be a court of record, officers appoin∣ted: a Master of wards that shall keepe the Seale, an Atturny, a Receiuor, two Audi∣tors, two Clarks, a messenger and an vsher.

All wards with their lands, &c. shall be in the ordring of the Court.

They may sell and grant the K. wards or

••heir lands during their minoritie, &c.

The same to passe by the Kings Bill as∣••gned, which shall be a sufficient warrant ••o the Lord Chancellor for the great seale.

They may (without the Kings bill as∣••igned) make good sales of vnderwoods, ••nd appoint timber for necessarie reparati∣••ns of the ward lands, and make leases du∣••ng their minoritie, &c.

Widowes and the fines for their marri∣••ge are in the suruey of this Court.

So are Ideots and their lands, and the Court may let and set their lands.

The grantee of the custodie of Wardship ••f any of the Kings wards shall sue foorth ••is patent within foure moneths next after ••e assignement of his bill, else the bill and ••ffect thereof to be void.

Processe shall be made out of this Court ••gainst wards intruding vpon their lands ••efore liuerie, or ouster lemaine vnder the ••reat seale.

With many other matters concerning ••he authoritie of this Court, and the offices ••hereof.

33. H 8. ca 22. The office of the M. of the ••uerie vnited to the Court of wards.

A suruey or of the liueries added and ap∣••ointed to be the second officer.

A Clarke of the liueries also added.

All liueries suing shall be in the ordring ••f this Court.

None that hath land ouer the clear year∣•• value of v. l. (otherwise it is where the lād

is vnder that value) shall haue liuerie be∣fore inquisition or office, by the King•• Writ or Commission, which shal not pa•••• out of the Chancerie or other Court with∣out a warrant directed to them out of the Court of Wards vnder their hand.

They shall set rates for liueries, and ap∣point dayes of payment, &c. and their Bil•• for liuerie shall bee a sufficient warrant •••• the Lord Chancellor.

A generall liuerie may be sued where the yearly value of the land exceeds not 11. l•• but such generall liuerie shall not be with∣out warrant from this Court. The pa•••••••• for liuerie may be sued foorth within thr•••• moneths next after the assignement of th•• Bill by the King or his Court.

Two being found heires by one and •••• * 1.308 same title, whether twinlings that a•• males, found heire by one selfe same office or diuerse men by seuerall offices found heires to the same auncestour, and by the same title (for if one office find that the K•• gaue land to A. and the heires of his bodie, and that B. is his Cosin and heire, and ano∣ther office findeth that the gift was in ge∣nerall taile, and that foure daughters are 〈…〉〈…〉 heires. There must be a Trauerse and no en∣terpleading, for they claimed not by o•••• ancestor and title) the King shall not 〈…〉〈…〉 liuerie till by enterpleder the truth ••ee ••••••∣cussed * 1.309 at his full age that was found 〈…〉〈…〉 first: for if A. of v. yeares is found heire •••• the kings Tenant, and after by anoth••••

office B. is found his heire, and of full age, B. hath no remedy till A. come of age, and ••hen they must enterplead. And in euery en∣terpleading, an office must bee found for both. And if one be found heire of full age, ••nd after another within age, the enterplea∣ding shall not stay till the full age of the second, because the other was found heire first. Among coparceners the King vpon liuerie shall make partition. And that is for * 1.310 the Kings benefit, because vpon that parti∣tion euery one shall haue some part of the lands in chiefe. For if any should haue for their portion onely the lands holden of o∣ther men, then the King should lose his pre∣••ogatiue in those lands for euer, because ••hey that haue them when they shall dye ••old no lands of the King in Capite. And ••herefore in the writs of liuerie there is a ••rouiso, that euery one shall haue in her ••urpart, parcell of the lands holden in ••hiefe.

CHAP. 25.

Of Presentments, or enditements.

A Presentment is an enquirie fin∣ding some offence against the King, which is also called an Enditement. Therefore it is as it were the Kings ••ction, whereupon the partie shall bee ar∣••aigned, or put to answer by the King: and

tried by another Iurie, which (in case •••• felonie or treason) we call the Iurie of •••• and death.

Euerie strong suspition of such •••• ••••¦fence, though it be in case of felonie, 〈…〉〈…〉¦ring of record hath the force of an 〈…〉〈…〉¦ment: as in an action of trespasse of 〈…〉〈…〉 carried away, if the defendant plead 〈…〉〈…〉 * 1.311 guiltie, and bee found guiltie as a felon: in * 1.312 an appeale of murder, &c. if the Plaintife after declaration be non suit. But so is not * 1.313 the Sherifes returne, as where he returneth vpon one an escape of felonie, &c.

Without which the King can haue •••• * 1.314 suite vpon a wrong done, principally to ••¦nother: but done to himselfe he may.

For (a) 1.315 preuenting of certaine of th•••• offences, that is to say, trespasses to the ••••¦die and felonies, and committing them 〈◊〉〈◊〉 offend to prison till they may bee endited, and so duely punished, as (b) 1.316 to arrest him that maketh an affray and send him to the next gaole, or vpon reasonable cause (as if it be night time, or there be that would res∣cous him, &c.) keeping him in the stockes till he can safely bring him to the gaole: o•• to (c) 1.317 arrest him till he find suretie by obli∣gation: euery hundred hath his Constable. And euery seuerall tithing within the h••••∣dred hath his Borsholder. The conse〈…〉〈…〉 of peace in an hundred is called a Consta∣ble, or high Constable: In a Tything, a pety Constable, Borsholder, Headborough, Thirdborough, Boroughhead, Tything▪man,

or chiefe pledge.

Statutes.

1. E. 3. cap. 16. Stat. 1. For the better keeping and maintaining of the peace, the King will that in euery Countie good men lawfull, which be not maintainers of ill, or barrettors in the Countie, shall be assigned to keepe the peace.

18. E. 3. cap. 2. Stat. 2. Two or three of the best in reputation in the Counties shall bee assigned keepers of the peace by the Kings commission, and at what time need shall be, the same with other wise and lear∣ned in the Law shall bee assigned by the Kings commission, to heare and determine felonies and trespasses done in the same Counties.

34. E. 3. cap. 1. In euerie Countie of Eng∣land shall be assigned for the safe keeping of the peace a Lord, and with him three or foure of the most worthy men in the coun∣tie, with some learned in the Law, and they shall haue power to distreine euill doers, riotors and barrettors, and to pursue, arrest, take, and chastice them according to their trespasse and offence, and to do them to bee imprisoned, and duely punished according to the Law and customes of the Realme, and according to that to them shall seeme best by their discretions and good aduise∣ments,

and also to enforme themselues, and to enquire of all those that haue beene pil∣lers and robbers in the parties beyond sea, and be now come againe, and go wandring and will not labour as they were wont in times past. And to take and arrest all those that they may find by enditement, or by suspition, and to put them in prison, and to take of all them that bee not of good fame (whersoeuer they shall be found) suf∣ficient suretie and mainprise for their good abearing towards the King, and towards his people, and to punish the other duely, to the intent that the people be not by such riotors troubled and endamaged, nor the peace blemished, nor Marchants nor other passing by the high wayes of the Realme, disturbed, nor put in feare by the perill which might happen to them by such euill doers. And also to heare and determine at the Kings suits all manner of felonies and trespasses done in the same Countie, accor∣ding to the lawes and customes aforesaid.

13 Ric. 2. cap. 7. They must be sworne to keepe and put in execution all the Statutes and ordinances touching their offices.

2. H. 5. cap. 4. Stat. 1. The Iustices of peace must make their Sessions foure times by the yeare, that is to say, in the first weeke after the feast of Saint Michael, in the first weeke after the Epiphanie, In the first weeke after the clause of Easter, and in the

first weeke after the translation of S. Tho∣mas the Martyr, (which is the 7. Iulij) and more often if need be. And that the same Iustices hold their Sessiions throughout the whole Realme of England in the same weeks, euery yeare from hencefotth.

2. H. 8. ca. 5. Iustices of peace from hence∣foorth to be made in the Counties of Eng∣land, shall be made of the most sufficient persons dwelling in the same Counties, by the aduise of the Chancellor, and of the Kings Councell, without taking other per∣sons dwelling in forreine Countries, to oc∣cupie such office, except the Lords and the Iustices now named, and to be named by the King and his Councell. And except also the Kings high Stewards of the lands and seigniories of the Duchie of Lanca∣ster, in the North and South parts, for the time being.

18. H. 6. cap. 11 None shall bee assigned Iustice of peace if he haue not lands to the value of xx. l. by yeare. This extendeth not to Townes corporate, Boroughes, &c. nor to persons learned in the Law.

1. Mar. cap. 8. No Sherife shall exercise the office of a Iustice of peace by force of commission, or otherwise in the same county during the time onely that he exer∣ciseth the office of the Sherifewicke.

Any (a) 1.318 man suspecting another of a fe∣lonie

committed or but (b) 1.319 intended, •••• where one lyeth in waite to rob the people that passe by, and draweth his sword vpon one willing him to deliuer his purse, &c. may arrest him (c) 1.320 so as thereupon he com∣mit him to the gaole, as (d) 1.321 common voice and fame that he did the fact, or being pre∣sent where a murder was done, and found with a sword drawne in his hand: or when a robberie was done, and found with some part of the goods; are iust causes of suspiti∣on. So if I would arrest one that hath rob∣bed me, and I. S. say I shall not, this is good cause to suspect I. S. as accessarie: and what is sufficient cause of suspition, and what not shall be tried by the Iustices. But (a) 1.322 neither can any man arrest one for a Trespasse, vnlesse it be the Constable, nor for a felonie, except (b) 1.323 himselfe suspect the partie (though hee doth it by the comman∣dement of one that doth suspect him) and that the same felony bee indeed commit∣ted.

As if it bee for robberie, the selfe same thing must be stolne: for to say, that diuerse * 1.324 beeues were stolne, and because he suspected I. S. to haue stolne sixe beeues, he did arrest him, is not good, without alledging expres∣ly, that those six beeues were stolne.

With enditements of Trespasse, infor∣mation vpon penall Statutes (such as in∣flict a pecuniarie mulct or other penaltie vpon offendors) haue a neare affinitie. Concerning which informations, these

Statutes following were made.

Statutes.

4. H. 7. cap. 20. Where a penall Statute giueth whole or part to whosoeuer will sue a couenous release or recouerie (except it be by action) tryed vpon the point of the writ shall not preiudice him that will sue bona fide.

31. Eliz cap. 5. All informations and en∣ditements where the forfeiture is limited to the Queene onely, must be brought within two yeares after the offence committed, when it is limited to the Queene, and any other that shall sue within one yeare, or (in default thereof) for the Queene within two yeares, except Statutes of Tillage. All brought after the time shall be void: where a shorter time is limited in any penall Sta∣tute the suit must be brought within that time.

27. Eliz. cap. 11. Information for the Queene vpon Statutes of Tillage, shall bee brought within v. yeares after the action accurred vnto her.

31. Eliz cap. 5. Euerie information ex∣cept champerty buying of extortions and offences against

1. Eliz▪ cap. 1. Against forrestallers, &c. must be brought into the county where the

offence was indeed done But officers of re∣cord vsing to pursue informations by ver∣tue of their office may do as before.

31. Eliz. cap. 5. All suits for vsing vnlaw∣full, or not vsing lawfull game, not hauing bowes or arrowes, vsing any art or my∣sterie wherein hee hath beene brought vp, shall be sued and prosecuted in the general quarter Sessions of peace, or Assises of the same Countie, or in the Leet within which the offence is committed, and not out of the same Countie.

29. Eliz. cap 5. The defendant in an in∣formation in the Kings Bench, Common place, or Exchequer, where he is baileable, or by leaue of the Court may appeare by Atturny, may the first day appeare by At∣turny of that Court without putting in baile.

31. Eliz. cap. 10. This former Statute (29. Eliz cap. 5.) shall extend onely to na∣turall subiects and free denizens.

18. Eliz cap. 5. made perpetuall.

27. Eliz. cap. 10. An Informer shall not compound or agree with the partie before his answer nor after his answer, but by the order and consent of the Court: if he delay his suit, or discontinue it, or be non suit, or if the matter passe against him by verdict or Iudgement, then he shall render to the par∣tie

his costs and damages to bee assessed by the Court.

In which act also many other disorders in common Informers are redressed.

Enditements of the death of a man are * 1.325 to be taken before the Coroners. So is it not of any other felonie, for the Statute 4. E. 1. called officium Coronatoris setteth downe the office of a Coroner to be so by the common Law, and the whole order how he is to pro∣ceed in the inquirie.

Statutes.

Artic. super chart. cap. 3. The Coroner of the Shire shall ioyne with the Kings Coro∣ner in inquiring of the death of a man with in the Kings house.

33. H. 8. cap. 12. The Coroner of the kings house shall enquire alone without the Co∣roner of the Shire, by a Iurie of the yeomen officers of the Kings officers.

CHAP. 26.

Of Originall Processe.

HItherto of the first matter of the suit, it followeth to speake of ori∣ginall Processe.

Originall processe is that pro∣cesse which is till the defendant do appeare.

Originall processe is single or 〈◊〉〈◊〉 Single, which is by the possessions 〈◊〉〈◊〉, (land or goods) or onely by the person.

That by the land is of two sorts. First sommons and grand cape in a praecipe q••••d reddat.

The Sommons is a warning of the te∣nant in his land, but not by his goods, 〈◊〉〈◊〉 by a rent seruice, rent charge, rent seeke, or a Common which hee hath, for there the land is anothers by certaine sommoners, two at the least. The Sommons vpon •••• action brought against one as heire, 〈◊〉〈◊〉 * 1.326 be in land that did descend, otherwise it is in any land.

If it bee to recouer the freehold of 〈◊〉〈◊〉 * 1.327 it must be in the same land, else ma∣king default, hee may at the grand cape wage his law of non sommons. But if he ap∣peare, it makes no matter in what land hee be sommoned. A grand cape is a pr〈…〉〈…〉 * 1.328 to take the land into the Kings hands by the view of lawfull men, called thereupon Veyors, as the other are Parnors, with a sommons of the Tenant to answer (a) 1.329 as well to his default, as to the demaundants action, and therefore it is called a grand Cape. Therefore here the Tenant is suffered * 1.330 to saue his default as to say, that he was not sommoned according to the Law of the land, and thereof is ready to do his law; or that he was in prison, or disturbed by wa∣ter, &c.

And the King shall haue the land to his * 1.331

••wne vse, the Sherife being accomptable of ••e issues therof from the default, til iudge∣••ent for the demandant.

Statutes.

31. Eliz. cap. 3. Vpon a Somon in a reall ••ction fourteene dayes before the returne, a ••roclamation of the Somons shall be on a ••onday immediatly after diuine seruice, at ••he doore of the Parish Church where the and lyeth, and returned with the names of ••he Sommoners. And till that done, no Grande cape shall goe out, but an alias & ••luries as the case requireth.

If the Tenant bee returned sommoned, * 1.332 where in deed hee was not, the writ shall abate.

Secondly, it is sommons & resommons, or another like sommons in a mortdaunce∣stor, Iuris vtrum, and an assise of darrein pre∣sentment.

By the goods, as in assises of nouel dis∣seisin and nusance, where the originall pro∣cesse is a Pone per vadios & saluos plegios. A Pone per vadios & saluos plegios is a pro∣cesse to attach the defendant by certaine of his (a) 1.333 proper goods not borrowed, or in pledge vnto him, beeing meere personall chattels, neither a (b) 1.334 chattell reall, as a ward, &c. nor (c) 1.335 parcell of his freehold as a clod of earth, &c. which hee shall (d) 1.336 for∣feit if he appeare not. (e) 1.337 And the Sherife may take those goods with him, or leaue them with the partie at his pleasure. But

whethersoeuer hee doe, the propertie is no•• out of the partie till he make default.

The originall processe by the person is •• Capias (which is processe to imprison him) then an exigent or solemne (a) 1.338 demaund •••• fiue seuerall Countie Courts immed〈…〉〈…〉 following one another. Therefore (b) 1.339 no Al∣locato comitatu lyeth if a Countie be holde•• after an exigent returned, and for not app••••∣ring, iudgement, to be out of the protection of the King and his Lawes, which wee call outlawry. The (c) iudgement whereof i•• to bee giuen by the Coroner in the f〈…〉〈…〉 Countie. For (d) 1.340 at the Common Law there is no outlawrie, but where the writ is vi & armis, as in trespasse, conspiracie, felony, &c. And the reason why it lyeth there, is, be∣cause they are acts founded vpon the sole tort of the defendant. And this is in m〈…〉〈…〉 felonie and treason.

Statutes.

1. H. 5. cap. 5. In euery originall writ of actions personals, appeales, & enditements, in which the Exigent shall bee awarded: to the names of the defendants in such writs, originall appeales and enditements, additi∣ons shall be made of their estate and degree or mysterie, and the Townes, Hamlets and places, and the Counties wherof they were or be in which they were or be conuersant: Otherwise all outlawries thereupon pro∣nounced shall bee none. And before these

••utlawries pronounced, the said Writs and ••nditements shall be abated by the excep∣••ion of the partie omitting the said addi∣••ions.

6. H. 6. c••. 1. All Exigends and outlawries ••pon enditements in the K. Bench of felony ••nd treason shall bee void, if before the ••xigend awarded, a Capias be not directed to ••he Sherife of the Countie, whereof they be ••amed in the enditement, hauing six weeks space (or larger, by the discretion of the Iu∣stices) before the returne.

8. H. 6. cap. 10. In euery enditement or ap∣peale of treason, felonie, or trespasse after the first Capias returned; foorthwith (before an Exigend) another Capias shal be awarded to the Sherife of the Countie where the en∣ditement is supposed to abide returnable, before the same Iustices, &c. conteining the space of three monethes (where the Coun∣ties be holden from moneth to moneth) of foure moneths: (where they be holden from sixe weekes to sixe weekes) by which Ca∣pias the sherife shall be commanded to take his bodie if it be found in his Bailiwick, if it be not found, then to make proclamation (for his apparance) in two Counties before the returne of the writ. Any exigend or out∣lawrie otherwise pronounced shall be hol∣den for none.

10. H. 6. cap. 6. The like is to be obserued

when any such enditement or appeal〈…〉〈…〉¦ken before Iustices of peace, or other ••••¦uing power, shall bee remooued before t•••• King in his Bench, or elsewhere by C〈…〉〈…〉¦rari or otherwise.

6. H. 8 cap. 4. Vpon euery exigent a writ•••• make three proclamations (returnable 〈◊〉〈◊〉 of the returne of the exigent, and the p••••¦clamations to bee made, two in the full Countie Court, the third at the genera•••• Sessions) shall go out to the Sherife of eue¦rie other Countie (viz. than that where th•• action is brought) where the defendant i•• named to be, or late to haue beene; if the Kings writ runne there: otherwise to the Countie next adioyning to that where he i•• so named. Being named late of London •••• Middlesex, the writ of proclamation shall go out to euerie other Countie where he i•• abiding, time of the exigent awarded. Euery outlawrie to the contrarie shall be auoided by plea.

27. E. 3. cap. 2. A writ of Idemtpitate 〈…〉〈…〉∣nis giuen to those whose lands, goods, or chattels be seised by any officer, surmising them to be outlawed (where they be not) because they beare such names as those that be outlawed, for default of good declarati∣on of the surname.

9. H. 6. cap. 4. Such an Idemtpitate 〈◊〉〈◊〉 giuen to their Executors.

If the Exigent be returned not fully ser∣••ed without any folly in the Plaintife, as (a) 1.341 where the defendant after demand at ••o Counties rendreth himselfe in Court, ••d vpon mainprise found hath a Superse∣••eas, and yet appeareth not at the day. But ••therwise it is vpon a (b) 1.342 Supersedeas by a∣••other person bearing the same name, or in ••se where no (c) 1.343 more Counties but foure ••n be holden betweene the deliuerie of the ••rit to the Sherife and the returne, for it is ••e Plaintifes owne follie in the first case to ••ut no difference betweene their names, ••d in the second to take so short a time. ••hough it bee in the (d) 1.344 hustings of Lon∣••on which are holden vncertainly: the ••laintife bringing a new exigent which we ••ll an Exigent de nouo (e) 1.345 before any other Countie holden, but else not, shall haue the ••enefit of the former Counties. And there∣••ore it is called an exigent allocato Comitatu, ••r allocato hustingo, if it be in London, where ••heir hustings are as the Countie Courts.

Outlawry dishableth him from suing a∣••y * 1.346 action.

Statutes.

5. E. 3. cap. 12. In case where the Plain∣••ife hath recouered damages, & he against whō the damages be recouered, is outlawed ••t the K. suit, no charter of pardon shall be granted, except the plaintife be satisfied for ••is damages. When one is outlawed by pro∣cesse

appearance no such charter shall 〈…〉〈…〉¦ted, except he yeeld himselfe before 〈…〉〈…〉¦stices from whom the exigend issued; •••• shall cause the partie to bee warned to ••••¦peare before them at a day. Where〈…〉〈…〉 the Plaintife appeare, they shall plead 〈…〉〈…〉 the first originall, as if no outlawrie •••• beene. If the Plaintife appeare not (and •••• warning be duely witnessed) he that 〈…〉〈…〉 lawed shall bee deliuered by vertue of •••• Charter.

31. Eliz. cap. 3. Vpon euery extent in a ••••¦sonall action a writ of proclamation 〈…〉〈…〉 go out of the same Court to the S〈…〉〈…〉 the Countie, where the defendant at t•••• time of the Exigent shall bee dwelli•••• Whereupon three proclamations shall •••• made; one in open Countie Court, anot•••• at the quarter Sessiōs, the third one m〈…〉〈…〉 at the least before the Quint' exact at •••• doore of the Parish Church where the ••••¦fendant shall be dwelling at the time of t•••• exigent, vpon a Sonday immediatly after ••••¦uine seruice. All outlawries otherwise sh•••• be void.

But before reuersing of any such outlaw∣rie in this respect, the defendant shall put i•• baile, not onely to answer the plaintife in •• new action, but to satisfie the condemna∣tion, if the Plaintife begin his suite within two Termes.

Prerogatiue.

By outlawrie all his chattels, whether ••eall as a (a) 1.347 terme for yeares (and there∣••re there the King may seise the land it ••fe, and plow and sow, and occupie it as ••e term or might) wardship, &c. or per∣••nal, as ones (c) 1.348 goods (the propertie wher∣•• is presently in the king, and he may haue •• detinue against euery man that hath a ••ossession of them) profits (d) 1.349 of land, ••herein he hath a freehold or inheritance, ••iz. rents, corne, mannurance of his pasture ••et in this case he cannot, &c. seise the land ••selfe, nor occupie, plow, or sow it, or grant •• away. And if the party so outlawed make •• feoffement, this feoffement is good, and ••he King after that shall haue the profits ••o more.) But not (a) 1.350 a fornace table fixed ••pon the land with posts, boords, doores, windowes, and such like annexed to a free∣••old are forfeit to the King, not only those in possession, but euen such as hee hath a right vnto, as debts, (viz (b) 1.351 due by speci∣alty, but not (c) 1.352 by a simple contract, for the reason supra fol.) matters in (d) 1.353 account, (e) 1.354 goods taken away, &c. But not dama∣ges which he is to recouer, as by reason of (f) 1.355 trespasse done to his land, (g) 1.356 batterie, false imprisonment, or such like.

In case of mayme there must bee three Capias, two in felonie, as stealth, robberie, and burglarie, one duely in the death of a man, bee it murder or manslaughter, and

high Treason.

Statutes.

25. E. 3. cap 14. The second▪ Capias i〈…〉〈…〉 of felonie must be returned three w〈…〉〈…〉¦ter. In case of Felonie and high 〈…〉〈…〉 they that tarrie the Exigent, though t〈…〉〈…〉 * 1.357 they render themselues, forfeit th〈…〉〈…〉¦tels.

Mixt, is that which is so by his 〈◊〉〈◊〉 as for want of goods hee may res〈…〉〈…〉 person. As first in all Praecipe quod f〈…〉〈…〉, * 1.358 and other personall praecipes, and in per••••¦nall Sifecerit te securums, not being 〈◊〉〈◊〉 the peace, and likewise in all Insti〈…〉〈…〉 * 1.359 vicontiell writs, the processe is a S••••¦mons by the defendants goods, an 〈…〉〈…〉¦ment or Pone per vadios and distresse 〈…〉〈…〉¦nite. Or if vpon the Sommons a Ni••il •••• returned, that is to say, that the partie 〈◊〉〈◊〉 * 1.360 nothing whereby to bee sommoned, th〈…〉〈…〉 continuall Capias.

Distresse infinite is a processe to 〈◊〉〈◊〉 him continually after, till he do appears •••• certaine of his goods, and profit of his lands, or as we vse to say, issues: which 〈◊〉〈◊〉 loseth if he appeare not.

Statutes.

Westm̄ 2. cap. 37. No distresse shall bee but by Baylifes sworne and knowne.

Westm. 2. cap. 39. The plaintife may a∣••erre that the Sherife might haue returned greater issues, and thereupon shall haue a ••udiciall writ to the Iustice of assise to en∣quire of what & how great issues he might haue answered from the day of the purchase of the writ to the day of the returne, and the Sherife shall be charged of the surplusage not returned.

1. E. 3 cap. 5. The like auerment of two smal issues returned giuen against the bai∣lifes of franchises as well as the Sherife.

Vpon this distresse must be returned in ••••••ues the value of all his lands from the Teste of the writ vntill the day of the re∣turne. As if his land be worth xij. C. by the yeare, and a moneths space betweene the * 1.361 Teste and the returne a C. l. issues must be returned vpon him.

And with these issues whether in this case or in any other case of a distresse infi∣nite, as after a venire facias to returne Iu∣rors, &c. the land is charge able into whose hand soeuer it come after. As if issues be re∣turned * 1.362 vpon Tenant in taile, tenant for life, or a man seised in the right of his wife, the land shall be charged after their death: or * 1.363 if an Abbot lose his issues, and after bee translated and made a Bishop, the successor during his life shall bee charged. And in this respect because the land is charged, the beasts of any stranger comming vpon the same land may be distreined for the issues * 1.364 lost.

In such proces •••• these where 〈…〉〈…〉¦mēt or distresse should go out, 〈…〉〈…〉¦dant be a 〈◊〉〈◊〉 clark he 〈…〉〈…〉¦ned by his person, or 〈◊〉〈◊〉 if 〈…〉〈…〉 lay see else. as if the Sherife re〈…〉〈…〉 Cleric•••• bene fieat•••• non hab•••••• 〈…〉〈…〉 Processe shall goe out to the 〈…〉〈…〉 make him appeare by the ••••••es of 〈…〉〈…〉¦nefice, which is called a ve••ire f〈…〉〈…〉¦ricum.

A Capāas lyeth not here against 〈…〉〈…〉 * 1.365 of the Realme. But against a Knight 〈…〉〈…〉¦eth, for a man may be a Knight 〈…〉〈…〉 freehold: So cannot an 〈…〉〈…〉 common e••endement. 〈◊〉〈◊〉 if 〈…〉〈…〉 thing in the Countie where he is 〈…〉〈…〉 partie shall haue an Elegit sure 〈…〉〈…〉 such a Countie where he hath assets.

In a repleuin in the Countie 〈…〉〈…〉 it by writ or plaint, if the go〈…〉〈…〉¦ed * 1.366 away, so as at the Tenants 〈…〉〈…〉 cannot be restored, As if he that 〈…〉〈…〉 driue them to a Fortlet or Castle, or 〈…〉〈…〉 the Countie, &c. whereby the Sheri〈…〉〈…〉 turne vpon the pluries that they are 〈…〉〈…〉¦ned, processe of with e••••••am lyeth, 〈…〉〈…〉 for the plaintife to haue of the others 〈…〉〈…〉 till restitution of his owne.

Statutes.

Westm̄ 1. cap. 17. The Sherife or Bay∣life may take the power of his Countie •••• Bailiwick, and beat downe a Castle or 〈◊〉〈◊〉

••here such beasts are enclosed, if hee that ••oke them will not make deliuerance.

Secondly in Trespasses vpon the case ••gainst the peace, and in all other trespas∣••es, whether it be a writ of deceit or Tres∣••asse vi, or though it bee a Writ from the King himselfe vpon a contempt or breach ••f the peace, as refusing to come at the King, being sent vnto him with money to ••ide him in his warre, and spoiling and wa∣••ting mens lands, goods, and chattels, and other vnlawfull acts doing, and so euerie contempt it is attachment: And if a Capias ••n these cases go ou•• first, and the partie be ••aken thereby, he shall be dismissed, because ••t should bee by pledges, distresse infinite, and vpon a Nihil returned, a Capias, as be∣fore.

Here for contempts a Capias lyeth against Piers of the Realme, as for rescousing of one arrested by the course of the Law, &c. And that is in respect of their disturbance of the Law.

In actions of trespasse with force, whe∣ther a common action or enditement of trespasse, appeale of batterie, or such like, after the attachment returned nihil, it is three Capias, viz. a capias alias and pluries, and then processe of outlarie.

Statutes.

Westm̄ 2. cap. 11. Processe of outlawrie giuen in an action of accompt.

25. E. 3. cap. 17. Such processe shall •••• made in a writ of debt and detinue of c〈…〉〈…〉¦tels, and taking of beasts by writ of 〈…〉〈…〉 and by processe of Exigend by the S〈…〉〈…〉 as is now vsed in a writ of accompt.

7. H. 5. cap. 1. In writs to be purchased ••∣gainst those that forge or make 〈…〉〈…〉 Charters or minuments, and them 〈…〉〈…〉¦claime or cause to be read, like processe s〈…〉〈…〉 be made by capias and exigend, as in w〈…〉〈…〉 of Trespasse.

19. H. 7. c••. 9. Like processe giuen in acti∣ons vpon the case sued in the Kings Bench, and Common place, as in actions of Tres∣passe and debt.

23. H. 8 cap. 14. Like processe giuen in e∣uery writ of annitie as in an action of debt

CHAP. 27.

Of Counts.

THus farre of the beginning 〈…〉〈…〉 suite: The proceeding hath 〈…〉〈…〉 parts, Count and pleading (which two are but one in pleading) 〈…〉〈…〉∣ther meane acts.

A condition (annexed to an 〈…〉〈…〉 * 1.367 freehold) cannot bee alledged in 〈…〉〈…〉 or pleading vnlesse it be by deed: Bee it ••••

••ersonell or reall actions. But a condition ••nit to a lease for yeares, or grant of a ward∣••hip, * 1.368 or other chattell Reall may. Yet the Iu∣••ie vpon the generall issue (as ••ultor•• nul ••isseisin in an assise) may find it if they will. ••nd thereby the partie shall haue aduan∣••ge of it.

Count is a larger declaration for the ••me, place, quantitie of the land, and other ••ch things of the substance of the originall ••rit. And therefore in a formedon of foure ••cres and Count but of one, all the Writ * 1.369 ••hall abate, for it is not pursued. In an ap∣••eale of murder, he cannot declare that the ••efendant traiterously killed him as he was ••oing to succour the King, in his warres ••ith xx. men in his company, &c. for the ••rit supposeth no treason.

Statutes.

36. E. 3. cap. 15. Declarations shall bee ••ood enough if they haue matter of sub∣••tance, though the termes be not apt.

In reall actions which are in the right but not in meere possessorie ones) the de∣••andant must alledge the taking of the ••rofits, we call it esplees, in the declaration. As in pleas of la••d, the taking of the profits ••f the land as errable, meadow, and ••asture, &c. if of a pond, then by taking the ••ish there, as Breames, &c. In a writ of right ••f auowson, the esplees shall be laid in his * 1.370 Clarks taking the great and small tythes.

In an assise of an office as of a filizarie, &c. seisin shall bee alledged by the taking of * 1.371 iiij. d. for making out a capias, or such like. In a quod permittat, by the taking of com∣mon by the mouth of his beasts. In a natiue habendo, esplees shall be alledged in the vil∣leine, viz. in taxing him high and low at his pleasure, in making his profit of him; to driue his cattell, to carrie away his doung, and to do all other kind of villeine seruice, * 1.372 &c. But in a writ of Eschete, in a writ of right sur disclaimer, and such like, which are founded vpon the seigniory, and not vp∣on any seisin of the land it selfe, no esplees shall be alledged. And these esplees where they are to be alledged, must be alledged in himselfe, if the action be brought of his owne seisin in his ancestor; if it be brought of his ancestors seisin, where it cannot be brought but of the seisin of some other, there it must be alledged in those other. As in a formed on en descender the esplees shal * 1.373 be alledged onely in the donee. In a forme∣don en remainder for an estate taile, onely in the particular Tenant to proue the estate taile executed. In a formedon en reuerter, they must be alledged both in the donee and the donee, for there a fee simple is de∣manded. In a lease for life the remainder in taile, and the lessee for life, and he in the re∣mainder in taile dye, the issue in taile shall haue a formedon en descender, and make no mention of the Tenant for life. And therefore the esplees shall be onely alled∣ged

in tenant in taile, otherwise it is in the like case of a reuersion in taile granted.

In stead of Count, a plaint shall bee made in assises of nouell disseisin, and in writs of dower a demand.

CHAP. 28.

Of pleading.

PLeading is the parties debating of the suite.

Euerie plea, as Barre, replication, reioynder, Surreioynder, &c. must be * 1.374 assered to be proued true. By saying in the plea, Et hoc patro natus est verificare, which we call an auerment. But no auer∣ment need to be in auowrie, for it is in liew of a Count and declaration. And the auow∣ant is in a manner actor and plaintife, and to haue a returne,

An aduantage of a matter which cannot be pleaded, shall be saued by protesting not acknowledging it to be true, although mat∣ter pleaded passe against him As if an in∣fant bring an action of waste against his * 1.375 gardein, and appeare by Atturny (which none should do but one of full age) if the gardein take his nonage by protestation be∣cause he cannot plead it, it shall saue him from all mischiefe. But in detinue brought by the Executor of A. the defendant cannot take by protestation, that A. made not the * 1.376

plaintife his executour, for that is the verie ground of the suit, and may be denied by answer, and issue ioyned vpon it. And a pro∣testation is but a sauing to the partie that taketh it, from being concluded of some matter alledged against him, whereupon he cannot ioyne issue.

Pleas are either of the defendant when he is first brought in to answer, or the mu∣tuall pleas of both. In a ioynt action a∣gainst two or more: as in (a) 1.377 an action of debt. But otherwise it is in a writ of (b) 1.378 con∣spiracie against two, for they are seuerall wrongs, one of them appearing shal not an∣swer. But must haue idem dies till the other come in to answer, or (c) 1.379 the suit be finished against him. As by death or outlary in a personall action, debt, accompt, or such like.

An action by or against an Infant as heire, as (d) 1.380 a formdon en descender brought by him, or a writ of (e) 1.381 error against him where his auncestor recouered; but (f) 1.382 not where he commeth in of his owne wrong shall not proceed till his full age, vnlesse it be apparant that by proceeding hee cannot be preiudiced. As in (g) 1.383 a formedon en des∣cender by an Infant, if the tenaunt plead a warrantie with assets against him, the par∣roll shall demurre, for if he trauerse the as∣sets hee should acknowledge the deed of warrantie. But (h) 1.384 if the tenant pleade a re∣couerie in auoidance of the estate taile, the parroll shall not demurre: for there the Court shall plead for him. But (i) 1.385 it shall

not demurre in a writ of entrie sur disseisin by an infant, though the tenaunt pleade a matter enfait, as a feoffement with warran∣tie by the ancestor of the infant, for there the infant claimeth of his owne possession. And if an infant and his ancestor be Ioin∣tenants * 1.386 in fee, and the infant suruiueth: in a praecipe quod reddat against the infant hee shall not haue his age.

Statutes.

Westm 2. cap 40. The husbands heire called to warranty by the alience by a Cui in vita shall not haue his age.

Glocest. cap. 2. An infant holden out of his heritage after the death of his father, co∣sin, grandfather, great grandfather, in an action thereupon shall not haue his age.

Westm. 1. ca 46. In a writ of entrie by the heire of the disseisee the suit shall not stay for his nonage, no more shall it for the no∣nage of the heire of the disseisor, if the dis∣seisee bring his assise, and before the assise passe the disseisor dye. The like incorpora∣tions where the lands go by succession. But in a writ of dower an infant heire shall not * 1.387 haue his age, (a) 1.388 nor the heire of the vou∣chee, in a Quod ei deforceat vpon a recoue∣rie in a writ of dower, for it is in the nature of the fitst writ.

CHAP. 29.

Of Pleas to the Iurisdiction and Person.

THe Defendants first pleas are di∣latorie, or to the action.

Dilatorie, which are before 〈◊〉〈◊〉 plea in barre.

When an action is brought a∣gainst many, they must ioyne in the plea •••• * 1.389 they plead these dilatories, for in a praecipe quod reddat, one cannot demand the view, and the other pray in aide, nor one pray in aide of one man, and the other of another man.

Dilatorie pleas are exceptions, or forrein Aduantages.

Exceptions are such dilatories g〈…〉〈…〉∣ded vpon the matter it selfe of the suit. And are in dishabilitie or abatement. Those in dishabilitie, are to the Iurisdiction or Per∣son. * 1.390 Both which must be before the count made.

To the Iurisdiction, when it is al∣ledged that the Court ought not to hold plea of it.

To the Person, when it is alledged that the Plaintife ought not to be answered, as * 1.391 if he be outlawed, excommunicated, &c. In which latter case the suite shall bee put without day, onely till he be absolued.

CHAP. 30.

Of Pleas in Abatement.

THose in abatement are for any fault in the first matter of the suite, for which cause the defendant may haue oyer of any thing tendred by the plaintife, and not being parcell of the record, as of the writ, condition, &c.

Pleas in abatement are to the Count first, and then to ihe writ, for after pleading to the (a) 1.392 Count or to the (b) 1.393 plaint in an assise, a man may pleade vnto the writ, but (c) 1.394 not to the Count after plea to the writ, but (d) 1.395 to the matter of the Count he may.

And among pleas to the writ, excepti∣ons that arise vpon the view of the writ * 1.396 are to be pleaded before those that are for∣reine, or dehors the writ as non tenure, se∣uerall tenancie, &c.

Pleas to the Count are for insufficiencie, variance from the writ, &c.

Pleas to the writ are for default of forme, false Latine, &c.

By waging of Law of non sommons in a praecipe quod reddat the writ shall abate. * 1.397

In assises of nouell disseism and nu∣sance, in appeales of felonie and Iuris vtrum * 1.398 the defendant may haue many pleas, two, three, or more in abatement. As that there is no such towne, Hamlet, or place knowne

by the name, &c. and if that be not found, then that no Tenant of the freehold is na∣med in the Writ, &c. So in an appeale of fe∣lonie, whether the same matters be of seue∣rall natures (that is to say) one triable by record, the other by the Countrey, as that the appeale was purchased hanging ano∣ther, and also that there is no such Towne, nor Hamlet, nor place knowne out of the Towne and Hamlet as C. whence the de∣fendant is supposed: or all of one nature triable by the Countrey, as that his name is William, where hee is named in the appeale Iohn, and also that there is no such Towne, &c. or that the partie whom he is supposed * 1.399 by the appeale to kill, was dead such a day, which was two yeares before the appeale commenced. Or that the Plaintife is a Ba∣stard: or beeing a woman which bringeth an appeale of the death of her husband, that they were neuer accoupled in lawfull matrimonie.

The writ abating for some cause that cannot be imputed to the Plaintifes folly: as for (a) 1.400 false Latin, non (b) 1.401 sommons of the Sherife, (c) 1.402 Ioyntenancie, and such like: but not for non (d) 1.403 tenure, or (e) 1.404 na∣ming one an Esquire when he is a Knight, himselfe bringing another with speed in the same Court against the same partie, we call it a writ purchased by Iourneys ac∣compts, shall haue all aduantages of the former, for he shall recouer (f) 1.405 costs for the first suit: the (g) 1.406 defendant being Executor

shall be charged with the assets which hee had day of the first writ. (a) 1.407 Being tenant day of the first writ, hee shall not pleade non tenure, beeing (b) 1.408 sole tenaunt then he shall not pleade Ioyntenancie: being (c) 1.409 Ioynttenaunt, th••n he shall not pleade se∣uerall tenancie. But no writ by Iourneys accompts lyeth by or against any other then the selfe same parties, and in the same Court that the former was: for (d) 1.410 if the Plaintife in a seuerall action dye, his execu∣tors cannot haue an action by Iourneys ac∣compts. And (e) 1.411 if two coperceners bring a formedon, and one dyeth, the other as heire to her father may haue a Writ of all by Iourneyes accompts. But as heire to her si∣ster of her part she cannot. So if (f) 1.412 the Te∣nant in the praecipe die vpon a writ of dower brought, or such like, no writ lieth by iour∣neys accompts. But (g) 1.413 vpon the death of one of the Ioyntenants in a praecipe quod reddat, where the other hath all by surui∣uour it doth: lastly, if an assise of fresh force be abated in the franchise, a new as∣sise by Iourneys accompts cannot be in the Guild hall before the Iustices of assise.

CHAP. 31.

Of Oyer of the writ or bond, &c. view and prayer, voucher, garnish∣ment, Enterpleader to the Writ and Sainctuarie.

FOrreine aduantages are delayes without exception to any thing. •••• in all actions, oyer of the writ, &c. In reall actions, view, aide, prayer, and voucher.

View is in reall actions of the thing de∣manded, or of the land whence it commeth, * 1.414 when it is so necessarie as without view the defendant cannot well answer.

Statutes.

Westm̄. 2. cap. 48. From henceforth view shall not be granted but in case where the view is necessarie, as if one lose land by de∣fault, and he that loseth, moueth a writ to demand the same land. And in case where one by an exception dilatorie, abateth a writ after the view, as by non tenure or mis∣naming of the Towne, or such like, if hee purchase another writ in this case, and i•• the case before mentioned, from henceforth the view shal not be granted if he had view in the first writs. In a writ of dower where the demand is of the land that the husband

alienated to the tenant or his Auncestours where the tenant ought not to be ignorant what land the husband did alien vnto him, or his ancestours; though the husband di∣ed not seised, yet from henceforth view shall not be granted. In a Writ of Entrie also that is abated, because the demandant misnamed the Entrie; if he purchase ano∣ther Writ of Entrie, if the tenant had view in the first writ, he shall not haue it in the second. In all writs also where lands be de∣manded by reason of a Lease made by the demandant or his ancestor, as that which he leased to him beeing within age, not whole of mind, being in prison, and such like, view shall not bee granted hereafter: but if the demise was made to his ancestor, the view shal not lie as it hath don before.

Stat. De visu terre & essoyne de seruiti•• Domini Regis: View shall not be granted in a Writ of Ward, in a Writ of Customs & Seruices, in a Writ of Aduowson of a Church (but no•• in case where there be no more Churches than one in a towne, and all of one Saint) in a Writ of Dower, and in a Writ of Nuper obijt.

Ayd Prayer is for Tenant for life, to * 1.415 request him that hath the Inheritance, to helpe him plead. And therefore here the tenant himselfe remaineth alwaies party, & is neuer out of Court: and this Aid Prayer is for the feeblenesse of his estate.

So must an Incumbent, the Patr〈…〉〈…〉 Ordinarie. Else no recouerie against h•••• bindeth the successor or them. And th•••• is in respect of their interest to the Church; the Patron to present, and to haue an I〈…〉〈…〉∣cauit of the tythes: the Ordinarie to adm•••• & to present by Laps. But vpon Aid prayer it doth, though they make default, & con∣fesse the Action.

Statutes.

Westm. 2. Cap. 3. He that is in the ••••∣uersion shall be receiued in default of the Tenant for life. If iudgement be giuen by reddition, or default, hee in the reuersion shall haue a Writ of Entrie after the death of the Termor: so shall the heire where the Tenant was Tenant in Taile.

20. E. 1. De Defensionis Iuris: he in the re∣uersion desiring to be receiued before iudg∣ment, shall finde suretie (as the Court shal allow) to answer the value of the issues of the Tenants from the day of the receit, till iudgement, if it passe for the demandant.

13. R. 2. Cap. 17. The like receit shal be for him in the reuersion vpon the faint pleading of such a Tenant, and hee shall plead in chiefe without delay. And the Iudges by discretion shall giue dayes of grace betweene the demandant and him that is receiued; without giuing the com∣mon

day in plea of land, vnlesse it be by the demandants assent. Suretie of the issue shal be found (as before 20. E. 1.) as wel where the receit is counterpleaded as where it is granted.

Glocest. cap. 11. Tenant for yeares shall be receiued before Iudgement rendred, to say that the action was by couin.

Westm̄. 2. cap. 3. Receit is giuen to the wife in her husband, if he lose her land by default, and the tenaunt that recouered a∣gainst her husband must maintaine his owne right.

Voucher is the calling of one that should warrant in to answer the action. Therefore * 1.416 vpon the vouchees entring into warrantie the tenant is out of Court. And notwith∣standing a recouerie in a Warrantia chartae, yet if he bee afterwards impleaded in an action where voucher lyeth, he must vouch him against whom the recouerie was: else he shall haue no benefit of that recouerie.

Statutes.

Westm̄. 1. cap. 39. In mortdauncestor nu∣per obijt, intrusion, or other such like writs in which land is demanded which should defend, couert, remaine, or eschete, after the death of any ancestor or otherwise, if the tenant vouch, it is a good counterplea to say that the tenant or his ancestor was the first

that entred after the death of him of whose seisin he demands, vnlesse the vouchee bee readie, who if he vouch ouer, the demaun∣dant shall haue his counterplea.

Also in a writ of Entrie in the degrees none shall vouch out of the line. Also in writs of right or of possession (as before) that is a good counterplea, that the vouchee nor his ancestor had neuer seisin of the land or any thing in the seruices by the hand of the Tenant, or his ancestors from the time of the seisin whereof the defendant de∣clares till the writ purchased, so that hee might a feoffement make vnlesse the vou∣chee be present, who if he vouch ouer, the demaundant shall haue his Counterplea. But warrantie of charters lyes in these cases.

20. E. 1. Stat. de vocat̄. ad warrant̄. This Counterplea of voucher that the vouchee nor his ancestors had neuet any thing, so as he could a feoffement make with warranty shall be receiued, although the vouchee be readie to enter into warrantie.

14 E. 3. cap. 18. If the tenaunt voucha dead man, the demandant may auerre he is dead, or there is none such.

Westm̄. 2 cap. 6. If the vouchee counter∣plead the warrantie, and it be found against him, he shall lose the land. Where the vou∣chee * 1.417 losing the Tenant shall recouer in va∣lue

against him any hereditaments that he had at the time of the voucher. And there∣fore a voucher is in liew of an action where the originall processe is Somons ad warran∣tizandum (or (a) 1.418 if one bee vouched within age a Somons ad habendum visum first, and being awarded of full age, then a Somons ad warrantizandum, if he be awarded within * 1.419 age the parroll shall demurre) and a Grande Cape ad valentiam. If the sommons ad war∣rantizandum or habendum visum, alias, and pluries, be not serued, then a sequatur sub suo periculo is to goe forth. And if the tenant cannot get that serued, he loseth his war∣rantie. Therefore it is sub periculo of the te∣nant. And if vpon vouching of an heire the * 1.420 Sequatur sub suo periculo be returned nihil in the land by descent, but that he was som∣moned in land that he had purchased, the tenant loseth his warrantie, for the som∣mons must be in lands descended. But if the Sequatur sub suo periculo, or the Cape ad valen∣tiam * 1.421 bee returned serued, there the Tenant shall recouer in value.

But in exchanges the hereditaments are lyable from the verie time of the Ex∣change.

In partition among coperceners, from the death of their ancestor. So as the wiues dower whom he taketh before any voucher by reason of such an (a) 1.422 exchange, or whom a (b) 1.423 coparcener in gauell kind marrieth at any time, shall be defeated vpon a reco∣uerie in value or pro rata, for so is the reco∣uerie

in value called in the case of copar∣ceners.

Prerogatiue.

The King shall not bee vouched, but prayed in aide of which in that case hath the force of a voucher. As if the King by * 1.424 his letters pattents giue lands to one by this word (Dedi) the patentee shall haue aide of him, because by the same word he might * 1.425 vouch a common person. And when one prayeth in aide of the King in liew of a voucher, the speciall cause must be entred, else hee shall neuer haue in value by peti∣tion.

So of Coperceners.

And if two parceners make partition, one alienateth part of her purpartie, the other is * 1.426 impleaded and prayeth in aide of her co∣parcener, and they lose. In this case she shal recouer according to the rate of the moitie which she lost, whether the other aliena∣ted before aid prayer, or after.

In an assise of nouell disseisin and nu∣sance, voucher lyeth not, vnlesse the vou∣chee * 1.427 be present in Court, and will by and by enter into warrantie.

He that is impleaded in any action wher∣in he may vouch and doth not, shall neuer haue the benefit of a Warrantia chartae.

Aduantages in certaine personell acti∣ons are Garnishment and Enterpleader. Garnishment is vpon a writ of detinue,

when beeing alledged by the defendant to haue beene vpon a bailement by the plain∣tife, and another or for another vpon con∣dition. * 1.428 As that if I. S. doe such a thing the goods shall be deliuered to him (for though the plaintife sole deliuered the goods, and I. S. were a stranger, yet I. S. is to haue ad∣uantage of the condition, and may haue a writ of detinue) if not, then redeliuered to the plaintife, that other shall be brought in to shew whether by reason of that baile∣ment which the defendant so alledgeth both for the (a) 1.429 place, (b) 1.430 condition, (c) 1.431 and matter of the bailement, viz. who bailed it, &c. from which the Garnishee cannot va∣rie * 1.432 howsoeuer it agree or disagree with the * 1.433 plaintifes declaration, himselfe or the plain∣tife ought to haue them, for garnishment is but to know whether the condition, &c. alledged by the defendant were performed or not. And if they were deliuered vpon o∣ther condition then the defendant alledg∣eth, the garnishee is at no mischiefe but the defendant: for the garnishee may recouer them by a writ of detinue, and the defen∣dant by his false plea maketh himselfe chargeable both to the plaintife and to the garnishee. But if the defendant affirme not any certaine bailement for place, condition, * 1.434 matter, &c. as if the plaintife declare of a bailement vpon certaine conditions, &c. and shew which, and that he hath perfor∣med them, and the defendant pray garnish∣ment generally: there the garnishee may

varie from the bailement alledged by the Plaintife, for the defendant hath not affir∣med the same.

Enterpleder is when diuers bringing seuerall writs of (a) 1.435 detinue, ward (b) 1.436 or Quare (c) 1.437 impedit against the same person in the same County, and for the same thing, though (d) 1.438 they varie in time and place of deliuerie (for the place is not materiall be∣ing all in one Countie) so as they varie not * 1.439 in the substance of their declaration, as for to declare of a chest sealed, without alled∣ging any deed in certaine: and the others to alledge a deed in certaine. They (f) 1.440 all shall enterplead together, as much to say, the rest shall answer him that brought the first writ, and therefore shall haue the same * 1.441 day giuen them, if the writs be returnable at seuerall dayes. And the reason of enter∣pleding in detinue is, because otherwise if one recouer against the defendant, yet the others action is not abated, but continueth still. Otherwise it is in a reall action as in a formedon praecipe quod reddat.

Prerogatiue.

The King may appoint any place hee thinketh good to be a safegard for all offen∣dors flying thither, that they shall not bee molested or compelled to answer, whether one flie thither for (a) 1.442 treason, (f) 1.443 murther, theft, or other crime, for which he should lose life or member. And therefore this ta∣king

effect by the Kings grant onely (for touching the Kings prerogatiue so nigh it cannot (d) 1.444 be by prescription) and being an immunitie to one that offendeth the King and his Crowne, is a (e) 1.445 temporall matter pertaining to the temporall coertion & Iu∣risdiction, and need no consecration. But yet when it is consecrate by the Popes vn∣holy Ceremonies, it obteineth the name of Sancturary.

Statutes.

Taking of sanctuary away.

26. H 8. cap. 17. In high Treason.

2••. H. 8. cap. 7. In Petie Treason.

27. H. 8. cap. 4. and 28. H. 8. cap. 15. In treasons, felonies, robberies, and confedera∣ces, in or vpon the Sea, or other hauen, ri∣uer, creeke, or place where the Admirall hath or pretendeth iurisdiction.

32. H. 8. cap. 4. In wilfull murder, rape, robberie, in or neere the high way, or in any house, putting any person within in feare of his life, felonies, burning of houses or barnes with corne, robberies of Churches, Chappels, or hallowed places, and all pro∣curors, and abbettors, and all offences where sanctuarie lyeth not by the Law, or is taken away by any former Statute.

32. H. 8. cap. 12. In Treason, Misprision

of treason, Manslaughter within any of the places or houses of the King, or his heires, or where the King in person is abiding. So in stealing or in feloniously carrying away any plate, iewell or other goods of the king or his successors, aboue xij. d. value.

32. H. 8 cap. 1. made perpetuall. 32. H. 8. cap. 3. 1. E. 6. cap. 12. In murder or poyso∣ning of malice prepenced, breaking of any house by day or night, any person being in it and put in feare thereby, robbing in or nigh the high way, felonious stealing of horses, geldings or Mares, or stealing goods out of any Church or Chappell. But in all other cases of felonie it shall be granted.

2. E. 6. cap. 33. In felonious stealing of ones Horse, Gelding, or Mare.

1. Mar. cap. 6. In counterfeiting coyne that is not the coyne of the Realme, or cur∣rant in the Realme, the Queenes signe, ma∣nuell priuie signet, or priuie seale: and all procuring and abetting.

1. and 2. Ph. and Mar. cap. 4. From these that call themselues Aegyptians.

27. H 8. cap. 19. All in sanctuarie for murder or felonie out of the house, weare a badge in length and breadth ten inches: they shall weare no weapon but their meate kniues, and that at meale onely.

Both these vpon paine of losse of the priui∣ledge.

They shall not be out of their lodging before Sunne rising, nor after Sunne set vp∣on paine of imprisonment two dayes in that sanctuarie for the first time he is so ta∣ken, the second time sixe dayes imprison∣ment, the third time losse of his priuiledge, vpon substantiall and indifferent proofes before the Lord Chancellor. And it is fe∣lonie for any sanctuarie person that shall of prepenced malice make rescues, or resist any officer in imprisoning the priuiledged persons as before. Contracts vnder xl. s. tres∣passe and couenant betweene the priuiled∣ged persons, and other inhabitants in the sanctuarie, shall be determined before the Gouernour.

32. H. 8. cap. 12. All sanctuaries adnul∣led other then Churches and Churchyards, and certaine places named in that Act, and in 33. H. 8. cap. 15. which are appointed pla∣ces of Tuition, for terme of life to the of∣fendors in capitall offences. The priuiled∣ged persons shall euerie day bee called by name, and making default three seuerall dayes with lawfull cause, forfeit the priui∣ledge: committing any offence punishable by death is forfeiture also.

CHAP. 32.

Of Pleas in Barre.

THus farre of Dilatorie pleas.

Pleas to the action are those that go to the bodie of the matter.

And are pleas in barre or c〈…〉〈…〉∣ssions. Pleas in barre are th••se which are to barre the plaintife of his ••••••i∣on, where the Defendant must make de∣fence, as to say, Defendit vim & ini••ri•••• quando. But this defence shall not bee i•• * 1.446 dower assise of nouell disseisin, Per quae ser∣uicia, and attaint.

The Tanant may plead a warrantis i•• * 1.447 bar of him that should warrant if he bring the action. As if there bee grandfather, fa∣ther and sonne, the grandfather is disseised, the father releaseth to the disseisor with warrantie, and dyeth after the grandfather dyeth. Now if the sonne bring an action to recouer the land, he shall be barred by the warrantie made by his father, and this is called a Rebutter.

Statutes.

Glocest. cap. 3. The heire shall not bee barred of his mothers inheritance by the warrantie of the father, being Tenaunt by curtesie, or alienating without fine in the

mothers life time except he leaue assets.

And though the Tenant of the land bee a stranger to the warrantie, as a disseisor or one that commeth in by a recouerie, may plead that hee hath a third persons e∣state and (a) 1.448 rebut, but not vouch by a warrantie made vnto the person. But in (b) 1.449 writs of dower the ancestors warran∣tie is no barre. * 1.450

A warrantie made by the disseisor at the time of the disseisin: we call it a warrantie commencing by disseisin. As the feoffement with warranty of a father, or other ancestor, lessee for yeares or at will, of the demise of his sonne, or of gardein in Knight seruice or soccage, or where one which hath not right entreth into the land, and presently maketh a feoffement with warrantie, bar∣reth not his heire, (d) 1.451 for then his action and right should be lost for euer. But by such a warrantie the heire may be vouched, for that is in the nature of a couenant a∣gainst him as heire to his ancestor. So that if hee haue other land descended to him from the same ancestor, it is reason that he warrant that which he may do, sauing to him his action that he may haue by reason of the disseisin.

In an assise of nouell disseisin and tres∣passe the defendant pleading a title in barre must giue colour of title to the Plaintife, for if either it bee no title, as either in tres∣passe to plead (a) 1.452 it is his freehold, or (b) 1.453 the freehold of I. S. and that he entred by his

commandement, or (c) 1.454 when one prayeth in aide of I. S. or of the King, or Rege in c••••∣suleo, though he entitle himselfe by a lease at will, &c. colour needs not. Otherwise it is (d) 1.455 if hee entitle another to a lease for yeares, and iustifie by his commandement. So (e) 1.456 if a matter that destroyeth the plain∣tifes title, as a release in an assise, in a Trespasse of goods a sale by a stranger in * 1.457 market ouert, and that the plaintife tooke them out of his possession, and he retooke them, there colour needs not.

No more it doth where he pleadeth to the writ and not in bar, though the plea indeed go in bar. As in trespasse of goods, that I. S. was possessed and made Alice S. and I. D. his executors and died. Alice S. tooke the Plaintife to husband and was couert day of the trespasse and after died. So should the writ be brought by I. D. who is yet in full life, not named in the writ, Iudgement of the writ, &c.

And in giuing colour these things must be obserued.

1. It must bee to the plaintife, not to a * 1.458 stranger, nor to the defendant.

Not to a stranger, as in trespasse that A. was seised and him enfeoffed, and I. S. clai∣ming by colour of a deed of feoffement from A. where nothing in truth passed, &c. entred and enfeoffed the plaintife. This is no good colour, for in a stranger matters en fait must alwaies be alledged, as to say, that I. S. enfeoffed A. who enfeoffed the Plain∣tife:

or that A entred and disseised I. S. and enfeoffed the plaintife, &c.

Neither must the plaintife giue colour to the defendant, as where the defendant plea∣deth * 1.459 his freehold, now if the plaintife say that before the defendant any thing had, A. was seised and enfeoffed the plaintife, & the D. claiming by color of a deed of feoffe∣ment frō A. where nothing passed, &c. en∣tred, vpon whom the reentred is not good.

2. It must be of such a possession wherby he may maintaine his action. * 1.460

As in an assise the defendant must giue the Pl. a colour of the Pl. owne possession, and not of the possession of his ancestor, as to say that the plaintife claiming by colour of a deed of feoffement made vnto himselfe where nothing passed, &c. is good. But not to say that the plaintife claiming by colour of a deed of feoffement made to his ance∣stor where nothing passed, &c. for of such a possession in his ancestor he cannot haue an assise.

3. The colour must bee a matter doubt∣full in Law, or otherwise difficult to the * 1.461 lay people, else it is not sufferable, but he shall be forced to take the generall issue, as in an assise to say, Nul tort, &c. or in an acti∣on of Trespasse, not guiltie. As if I bring an assise against you, and you say that you let the same land to one for terme of life, and after granted the reuersion to me, and the Tenant for terme of life dyed, and that I claiming the reuersion by force of the said

grant, where the Tenant did neuer att〈…〉〈…〉 entred, &c. This especiall matter is suff••〈…〉〈…〉¦ble, because that is dangerous to plead 〈…〉〈…〉 tort, &c. For the lay people will thinke th•••• the reuersion passeth by force of the g〈…〉〈…〉 without atturnment. The same Law it i•• where the Tenant saith, that he himsel•••• let the land to the Plaintife, for terme of h•••• life, and then the Plaintife did surrend••••▪ For the lay people know not that a surren¦der may passe by word. The same Law it i•• where the Tenant saith, that the father •••• the Plaintife let vnto him for terme of ano∣ther mans life, and after released vnto hi••▪ And the Plaintife supposing that his father died seised of the reuersion ousted him af∣ter the death of him, for whose life, &c. be∣cause the lay people vnderstand not 〈◊〉〈◊〉 this release doth inure, whether by way of enlargement, feoffement, confirmation, •••• extinguishment. The same Law it is if the Tenant say that the father of the Plaintife enfeoffed him, and afterwards suffered him to occupie at will, and hee supposing, &c The same Law it is to say, that the plain∣tife claiming as bastard and eldest sonne entred, because the lay people thinke th•••• the eldest sonne, though he bee a bas••••rd, may inherit. The same Law it is to say th•••• such a one was seised and infeoffed, the ••••∣nant and the plaintife claiming by a deed of feoffement made before where nothing passed, &c. because the lay people thinke it a good feoffement, though it bee made

without liuerie. But where the speciall mat∣ter is not a matter in Law, or difficult, there the Tenant or defendant must take the generall issue, as if the Tenant say, that hee was seised vntill he was by the pl. disseised, whereupon he re-entred, this plea is not sufferable, because all men know that the Tenant in this case is no disseisor: or other∣wise if he say, that the plaintife claimes as younger sonne, because that euerie man knoweth, that the younger sonne cannot inherit before the elder. The same law it is if he say, that he leased to the father of the plaintife for terme of life or yeares, or for terme of another mans life, and the plaintife supposing that he had died seised of an estate in fee simple, entred, &c. be∣cause in these cases the Lay people doe wel vnderstand that he is no disseisor: & there∣fore in these and in al other like, the tenant shall take the generall issue.

In reall Actions for the méere right when it is in respect of a disseisin done to him or his ancestors, and not founded vp∣on a seigniorie, as a Writ of Eschete, a writ of right sur disclaimer, &c. the Tenaunt * 1.462 cannot trauerse the seisin, but may tender halfe a Marke to the King to haue it in∣quired by the Iurie: and being found that the demandant was not seised in the time whereof he counteth, that shall barre him for euer.

Prerogatiue.

The tenant cannot tender halfe 〈…〉〈…〉 against the King.

The heire or Executours in an Act〈…〉〈…〉 brought against them, where they are c〈…〉〈…〉¦geable pleading a matter in their 〈…〉〈…〉 knowledge (a) 1.463 which goeth in perp〈…〉〈…〉 bar, As for the heire to plead that nothing discended to him from the same Ancester▪ the Executour to plead a release or acqui••∣tance made vnto himselfe, or that hee was neuer Executor, nor neuer administred •••• Executor shall be charged as in their 〈…〉〈…〉 perdutie, if it passe against them. Other∣wise it is if the Executor pltad Mis〈…〉〈…〉, or another Executour aliue not named i•• the Writ, (for that is no barre but onely •••• the Writ) or Oriens inter mains (for that is no perpetuall bar, for a Scire facias lyeth if they come to haue lands after) or a release, or acquittance to their Testator: or Nie•••• le fait of their testator, for they cannot haue knowledge of it. Otherwise it is also if ••••∣ther * 1.464 the heireor Executor bee condemned by a Nihil dicit, or confesse the certaintie of the assets. And in the first case, as whe•••• the heire pleadeth nothing by discent, 〈…〉〈…〉 which is found against him, the plainti〈…〉〈…〉 shall haue an Elegit of the moitie of all 〈◊〉〈◊〉 lands as well purchased, ar by discent: 〈◊〉〈◊〉 in a Formedon en Descender, if the Ten〈…〉〈…〉 plead in barre a warrantie with assets, and the demaundant said Rien per descent, and

it is found that he hath by discent, he shall be barred of all that hee demandeth by his Writ (of how small value that bee which descendeth) because the issue that he tende∣red is false.

In Assises of Nouel Disseisin, Nusance, Mortdancester, Iuris vtrum, & in Endite∣ments and Appeales of Felony, the defen∣dant may plead in abatement, & ouer in barre, or take the generall Issue also. As in a Mortdancester, (a) 1.465 that he hath nothing but in right of his wife; or (b) 1.466 I. S. holdeth parcell of the land in demaund, not named in the Writ: and if that bee found against him, then that he hath abated. In an assise of Iointenancie, or Misnomer, which are in Abatement, or any matter in barre: (vnlesse he confesse a putting out of the Tenant, or that which amounts to as much, as by plea∣ding a release, or such like) and if that bee not found, then he hath done no wrong. In a Iuris Vtrum the Tenaunt may plead * 1.467 Misnosmer of the Demaundant, or that a stranger holdeth parcell not named. And if it be found, &c. that the demandant hath receiued his fealtie, &c. And if it be found, &c. then that it is his Lay fee, and not Franke Almoigne, &c. In an Enditement, or Appeale of death, misnomer of himself, or no such towne; and to the felonie not guiltie. But he cannot plead a Release, and to the felonie not guiltie: for by the Re∣lease he hath in a maner confest the felony: * 1.468 also he may plead a matter in bar, & vpon

that found against him, then plead not guiltie, though he pleaded it not before.

In Assises of Nouel Disseisin, and Nu∣sanc, * 1.469 he may plead a speciall matter that amounteth but to the generall Issue. As in an Assise of Rent by Deane and Chapter, to say that Rescous was made to the prede∣cessor, and no seisin in him, or in any Suc∣cessor since that time. Though in the pre∣tence of him that pleadeth it, it amount to no more, but that the plaintife was neuer seised, so as he could not be disseised.

Vpon (a) 1.470 Enditements of Felonie 〈◊〉〈◊〉 Treason, otherwise it is in Appeales, the defendant being put to answere, which is called an Arraignement, is not allowed councell, if he denie (b) 1.471 the fact. For either his conscience perhaps wil sting him to vt∣ter the truth, or otherwise by his gesture, countenance, or simplicity of speech, it may be discouered; which the artificiall speech of his Councell learned, would hide and colour. Also himselfe can best answere to the fact. But if he plead Sanctuarie, or any other matter in Law, then he shall haue * 1.472 councel. A presentment in the left or she∣rifs turne, after the day of the presentment bindeth the partie for euer, and is not tra∣uersible but in cases that touch ones Free∣hold: as that one ought to clense the High∣way * 1.473 or such like rationae tenure suae: therfore the course is to remoue such presentments into the kings Bench by a Certiorari, where he may trauerse them.

CHAP. 33.

Of Confessions.

COnfession is when the Defendant confesseth the plaintifes action to be good. The Defendant confessing an enditement of felonie may accuse others, in which case wee call him an Approuer. And one cannot (a) 1.474 be an Ap∣prouer but in felonie or Treason. And that vpon an (b) 1.475 enditement onely, and though it be (c) 1.476 after not guiltie pleaded, yet before verdict hee may become an approuer. But vpon an appeale one cannot bee an appro∣uer. Nor without (d) 1.477 confession of felonie before the Iudges, which confession must be (e) 1.478 vpon an enditement precedent (that the Iudge may at any time giue iudgement to attaint him) not vpon an arrest for felo∣nie of the same offence. But he cannot ap∣proue one that (f) 1.479 receiued him, for it must be of such an offence as he himselfe did to∣gether with the other: nor one that (g) 1.480 a∣betted and procured him to commit the fe∣lonie, for he confesseth not himselfe guiltie of the same offence, in as much as he can∣not abet himselfe.

Statutes.

Westm. 1. ca. 12. Notorious felons which

will not put themselues vpon an enquest at the Kings suit against them, shall be put to a paine sort & dure, as those which refuse to be tried by the Law of the land.

One that flyeth to a church (a) 1.481 or church∣yard, & confesseth before the Coroner when he cometh, the certaintie of any barre, felo∣nie, where life or member is to be lost be∣fore he be thereof attainted, whether vpon an enditement or appeale, as that he hath * 1.482 stolne such or such a thing, killed such or such a man. But at the first taking of the * 1.483 Church, it is enough to say he taketh it for a felonie, which hee hath committed gene∣rally may abiure, and so saue himselfe But not in case of high Treason, or petie trea∣son, for the Coroner cannot attaint him vp∣on his confession thereof, because he is not his Iudge of such a crime: neither can be his Iudge as he is Coroner, although he haue a Commission from the King to do it. And if the offendor, being in the Church, will of purpose confesse a felony, to the entent to escape of treason, yet if the Coroner haue information that he is charged with a trea∣son, he may not suffer him to abiure. And that for the Kings aduantage, who is to take more benefit if he be attainted of trea∣son then of felonie, because of the eschete. The same law it is of petie treason, for the Coroner can no more record his confession of that then of high Treason: neither may the Coroner if he be enformed that he haue committed petie Treason, suffer him to ab∣iure

of felony, and that in respect of the hei∣nousnesse of the offence, notwithstanding * 1.484 the King be to haue no more aduantage in petie treason then in felonie. Neither can a man abiure for petie larcenie, because he is not to suffer death for it likewise.

Abiuration is his (a) 1.485 oath before the Co∣roner himselfe to depart the Realme for e∣uer at the time and place set him: going the direct way thither: tarrying there but one floud and ebbe if he can haue passage: and till he can so passe going euery day into the sea vp to his kners to assay if he may passe ouer, and if he cannot passe within xl. daies then to put himself againe into the Church as a felon, &c. And this abiuration is an (b) 1.486 attainder in it selfe (and that the strongest that can be, being by his owne confession) and a (c) 1.487 forfeiture of his lands. And there is a writ of eschete of land for felonie, pro qua abiurauit regnum. And therefore he (d) 1.488 that is hanged vpon iudgement against him, and becommeth aliue againe, cannot abiure (but an abiuration in that case is an escape) for one cannot haue two iudge∣ments for one offence.

Statutes.

9. E 2. Stat. de artic. cleri cap 10. Those that abiure may not be molested whilest they are in the street, and whilest they be in the Church their keepers may not tarrie in the Churchyard.

9. E. 2. Stat. de artic. cleri. ca. 15. A Clark

shall not be compelled to abiure, but to haue his Clergie.

21. H. 8. cap. 2. Immediatly after confes∣sion, and before abiuration, the felon shall be marked in the hand with an hote Iron with the signe of an A. The felon must take his passage at such a day and time as the Coroner shall limit, else he shall lose the benefit of sanctuarie, and be taken out and further ordered according to his demerits, without restitution to sanctuarie.

22. H. 8. cap. 14. If he be found out of the place, he shall dye for it.

22. H. 8. cap. 12. All abiurations shall be made to certaine priuiledged places within the Realme, mentioned in that Act, there to remaine during his life.

CHAP. 34.

Of Replication, Reioynder, Surre∣ioynder, &c.

THe mutuall pleas of both are the debating before issues, or an issue it selfe.

Debating before issue, is the dis∣cussing of the materiall things, to draw it to some one issue. As in an action of trespasse or an assise, if the Defendant claime by a lease from the Plaintife to A. who granteth his terme to B. and to B. the

defendant, the Plaintife must answer onely to his owne lease, for the assignements of A. are but conueyances and not materiall. But in an assise if the defendant deriue his interest from a stranger, and that A. was seised and enfeoffed B. who enfeoffed C. and C. the Tenant: there the Plaintife may trauerse any of the meane conueyances, for they are all materiall.

Therefore repugnance of a plea vnto it selfe is a fault in pleading, as in an action of Trespasse of his house, and wals broken downe, the Defendant cannot plead tou∣ching the house, not guiltie, and as to the breaking downe of the wals iustifie, for this carrieth a repugnancie in it, inasmuch as the house and the wall are all one thing.

So is a departure, where he forfeiteth not the matter of his plea that went before, but commeth in with a new matter. As if the reioynder be a matter puisne, vnderneath the matter of his barre, not aboue and go∣ing before it. As in an action of Trespasse, the Defendant pleadeth a descent vnto him of the land, the Plaintife saith, that after the descent the Defendant enfeoffed him. Now if the defendant reioyne that the feoffement was vpon condition, and he en∣tred for the condition broken; this is a de∣parture for the matter of the barre, that is the descent, is before the matter of the re∣ioynder, that is to say, the entrie for the con∣dition broken, whereby the feoffement is auoided. So if in an assise, the Defendant

pleadeth the feoffement of I. S. and the Plaintife make title to himselfe by descent, and that he was disseised by I. S. who en∣feoffed the defendant: or that he enfeoffed I. S. vpon condition who brake the conditi∣on, and afterwards enfeoffed the defendant, &c.

Now if the defendant say that after the disseisin (or condition broken) and after the feoffement of I. S. to the defendant, the Plaintife did release to the defendant, or confirme the estate of the defendant, this is a departure, for that is a matter that grow∣eth after the feoffement pleaded in bar. But if he plead such a release or confirmation from the plaintife to I. S. that is no depar∣ture, for it is a matter before the feoffement, or in an action of trespasse for goods, if the defendantentitle himselfe by the gift of I. S. and the plaintife saith, that himselfe was possessed till I. S. tooke them from him, and gaue them to the defendant. Now the de∣fendant may say that after the taking the plaintife gaue them to I. S. who gaue them to the defendant: for although the defen∣dant might haue pleaded these things at the beginning, yet in asmuch as it is pursu∣ing and fortifieth his barre, and no puisne matter vnderneath the title of his barre, but eigne and aboue the matter of his bar, ther∣fore it is no departure. So a plea in barre which is intendible at the Common Law, cannot bee maintained by a matter of cu∣stome, or by statute Law. As in an assise the

tenant pleadeth in bar a deuise vnto him∣selfe of the land being deuisible by the cu∣stome, the plaintife saith that the deuisor was within age at the time of the deuise. Now if the tenant said that by the custome there an infant of 15. yeares of age may make a deuise: This is a departure, for the custome pleaded in bar shal be entended of those that may make a deuise by the Com∣mon Law So if in an action of trespasse the defendant plead in bar a lease for 50. yeares from a house of Religion, and the plaintife auoid it by reason it was made within a yeare before the dissolution, and so void by the Statute 31. H 8. Now if the defendant will alledge that by the same Statute it is prouided that all such leases shall be good for xxj. yeares, and so maintaine the lease to be good for so many yeares, this is a depar∣ture: or if one plead a fine, and that being auoided because the parties to the fine had nothing, wil maintaine the fine to be good by the Statute 1. R. 3. because he had leuied the fine cesti qui vse. Lastly, when matters are pleaded which offer seuerall issues, that is termed a double plea, and is a fault in pleading As in an assise to plead a feoffe∣ment of the ancestor with warrantie. In debt vpon a simple contract to plead pay∣ment and an acquittance. In an assise to plead diuers descents of the land in fee sim∣ple, for euery of them requireth a seuerall answer. But in an assise to plead diuerse

descents in taile, is not double, for one an∣swer maketh an end of all, that is to denie the gift in taile. So as the matter cannot come but to one issue: So in an action of debt to plead fully administred, and so riens enter mains, for one answer, assets enter mains serueth.

So is it also of two or three matters toge∣ther with the general conclusion, as in debt vpon an obligation to say, that hee is not lettered, and the deed was read vnto him in another sort: and further, that he deliuered it vpon a condition which is not perfor∣med, so not his deed. So to iustifie an arrest for twentie causes of suspition of felonie, is not double, for one answer serueth Des•••• tort demesne. No more to assigne in a Writ of error as many errors as appeare in the re∣cord, for in millo est erratum answereth then all. But to assigne diuerse errors en fait is double, for these are to bee tried by the Countrey. And the reason of all this is, because vpon diuers issues ioyned, ••f one be found for the party, and another against him, the Court shall be inueigled, and not know how to giue iudgement, whether for him or against him. But to plead a feoffe∣ment with warrantie, and relye vpon the warrantie onely is not double, for he can∣not plead the warrantie without the feoffe∣ment.

Of the first sort are Replication, reioin∣der, surrender, &c.

In an assise against many, if each (a) 1.489 take the whole tenancie seuerally, a plead (b) 1.490 seuerall matters in barre: or (c) 1.491 one Nul tort and the other in barre: otherwise (d) 1.492 it is if one plead in barre, and the other Ioyntenancie by deed: the Plaintife at his perill must chuse his Tenant. And then after issue for the whole, that, viz. the Te∣nancie, * 1.493 shall be first enquired of. And being found for the Plaintife, then the other issue shall bee enquired. Being found against * 1.494 him and no title made against the tenant indeed, the writ shall abate.

In an action of Trespasse meere tran∣sitorie, although the defendant iustifie by any speciall matter, as in a (a) 1.495 Trespasse of goods, by commandement of I. S. whose the propertie is, in (b) 1.496 assault and battery, or an (c) 1.497 appeale of mayme, in his owne de∣fence vpon the plaintifes first assaulting of him: in false imprisonment by (d) 1.498 beeing Constable of the Towne, and that the plaintife brake the peace, or (e) 1.499 by an arrest for suspition of felonie, or by (f) 1.500 the com∣mandement of I. S. to seise the bodie of the Plaintife in ward, by reason his ancestour, whose heire he is, held of I. S. by Knight seruice, &c. yet the Plaintife may take issue that it was done De son tort demesne, which is to say, wrongfully by the Defendant without answering to that matter. But if the iustification be by matter of writing or record, as in false imprisonment, by (a) 1.501 a warrant of Iustice of peace to arrest him, or

a (b) 1.502 Capias that came to him as Sherife to take the body of the plaintife, or if it be any (c) 1.503 title or licence (d) 1.504 from the plaintife, there de son tort demesn is no plea, but the speciall matter must be answered. So (e) 1.505 al∣wayes in a trespasse locall, as of his close broken downe, &c. if the defendant entitle a stranger to the land, whether to the free∣hold, or though it be but to a lease of it, and iustifie by his commandement. And like∣wise in a (f) 1.506 repleuin which is reall, the ti∣tle or speciall matter must alwayes be tra∣uersed. If it bee a trespasse vpon land, the defendant iustifying in some other land then the Plaintife meaneth, the Plaintife may make a new assignement, setting forth the place more specially. As if the defendant * 1.507 iustifie in a place called A. as his freehold, the plaintife may say the place where, &c. is called B. other then the place called A. & then the defendant may plead all anew.

CHAP. 35.

Of Issues.

AN Issue is when both the parties ioyne vpon somewhat that they re∣ferre vnto a triall to make an end of the plea. And it is of the fact, or law of the fact, which is commonly termed by the generall name of issue, when the pro∣per contradiction of that which one alled∣geth is set downe by the other, which is properly termed a trauerse. As in debt vpon an Obligation for performance of coue∣nants,

and the defendant plead he hath per∣formed all, the plaintife must shew some in * 1.508 certaine which the defendant hath broken, whereupon issue shall be ioyned: but can∣not reply that the defendant hath not per∣formed all. For in Lodgicke there be three kinds of contradictions: Generall, when both the propositions are generall, as, All the couenants are broken, None of the co∣uenants are broken. Particular when one is generall, the other particular, as, All the couenants are broken, Some of the co∣uenants are not broken, None of the coue∣nants are broken, Some of the couenants are broken. Proper, when both the proposi∣tions are proper, as, This couenant is bro∣ken, This couenant is not broken. The two * 1.509 former make no issue in our Law, but the latter onely: and euery issue is of an affir∣matiue and a negatiue. After which if any insufficiencie of pleading appeare in the re∣cord, whether the issue be ioyned thereup∣on, which we call a Ieofaile, or no, the par∣ties must replede or begin a new where the first defect was. And in this case a Iury * 1.510 is readie at the bar that to passe vpon the issue, shall be discharged. As if the barre be good, and the replication ill, and issue taken vpon it, the iudgement must bee that the plaintife must make a new replication, and the barre shall remaine. So if the barre bee good, and likewise the replication, but the reioynder ill, and the issue taken vpon the reioynder, the defendant must make a new reioynder, and the replication shall remain.

But if the bar be il, and the replication good and the issue taken vpon it, now they must plead all a new because the barre which is first of all is vicious.

But no repleader shall be in an assise, •• the Plaintife haue disclosed a sufficient ti∣tle: for in an assise no land in certaine is de∣manded, but an assise onely prayed. And therefore where a sufficient title is disclo∣sed the Plaintife shall haue iudgement vp∣on seisin and disseisin found for him. And no repleder shall bee notwithstanding that the Tenant haue made a (a) 1.511 vicious barre, or (b) 1.512 misreioyned. Otherwise it is if the Plaintife take issue vpon an insufficient barre. * 1.513

If the tender of this issue come on the Plaintifes part, the forme is, Et hoc pe••i•• quod inquiratur per recordu, vel patrid, &c. If on the Defendants part, then it is, Et de hoc point se super recordum illud vel super patriam.

Issue in a writ of right cannot bee ioy∣ned, * 1.514 we cal it ioyning of the mise, vpon th•• meere right, but by the partie himselfe, not by Atturny.

Where the Plaintife in his replication * 1.515 maketh title at large, without trauersing o•• confessing and auoiding the barre, or any way medling with it, the Tenant 〈◊〉〈◊〉 ioyne issue vpon the title by saying, Ʋ〈…〉〈…〉 assise sur la title, that is, Let the assise co〈…〉〈…〉 * 1.516 vpon the title, which is called a pleading •••• the assise at large. This to bee vnderstood

where the title is by a matter en fait, but not record, or done (a) 1.517 in a forraine Countie, for they are not triable by the assise. * 1.518

And in a personall action, whether tres∣passe * 1.519 or repleuin where iustification is made * 1.520 for damage fesant, for that is meerely in the * 1.521 personaltie, where the title of the land com∣meth in question, lyeth not till issue ioyned. And yet in that case it neuer lyeth for Te∣nant for life, but onely for tenant for years, bailyfe, &c.

Prerogatiue.

Aid in these actions shall be of the King * 1.522 before issue ioyned onely, though the King be seised but in his naturall capacitie, as in the right of his Duchie of Lancaster.

CHAP. 36.

Of Triall by Iurie.

THis being of a matter en fait, that is to say, done in the Countrey. For * 1.523 a Iurie shall not be charged with a matter in Law, nor it shall not bee giuen in euidence vnto them. But if they will take knowledge of the Law, they may giue their verdict generally, viz. * 1.524 where a verdict may be giuen at large. As vpon an issue of Nul tort nul disseisin. So the Iurie may finde of themselues matters of

record if they will, and although it be not giuen in euidence. And therefore a fine or common recouerie may bee giuen in eui∣dence without shewing it vnder the great seale, or seale of the Court, or vouching the Roll of the recouerie, for the Iurie may find them if they will. But peraduenture they are not bound to find it vpon paine of at∣taint, vnlesse it be shewed vnder the seale is triable by the oath of twelue free and * 1.525 lawfull men of the same Countie, indiff••∣rently chosen, whom we call a Iurie, and the making of the Iurie is called a panell or array. And these must be xij. for the verdict of more or lesse, as of (a) 1.526 xj. or xiij. (b) is void: free, not (c) 1.527 villeins, nor (d) 1.528 aliens: lawfull, for one outlawed may not be a Iu∣ror, because he is not Legalis homo, (e) 1.529 and of the same Countie, for vpon (f) 1.530 a trespasse locall, as grasse cut downe in the Countie of D. where the trespasse was in the Coun∣tie of S. if the defendant plead not guiltie, (as he may) and the Iurie find him guiltie in the Countie of S. the verdict is void. But * 1.531 if they find them guiltie generally, an at∣taint lyeth. But vpon an issue whether the Executors haue assets in their hands, the Iu∣rie may find the assets in any Countie, for it is but a transitorie thing. Lastly, the Iu∣rie must be indifferently chosen, so as nei∣ther the Sherife that maketh it (for that is good cause of challenge to the panell or ar∣ray) nor the Iurors that are to passe vpon it (for that is good cause of challenge to the

pols) beare either fauour or malice to any partie. As for the Sherife to put in any Iu∣ror at the parties denomination. And either * 1.532 the Sherife or Iuror to be of his (a) 1.533 fee, or his (b) 1.534 seruant, or within (c) 1.535 his distresse, whether his tenant (imediate or not imedi∣ate, as (d) 1.536 holding of I. S. who holdeth of the partie) or not his tenant, as where he is * 1.537 to come to the parties hundred, or the party * 1.538 hath a rent charge going out of his land. To be of kin to the partie, for Cosinage in the Sherife is a good principall challenge to * 1.539 the array, and in a Iuror to the Poll: al∣though it be in the ninth degree, and that one cannot be heire to the other of the land in variance. As if husband and wife be vou∣ched (which is entendible for the warran∣tie and land of the wife) and the Sherife or Iuror be cosin in the ninth degree vnto the husband; the reason whereof is, for the affe∣ction which the law entendeth that the one doth carrie to the other. And because one may be heire vnto the other of other land. And therefore it is a good challenge in per∣sonall suits also: To haue beene (a) 1.540 arbitra∣tors on his part in that matter. To (b) 1.541 haue an action of batterie depending against the partie, or an action of debt by the partie a∣gainst him, &c. The Iuror to haue (c) 1.542 ta∣ken money for his verdict to haue (d) 1.543 giuen it before hand, or to haue (e) 1.544 passed formerly in the same matter: & such other things as of themselues carrie fauour or malice in them, & are called principal challenges. So

of those which onely do induce it: as to be the parties (f) 1.545 master, (g) 1.546 councellor, Attur∣ny, (h) 1.547 Steward of his mannor, to (i) 1.548 sue him in an action of debt, &c. to be (k) 1.549 of the same societie with him, as if both be of Graies-Inne, or the (l) 1.550 partie to be within his distresse, or (m) 1.551 he to haue passed before vpon such another matter.

Statutes.

Westm̄ 2. cap. 38. In an assise no more shall be sommoned but xiiij.

Men aboue lxx. yeares of age continual∣ly sicke, or sicke at the time of sommons, shall not be returned in Iuries or assises: nor any that dwell out of the Countie, vnlesse it be in grand assises.

Artit̄ super chart̄ cap. 9. 34. E 3. cap. 4. Iuries shall bee made of the next people of the Countie.

11. H. 6. cap 1. None dwelling in stewes shall be of a Iurie.

9 E. 3 cap. 4. A deed pleaded in a fran∣chise shall bee tried in the Countie where the action is brought.

2. E. 6. cap. 24. Vpon stroke or poyson in one Countie, the partie dying in another, an enditement and triall may bee in the Countie where hee dieth. And an appeale

sued there and tried by xij. men of the same Countie.

Likewise the accessaries in one Countie to a murder or felonie in another Countie, shall be indited, arraigned, &c in the coun∣tie where the offence of accessarie is done.

33. H. 8. cap. 20. Enditement of a person lunaticke, being at the time of confession of treason before the Councell, of perfect memorie, and so certified by them, shall be tried by freeholders of any Shire to bee ap∣pointed by commission. And the triall whe∣ther he be culpable or not, shall be there in his absence.

33. H. 8. cap. 23. Confession of Treason, Misprision of Treason, or murder beeing made before the Councell, or three of them, or they vehemently suspecting one of such an offence, it shall be enquired, heard, and determined by Commission out of the Chancerie, in the shire or place limited in that Commission, by such lawfull persons as shall be returned; wherein no challenge for the shire or hundred shall be allowed.

28. H. 8. cap. 13. & 27. H 8. cap. 4. All trea∣sons, felonies, robberies, murders, and con∣federacies within the Admiralls iurisdicti∣on shall bee enquired and determined in such forme of Law as if it were done vp∣on, the land by commission directed to the Admirall and three or foure other assigned

by the Lord Chancellor in the shire limited in their commission, where no challenge shall be for the hundred.

32. H, 8 cap. 4. The enditement and ar∣raignment of treasons and misprision of treasons in Wales, or else where the writs out of the Chancerie of England run not, shal be in such shires, and before such com∣missioners as the King shall appoint.

35. H. 8. cap. 2. All treasons, misprisions, or concealments of Treason done out of England, shall be enquired, heard, and de∣termined in the Kings Bench by men of that shire where the Bench sitteth, or else before Commissioners, and in such shire as shall be limited by commission.

1. & 2. Ph & Mar. cap. Trials for treason shall be according to the course of the com∣mon Law.

23. E. 3. cap. 3. No enditor be put in en∣quests vpon the deliuerance of enditees of felonies or trespasse.

Westm̄. 2. cap. 38. None shall bee put in assises or Iuries triable in their owne shire, but such as haue xx. s. a yeare freehold, nor in assises triable out of their owne shire, vn∣lesse they haue xl. s.

21. E. 1. De ponend' in Assisa. None shal be put in assises triable out of their owne shire but such as haue lands to the yearely value of C. s. nor in assises triable in their owne shire, vnlesse they haue xl. s.

2. H. 5. cap. 3. None shall passe in an en∣quest vpon the triall of the death of a man, nor betweene partie and partie in plea reall or personall, whereof the debt and damages amount to xl marks, vnlesse he haue lands of the yearely value of xl. s.

33. H. 8. cap. 13. In Cities, Boroughes, or corporate Townes, an inhabitant beeing worth xl. l. in goods, shall be admitted in triall of murders and felonies in euery Ses∣sion and gaole deliuerie for that Towne, though he haue no freehold.

35. H. 8. cap. 6. made perpetuall.

2. E. 6. cap. 32. The cause of hauing xl. s. value, must be inserted in the venire facias: and bee of lands out of antient demesne. Where that clause needs not, the Iurors must dispend some land of freehold out of antient demesne within the Countie where the issue is to be tried.

27. Eliz. cap. 6. Where the Iurors retur∣ned in the Kings Bench, Common place, Exchequer, or before Iustices of assise, ought to haue xl. s. freehold, there they shall from hencefoorth haue xl. l. yearely freehold out of antient demesne, in the Countie where the issue is to be tried. And the clause thereof inserted in the venire fa∣cias. These two Statutes extend not to cor∣porations.

27. Eliz. cap. 7. No Bailife of libertie shal returne to the Sherife, or deliuer vnto him

the name of any person to be returned in a Iurie without some addition whereby the partie may be knowne. Neither shall the Iurie, &c. returne any Iuror out of a liber∣tie without some addition whereby he may be knowne, nor within a libertie with other addition than that is deliuered vnto him by the Baylife, &c.

8. H. 4. cap. 3. Euerie Iuror returned with∣in the Countie of Middlesex shall be called the fourth day of the returne, and appea∣ring at the same day, their appearance shall be recorded, and they shall not be amerced nor lose their issues.

5 E. 3▪ cap. 10. A Iuror taking of the one part or of the other, shall neuer be of Iurie more. And besides imprisoned.

34. E. 3. cap. 8. The partie or any stranger may sue him for it.

38. E. 3. cap. 12. And both the Iurors, and the embraceors to procure it, being thereof attainted, shall pay ten times so much as he hath taken.

Westm. 2. cap 30. Assises of nouell dis∣seisin, mortdancester, and attaints, shall be taken thrice a yeare by two Iustices assig∣ned, associated with one or two discreet Knights in the Shire where they come.

In euerie shire before their departure they shall appoint the day of their returne: And adiourne the assises if the taking be by

any meanes deferred.

Also in assises of mortdancester beeing respited, they may adiourne into the Bench if need be. And when it commeth to the ta∣king of the assise, the Iustices of the Bench shall send it backe againe to them.

All pleas in either of the Benches that re∣quire small examination, shall be determi∣ned before them.

27. E. 1. cap. 4. Statutum de finibus leuatis. Such enquests being taken, shall be retur∣ned into the Bench, and there iudgement shall be giuen.

Enquests and Recognisances determina∣ble before Iustices of either Bench, shall be taken in vacation time, before any of the Iustices before whom the plea is brought, being associate to one Knight of the same shire, where such enquests shall passe, vn∣lesse it require great examination.

12. E 2. cap. 3. Stat̄ Eborat̄. Enquests in pleas of land (that require no great exa∣mination) shall be taken in the Countie before a Iustice of the place where the plea is accompanied, with a substantiall man is the countrey, Knight or other, so that a cer∣taine day be giuen in the Bench, and a cer∣taine day and place in the countrey, i•• pre∣sence of the parties demanding of the same.

Enquests in pleas of land that require no great examination, shall bee taken in the Countrey (in manner abouesaid) before

two Iustices of the Bench.

2. E. 3. cap. 17. All such enquests in plea of land shall hereafter be taken as well of the request of the tenant, as demaundant.

42. E. 3. cap. 11. Nisi prius shall not bee granted before the name of the Iurors re∣turned.

7. R. 2. ca. 7. In all manner of pleas where an Nisi prius is grantable of office after the great distresse returned, and thrice serued before the Iustices against the Iurors, and thereupon the parties demanded if any of the said parties will pursue, or if the parties refuse to haue Nisi prius in the case, then at the suite of any of the Iurors that is present a nisi prius shal be granted for ending of the quarrell.

14. E. 3. cap. 16. The Nisi prius in the Kings Bench shall be granted before a Iu∣stice of that place, if any Iustice of that place may well go into those parts. Else be∣fore a Iustice of the Common place, &c. otherwise the chiefe Baron being a man of the Law, if, &c. or else before the Iustices assigned to take assises in those parts. So that one of them be a Iustice of one Bench or other, or the Kings Serieant sworne.

18. Eliz. cap. 12. The chiefe Iustice of England vpon issue ioyned in the Kings Bench or Chancerie, and the chiefe Iustice

of the Common pleas, and chiefe Baron of the Exchequer, vpon issues ioyned in their seuerall Courts (or in their absence two o∣ther Iustices or Barons) or made Iustices of nisi prius for the Countie of Middlesex, in all issues ioyned to set in Westm̄ Hall with∣in the Terme, or foure dayes after.

4. E. 3. cap. 11. confirmed 7 Ric. 2. cap. 15. Iustices of nisi prius shall enquire, heare, and determine, as well at the Kings suite as the parties, all mainteyners, conspirators, ma∣kers of confederacie, and committors of Champertie, and all other things contey∣ned in the sayd Article, as wel as Iustices of Eyer should doe, if they were in the same Countie.

14. H. 6. cap. 1. Iustices of nisi prius haue power in cases of felony and treason as wel vpon acquittaile as attainder, and thereup∣on to award execution.

Stat̄ Eborat̄. 12. E. 2. cap. 2. Vpon a deed denied where witnesses are named, processe shall be awarded against the wit∣nesses if they come not at the grand di∣stresse, or vpon a nihil non inuentus returned, yet the taking of the enquest shall not bee deferred. If he come at the grand, and the enquest remaineth vntaken for some cause, the witnesses shall haue idem dies, and not appearing, then the first issues returned vp∣on them shall be forfeit, and the enquest taken, notwithstanding their absence.

An enquest shall be taken notwithstan∣ding the absence of witnesses dwelling in a franchise where the Kings Writ runneth not. Foure of the Iurie must also be of the * 1.552 same hundred, and so many are enough though it be in an attaint where the Iurie is xxiiij. In an information vpon the Statute of pluralitie of farmes, for hauing 7. Farmes in 7. Townes in foure seuerall hundreds: If foure of the Iurie haue any thing, or dwell within any of the foure seuerall hundreds it is sufficient.

Statutes.

15. H. 8. cap 6. made perpetuall. 2. E. 6. cap. 32. Sixe sufficient Hundreds shall bee returned in euerie Iurie.

27. Eliz. cap. 6. If two sufficient hundreds appeare in any personal action, it is enough.

If the thing in issue lye in the notice of two seuerall Counties, and not of one on∣ly, for (a) 1.553 onely two Counties may ioyne, and no more. And two may though they be not the next, as Kent & Deuonshire, the Iurie shall be made (b) 1.554 equally out of both: That is, sixe out of the one, and sixe out of the other. And this wee call a Ioynder of Counties, as in (c) 1.555 an action of trespasse, if the defendant iustifie for common appen∣dant to land in another Countie: or in a writ of anuitie and Count of a seisin in a∣nother Countie then where the Church is, out of which the annuitie goeth.

Statutes.

7. Rit̄. 2. cap. 10. An assise of nouell dis∣seisin of rent out of the Tenements in di∣uerse Counties, shall be in the confine of the said Counties.

But vpon an enditement of an offence against the Crowne, the triall shall neuer * 1.556 be by ioynder of Counties. Therefore an enditement that one stroke I S. in one coun∣tie, of which stroke hee died in another Countie, is no good enditement, because it cannot be tried, for that the Counties can∣not ioyne in an enditement. And therefore before the Statute 2. and 3. E. 6. (which al∣tereth the law in this case) they were wont to carrie the corps into the Countie where the stroke was. But otherwise it is in an ap∣peale.

But if the Defendant plead in any acti∣on, as in a homine replegiando, or though it * 1.557 be but in a writ of trespasse or debt, that the Plaintife is a villein regardant to a mannor of his in another Countie, yet the same shall bee tried in the Countie where the writ is brought. And this is in Fauorem libertatis.

28. E. 3. cap. 3. confirmed. 8. H. 6. cap. 28. In euery suit betweene an Alien and a De∣mesne (though the King bee a partie) the one halfe of the Iurie shall be the Aliens. If so many be in that visne, and if there be

not to that number, then so many as bee there not parties, nor with the partie to the suite.

Where a Peere of the Realme is 〈◊〉〈◊〉 to the action, a Knight must be returned to * 1.558 the Iurie.

Statutes.

Magn̄ chart̄ cap. 29. A Peere of the Realme vpon an enditement of felonie or treason shall be tried by his Peeres.

20. H 6. cap. 9. Duchisses, Baronesses, Countesses, sole or married, shall be tried (in such cases) as Peeres of the Realme. In a Court of Pipowders the triall is by * 1.559 the Merchants.

The Iurie in a writ of right is called the Grand Assise. Being foure Knights, •••• other in default of Knights, chusing a Iu∣rie of 12. vnto them. So note xvj in all, for the grand Iurie is alwayes aboue xij. and therefore no attaint lyeth for him that lo∣seth in a writ of right, because it passeth by the grand assise which is more then xij.

Challenges are here allowed for th•• parties (if they will) both to the array 〈◊〉〈◊〉 to the pols. And whether to the pannell or the pols, are to be tried by some of the Iu∣rors, if it be (a) 1.560 before any Iurors swor••, the Court shall chuse the Triors, when a∣ny Iurors are sworne they must trie it.

Challenge to the array is when the Iu∣rie is not sufficiently empanelled vpon 〈◊〉〈◊〉

cause of challenge to the Sherife, and af∣terwards to the Coroners, who by reason * 1.561 of iust exception against the Sherife made or should make the array, the (d) 1.562 Court must chuse certaine named Esloirs, (e) 1.563 where the parties shall neuer haue chal∣lenge to the whole array. Challenge to the poll is when any of the Iurors are insuf∣ficient to passe vpon the triall. This chal∣lenge must be taken before the pannell be * 1.564 perused: For if the plaintife challenge one, and when the pannell is perused, the defen∣dant challenge the same person, yet the plaintife may release his challenge, & then the Iuror shall not be drawne, because the defendants challenge is nothing worth, in that it was not made till the pannell was perused, and shal be tried by two of the Iu∣tors chosen by the Court, against whom * 1.565 no challenge shall be admitted, but chal∣lenges that sound not in reproch of the iu∣ror, as to be (a) 1.566 of counsell with the party, or (b) 1.567 within his distresse, to haue (c) 1.568 no∣thing within the hundred, or (d) 1.569 not suffi∣cient freehold, shall be examined vpon his oath, which we call an examination vpon a voyri dire. He that challenged the array if it passe against him, or (which is as strong) if he release it, shall neuer challenge the pols without shewing cause presently, which shall de tried out of hand. Before the Clark * 1.570 passe thorough the pannell. So shall not a∣ny other challenge. And after challenge to a Iuror for one cause, as fauour, &c. which

passeth against the challenger, he shall 〈◊〉〈◊〉 challenge him for another, as for hauing nothing in the hundred▪ &c.

In enditements and appeales of 〈◊〉〈◊〉 the defendant may challenge xxxv. I〈…〉〈…〉 * 1.571 without shewing cause which is called a peremptorie challenge.

Statutes.

22. H. 8. cap. 14. No person arraigned for any petie treason, murder, or felonie, shall be admitted to any peremptorie challenge, aboue the number of twentie.

When there lacketh some to fill the I••••••, as the greater part being returned dead, •••• * 1.572 not appearing. But if all the pols be chal∣lenged and drawne, there no tales shall be, but a new venire facias for tales referred •••• (quales) some like thing, other of the s〈…〉〈…〉 sort shall be taken, for there may bee ma•••• tales one after another, (a) 1.573 till it bee 〈◊〉〈◊〉 which we call a Tales, which must be•• •••• (b) 1.574 euen number (c) 1.575 lesse then the pr〈…〉〈…〉¦pall pannell, As a decem tales, octo tales, & •• or in an attaint where the Iurie is xxiiij. •• tales, &c. And (d) 1.576 euerie tales must be 〈…〉〈…〉 lesse number then other. As after an O〈…〉〈…〉 tales, a Sex tales, but not a decem tales, not •••• Octo tales againe.

Statutes.

35. H 8. cap. 6. made perpetuall. 2. ••. ••

cap. 32. A Tales may be made vp before Iu∣stices of Assise or Nisi prius of able persons of the same Countie, then present at the prayer of the plaintife or demandant.

4. & 5. Ph. & Ma. cap 7. So for the King vpon request by any authorised thereunto, or assigned of the Court, or by the partie that followeth vpon a penal statute as wel for the King as for himselfe.

14. El. Cap. 9. Such a Tales de circumci∣bus before the Iustices of Nisi prius shall be granted at the prayer of the defendant or auowant.

But in Enditements and Appeales * 1.577 that touch life, a Tales may be of a greater number than the principall Panell. As a xl Tales, or as many as the Court wil award, and that is in respect of the peremptorie challenge of xxxv.

The Iurie being charged, may neither eat nor drinke (but by leaue of the Iusti∣ces) * 1.578 before their verdict giuen; and doing it before they bee agreed, it maketh their verdict void. After they be agreed, it is but fineable.

The Iurie vpon arraignement either at the (a) 1.579 Kings suit, (b) 1.580 or in an Appeale acquitting one that was found guilty of the (c) 1.581 death of a man vpon an enquirie (d) 1.582 by the Coroners Super visum corporis must find who did the fact. But not vpon an En∣ditement (e) 1.583 before the Sherife or Iustices

of peace, for that is not of Record, a•• th•• finding before the Coroner is, (f) 1.584 neither doth this take place in an acquitaile vpon an Enditement for the felonious taking of goods.

The Iurie in an Assise of Nouel disseis•••• (which are there themselues properly cal∣led * 1.585 an assise) shall inquire of the plea in a∣batement, though the issue be ioyned vp∣on the seisin and disseisin. And therefore no plea in Abatement is there answera∣ble.

34. E. 1. De Coniunctim feoffatis. The de∣fendant in Assise alledging iointenancie of his part with a stranger by Deed, the plain∣tife may auer him to be sole tenant; wher∣upon Processe shall be made against both the defendant and the stranger. And if at the day both of them iustifie the feofment, they shall maintaine the exception, and further answer to the Assise as if the origi∣nall had been purchased against him ioint∣ly. If the exception be prooued false by the Assise, they shall haue a yeares imprison∣ment though the assise passe for them. If the defendant absent himselfe at the day, the Assise shall passe against him by de∣fault, though the stranger appeare and iu∣stifie the Deede. Whither both, or one ap∣peare, if it be found by the Assise that the Exception was truly alledged, the Assise shall passe no further, but the Writ shall abate. Such an Exception shall not bee al∣ledged

by the Bailife of any Tenant. The like processes in assises of Mortdancester and Iuris vtrum.

An Infant bringing an Assise, if a mat∣ter en fait, that is, done in the same Coun∣tie be pleaded against him, whether in A∣batemēt, * 1.586 as in an assise of rent, that he had made his plaint of the same land whence he supposeth this rent to bee issuing; or in bar, (b) 1.587 as the Deed of his Ancestour, with warrantie, the Iurie shall inquire of all the circumstances. Otherwise it is in a Writ (c) 1.588 of Entrie sur disseisin, or other (d) 1.589 Praecipe qd reddat: for there the point put in issue, and no other, shall be tried by the Iurors. Otherwise it is also in an Assise vpon plea∣ding a recouerie (e) 1.590 against him, or other matter of Record: in that case he must an∣swer, and the Iury shall not inquire of the circumstances, fot the Court shal plead and maintaine for him.

The like inquirie of the circumstances * 1.591 shall be, if in an assise brought against him he plead to the assise at large. Otherwise it is if he plead in bar, for there if the plaintif make himself title as by a statute marchant &c. and the infant trauerse the title which is found against him, the plaintif shal haue iudgment without inquiring of the circū∣stances, because the issue is taken out of the point of the assise, and therefore is al one as if the infant were of full age. So that it is better for an infant to plead vnto the assise at large, than otherwise.

The forme of an Assise of nouel Disseis•••• i•• * 1.592 this, Rex vic' salutem. Quastus est 〈…〉〈…〉 B. iniuste, & sine iudicio disseisiuit e〈…〉〈…〉 tenemento suo in N. infra triginta ann•••• i•• ••l∣timos clapsos. Et idéo tibi praec' qd si pradi•••• •• fecerit te securū de clam' suo pr' os tunc 〈…〉〈…〉∣nement' illud reseisum de catallis quae i•• i••s•• capt', & ipsum ten' cum catall. esse in p••••••••s∣que ad proximā assisam, cum Iustic' ••••'i i•• p••••∣tes ill' venerint. Et in earim fac' 12 liberos & legales homines de visum illo videre tan' illud, & nomino eorū imbreuidri fac'. Et sum' en p•••• * 1.593 bonos sum' qd sint corā praefat' Iustic' ••r' i•• •••• pr••fatā assisam parati inde facere recogn' •••• pona per vadiū & saluos pleg' praed. B. vel 〈…〉〈…〉 suū, si ipse inuentus non fuerit qd tunc sit ibi •••• illud recogn' anct'. Et habeas ibi summ' 〈◊〉〈◊〉 pleg': & hoc breue. Teste, &c.

If the tenant in a Mortdancester (bee it tenant of the land, or tenant by his waran∣ty) * 1.594 trauerse any point of the writ, as the dy∣ing seised of his Ancestor, &c. which goeth in abatement of the writ, yet the Iury 〈◊〉〈◊〉 inquire of all the points: as whether the d••∣mandant be next heire, & whether his ••••∣cestor died within fiftie yeares, &c. 〈…〉〈…〉 one found against the demandant, 〈◊〉〈◊〉 the writ. But a plea in bar of the assise by matter of record, releas, collateral warr〈…〉〈…〉 or such other matter as is out of the 〈…〉〈…〉 points of the Assise, is peremptorie to the Tenaunt, if it passe against him. And •••• such a plea in Barre bee found agai•••••• the Tenaunt, and yet the Iurie inq〈…〉〈…〉

further, and find one of the points of the writ against the Demaundant, as that his ancestor died not seised, &c. he shall reco∣uer notwithstanding that, for such an en∣quirie should not bee vpon a plea in barre. Dyer thinketh it to be so likewise, where the Tenaunt voucheth, and the Demaundant doth counterplead the voucher, viz. that in that case though the counterplea be found for the Demaundant, yet that all the points must be enquired and found for the De∣maundant, or else he shall not recouer. But Fitzherbert thinketh otherwise in that case, because it is a plea in barre, and not to the Writ.

For the Iuries direction in their verdict greater libertie is permitted in pleading, •• * 1.595 matter doubtfull in Law, for a Trauerse may be omitted. As in debt against an Exe∣cutor, it is a good plea to say, Administra∣tion was committed to him, and therefore he should be named Administrator, and not executor, without trauersing that he is not Executor, for the lay people know no difference betweene one administring as Executor and one administring as Admini∣strator.

The speciall matter may be pleaded to∣gether with the generall issue, &c. As that * 1.596 the Obligation put in suite, was sealed by him and deliuered to A. to keepe till cer∣taine Indentures were made betweene the Plaintife and him, before which Indentures made, the Plaintife tooke the Obligation

out of the possession of A. So is it not his deed. This is good, and yet by this generall conclusion the matter precedent shall not be waiued, for it were perillous to put the speciall matter in the mouth of the Lay people.

The Count may be abridged before ver∣dict, so as the originall remaine true, as in an assise of his freehold, and make his plaint of land and rent, he may abridge it * 1.597 for the rent. In an assise of his freehold in D. and demand two mannors in D. he may abridge his plaint for one. But being of his freehold in D. and S. and demand one man∣nor extending into both, he cannot abridge either of them, for then the writ remaineth not true. In a writ of wast and assigne it a∣mong other things, in racing of a Copper * 1.598 fixed to the soile, he may abridge the wast assigned in that, so as thereby he falsifie not his writ. But if the writ bee Quare vastum fecit in domibus boscis & gardinis, he cannot abridge the wast supposed in domibus. In a writ of ward De custodia terre et heredis, and * 1.599 count of the mannor of D. and xv. acres of land, which in truth are parcell of the man∣nor, and pleaded by the defendant in abate∣ment of the writ: hee may abridge his de∣mand of the xv acres. In trespasse de bonis et catallis captis, and count of money taken a∣way * 1.600 (for which this forme will not serue, the money must needs bee expressed in the writ) hee may abridge the count touching that.

Statutes.

21. H. 8. cap. 3. The demaund of a thing entire may bee abridged before verdict, though thereby the writ become false. Af∣ter acquitaile vpon an appeale or endite∣ment of felonie or treason, he shall neuer be drawne in question for the same offence a∣gaine. Therefore vpon an enditement of manslaughter or murder, the Iustices (by discretion) were wont not to proceed to ar∣raignment * 1.601 till the yeare and the day were past, for otherwise if he should bee acquit vpon his arraignment, the parties appeale were lost.

CHAP. 37.

Of Triall by Battaile.

IN (a) 1.602 writs of right and in appeales (b) 1.603 that touch life, triall may be by bat∣taile at the Defendants choice. There∣fore (c) 1.604 the Demaundant in a Writ of right had neede alwayes to haue his Champion readie, else he may happen to be deceiued.

The battaile in a writ of right must be all by Champions. Therefore in a writ of right an Infant may ioyne the Mise & trie it by battaile. So can he not in an appeale, for there it must be done in proper person:

which Champions must bee (a) 1.605 freem••n, not villeins, & (b) 1.606 so is the issue takē that he is readie to defend it by the body of I. S. a freeman. Therefore (c) 1.607 for the Lord to of∣fer his villein for his Champion in a writ of right, or in an appeale, is a manumission of him. And the Demaundants champion * 1.608 must haue seene him or his auncestors i•• possession, and thereof take his oath.

Statutes.

Westm. 1. ca. 40. Touching the oaths of the Champions it is thus prouided, because it seldome happened, but that the Champi∣on of the demaundant is forsworne, in that he sweareth that hee or his father saw the seisin of the land or his ancestor. And that his father commanded him to deraigne the right, that from henceforth the Champion of the demaundant shall not be compelled so to sweare.

The battaile in an appeale must bee in * 1.609 proper person. And therefore there the De∣fendant is restreined from the choise of bat∣taile, and must needs trie it by Iurie. If there be any notorious presumption of the fact in him, as that hee brake prison, or es∣caped * 1.610 by flight beeing led towards prison for it, or was (b) 1.611 endited for it. So in an ap∣peale of murder, that he was taken in the act with a (c) 1.612 bloudy knife, in an appeale of robberie, that vpon fresh suite and hue and crie hee was taken with the manner,

hauing some of the money about him, or * 1.613 of imbecilitie in the Plaintife, as if he bee may med, or within age, &c.

But against a Peere of the Realme * 1.614 bringing an appeale, the Defendant shall not wage battaile, much lesse against the king either vpon an enditement or appeale.

6. Ric. 2. cap. 6. Ousteth battaile in an ap∣peale of rape.

CHAP. 38.

Of Triall by witnesse.

IN a writ of dower issue taken vpon the * 1.615 death of her husband shall bee tried by witnesses. So shall no other case in the Law.

CHAP. 39.

Of Triall by wager of Law.

IN some cases also the triall shall bee by the Defendants oath, which wee call * 1.616 waging of his Law. As 1. where the te∣naunt in a praecipe quod reddat alledgeth that he was not lawfully sommoned ac∣cording to the Law of the land. 2. in meere personall contracts, wee call them simple contracts, as (a) 1.617 debts for money lent, or

rent vpon a lease for yeares of a stocke of sheepe, or such like: (but (c) 1.618 not vpon a lease of land. And though it be of land sto∣red with beasts, yet the defendant shall not wage his Law for the rent due for the beasts, for it is all but one entire contract) detinue of a horse, or other personal thing: but not of a deed indented, or obligation, * 1.619 or of a lease for years of land, nor in an acti∣on vpon the case, for it is not by reason of any contract growing without deed, for in debt vpon sale of a horse for x. l. if the plain∣tife haue a specialtie of it, he shall estoppe the defendant to wage his Law. But vpon detinue and count of a bailement by deed, yet the defendant may wage his Law, for detinue is the cause of the action, which may bee discharged by matter en fait, as the defendants redeliuerie, or the plaintifes ta∣king * 1.620 of it backe againe, &c. or priuitie of o∣thers, for in detinue vpon a bailement by another mans hand, the defendant may wage his Law, because he is not to answer to the bailement, but to the detinue. So in debt vpon a Contract by another mans hand. But not in accompt vpon receit by a∣nother mans hand, for there he must answer to the receit: the defendant may wage his law. Therefore in such kind of actions ex∣exutors * 1.621 are not chargable, as in debt vpon sale of goods to the Testator, & (b) 1.622 though the partie haue a taile ensealed of it, for that is no specialtie: or for (c) 1.623 wages due by the Testator vpon a retainer. Otherwise it is in

such an action brought by a Laborer (who is bound by Statute to serue) in (d) 1.624 debt vp∣on arrerages of an account made by the Te∣stator before Auditors (who are Iudges of record) or (e) 1.625 vpon a lease for yeares though it bee made without deed, for in none of these cases the testator could wage his law.

Prerogatiue.

No wager of Law shall bee against the * 1.626 King. Therefore in an attachment vpon a prohibition the partie shall not wage his law that he did sue forward contrary to the Kings prohibition, for the King is quod amo∣do party of the contempt. And for this cause * 1.627 also, debt vpon a simple contract shall not be forfeit to the King by outlawry, for then the partie were in worse case then before, where he might haue waged his Law.

Statutes.

Magn̄ chart. cap. 28. Wager of Law shall not bee admitted without credible witnesses.

5. H. 4. cap. 8. In actions of debt vpon the arrerages of an accompt fayning to the in∣tent (to put the defendants from their law) that the same was found before their Ap∣prentices or seruants Auditors assigned in, shall be in the Iudges discretion vpon exa∣mination

of the Atturnies, or whom else they please to receiue, or oust the defen∣dants of their law.

3. In plaints in Court Barons personall things vnder 40. s. yet (by pre∣scription) * 1.628 it may be by Iurie: which i•• a∣gainst the common course and order of it.

CHAP. 40.

Of Demurrers.

AN issue of the Law which we call a demurrer, is when admitting the * 1.629 matters alledged either of them re∣steth in the iudgement of the Law. The forme of ioyning a demurrer is, Et praed. quer' dicit quod placitum praed. de∣finimus sufficiens in lege existit ad ipsum, the Plaintife, ab actione sua praed. &c. praecluden. quodque ipse ad placitum illud modo & forma placitatum necesse non habet, nec per legem terre tenetur respondere, vnde pro defectu suf∣ficient. responsionis petit Iudicium, &c. Et praed. Def. ex quo ipse sufficient. mater in lege ad praed. quer' ab actione sua praed. versus eum ha∣bend. praecludend. superius allegauit quam ipse paratus est verificare, quam quidem 〈◊〉〈◊〉 praed. quer' non dedicit, nec ad eam equa•••••••••• respondet, sed verificationem illam admitte•••• recusat petit Iudicium: & quod praed. quer' ab actione suo praed. versus eum habend. praec••••∣datur.

This beeing ioyned vpon an exception * 1.630 to the originall it selfe or count for some fault appearing in it, doth onely driue the defendant to make a better answer, which we call a respondes ouster, if it passe against him.

CHAP. 41.

Of Apparance.

THus farre concerning pleading. The other meane acts are Ap∣parance, and Continuance, or Iu∣diciall processe.

Apparance is the parties com∣ming into the Court. where vpon (a) 1.631 Cō∣mon day giuen the fourth day after the ve∣rie * 1.632 day is allowed, and so are all entries, obtulit se quarto die post. But so is it not vpon a certaine day giuen vnto him, as Monday, Tuesday, or such like.

When the partie for not appearing * 1.633 should haue some great losse or corporate paine, as to haue a Charter of pardon al∣lowed where one before was outlawed at his suite, at a Sequatur sub suo periculo, when if he appeare not, the land is lost: in a reple∣uin, sicut pluries, when a Capias in Withernam * 1.634 is to go against him, &c. hee may appeare though the officers returne force him not to it, as if in the two first cases hee returne a

nihil, or (that the beasts be esloined) in the latter.

If the Plaintife will not appeare when * 1.635 he is demanded at the day, which is called a non suit, or say in Court that hee will not sue forwards, which is called a retraxit, and alwayes of record, this is peremptorie, and loseth him his action. But in real acti∣ons * 1.636 brought by many, if one will not prose∣cute the rest may alone. Except in the writ De natiuo habendo, that is, fauorem libertati••.

For executors also Sommons & Seue∣rance lyeth in personal actions. * 1.637

If the defendant will not plead, which is a nihil dicit, this in all actions, reall and personall, is peremptorie, and loseth the action.

So in personall actions if hee appeare, and the (a) 1.638 same terme or otherwise, after (b) 1.639 plea or (c) 1.640 demurrer ioyned make de∣fault. And this default shall neuer be saued, how good cause soeuer he haue to excuse it, as fall of waters, imprisonment, &c. for to appeare and plead, and not to maintaine it, is a kinde of nihil dicit. But either of the parties may for once, for ones common es∣soyne * 1.641 lyeth not after another without mesn degrees be excused of apparance, by an es∣soyne which lyeth not for him that appea∣reth in proper person (for it is to excuse his absence, whereunto his presence is contrary) nor that commeth in by exigent, or Cepi cor∣pus (for he abideth in ward, or by mainprise and therefore cannot make default) if they

cast an essoine, that is to say, demand it the * 1.642 first day, or any of the foure dayes, vnlesse the other cast an exception, that is to say, enter an exception that no essoine be recei∣ued. And the fourth day the essoine must ei∣ther be allowed (and then it is said to be ad∣iudged and adiourned) or disallowed. But vpon euery meane apparance a new essoin lyeth, (a) 1.643 though one were cast before (for the Pl and Def. if they list, may fourch in∣finitely by the common Law) As after issue vpon a custome bastardie, or ne unque acō∣ple en loyall matrimony, at the day of the cer∣tifying * 1.644 the defendant may cast an essoyne: After essoine of the demaundant, if the Te∣nant at the second day bee essoined, and at the third day demand the view and hath it. * 1.645 Now at the day after the view, he may bee essoined againe, and at the day after that the demandant vpon a wager of law in debt and day giuen to doe it, if the plaintife be essoined at the day, and at the day giuen by the essoine the defendant bee essoined, now the plaintife at the day may be essoi∣ned againe.

And this is called essoin de male venir, or the common essoine. Beside which essoines for speciall causes, as of being beyond sea, going ad terram sanctam, of the Kings ser∣uice, & d malo lecti are allowed And haue (a) 1.646 a yeare & a daies adiournment, where∣upon an (b) 1.647 oath must bee taken that the cause is true

But no such speciall essoine lyeth in an

assiss (c) 1.648 of nouell disseisin, (d) 1.649 dower, (e) 1.650 assise of darrein presentment, 〈◊〉〈◊〉 Q••••••e impedit, for then the sixe moneths would passe and so the Church come in lappe, for such essoines must haue a yeare and a daies adiournment. But a Common essoyn lyeth in all those cases.

Statutes.

Westm. 2. cap. 12. In an appeale of the death of a man no essoyne shall lye for the Appellor, for whatsoeuer cause in whatso∣euer Court the appeale be.

Westm̄. 1. cap. 41. In assises and Iuris v∣trum after that the tenant hath once appea∣red, he shall be no more essoyned.

Westm̄. 2. cap. 28. In like manner it shall be touching demandants in an assise.

Westm̄ 1. cap. 42. Parceners and Ioynte∣nants in a praecipe against them shall haue but one essoyne.

Glocest. cap. 10. So of a man and his wife impleaded in the Kings Courts.

9. E. 3. cap. 3. Stat. 1. In a writ of debt against executours, they nor any of them shall haue but one essoyne before appa∣rance, that is to say, the summons or At∣tachment, nor but one after apparance.

Westm̄ 2. cap. 27. None allowed after the day giuen by Praece partium, in case where the parties consent to come without es∣soyne.

Marleb. cap. 13. After a man hath put

himselfe vpon an enquest, he shal haue but one assoine.

Westm. 2. cap. 27. After one hath put himselfe vpon an enquest, an essoyne shall be allowed him at the next day, but neuer after, whether he were essoyned before or not.

Mar. cap. 19. None shall need to sweare to warrant his essoine.

Westm̄ 1. cap. 43. The demaundant may auer against an essoyne (before Iustices) of being beyond sea, that the Tenaunt was within the foure seas the day that hee was sommoned, and three weekes after.

Westm̄ 2. cap. 17. In an essoyne De malo lecti, the demaundant may auer by enquest that the Tenant is not sicke, nor in such plight but he may come before the Iustices. Such an essoine shall not lye in a Writ of right betweene two claiming by one des∣cent.

5. E. 3. cap. 7. Essoyne of the Kings ser∣uice, nor protection shall not bee allowed in writs of attaint.

12. E. 2. Stat. of essoines. See many per∣ticular cases where essoynes lye not.

CHAP. 42.

Of Continuance.

COntinuance is from day to day till the end of the suite, else (a) 1.651 if the Plaintife do nothing, it is called a dis∣continuance: if any errour bee in the conti∣nuing,

as by awarding a Capias where •• di∣stresse should bee, it is called a misconti∣nuance.

Statutes.

21. H. 3. De anno Bissextili. The day in∣creasing in the leape yeare shall bee recko∣ned of the same moneth wherein it grow∣eth, and that and the day going before shall be accounted for one day.

51. H. 3 Dies communes in Banco. Dayes shall bee giuen in writs nine returnes, as comming in Michalmas terme, from Octab. Mich. to Octab. Hillarij, &c.

51. H. 3. Dies communes in Banco, and 32: H. 8. cap. 21 Common dayes shall be giuen in reall actions nine returnes. In writs of dower v. returnes.

Marleb. cap. 12. In dower vn de nihil ha∣bet, foure or sixe dayes shall be giuen in the yeare.

In Assises of Darrein presentment and Quare impedit, from xv. to xv. dayes, or from ••. weekes to 3. weekes, as the place shall be neere or farre.

5 E 3 cap. 6. and 7. In an attaint v. dayes shall be giuen at the least.

The suite of an excommunicate person shall be put without day, terme paroll 〈◊〉〈◊〉 * 1.652 Iour till he be absolued And so is it in all ••∣ther cases which happen without the Plaintifes folly, as by the demise of the

King (so we call the death of the King, be∣cause in Law hee neuer dieth, but leaueth his Crowne to another) non venūt. of the Iustices, cessor of the eyer, protection, &c.

Statutes.

1. E. 6. cap. 7. By the death of the King no action, suit, bill, or plaint shall bee dis∣continued, or put without day. But the processe pleas; demurrers, continuances, shal stand good, and be prosecuted in such man∣ner and forme as if the same King had li∣ued. After continuance taken, the defendant may for once leaue his former plea, & plead any thing growing since this latter conti∣nuance, which wee call a plea puis darrein continuance. As if the defendant in an acti∣on of account plead receit of parcell by the * 1.653 plaintife who wageth his Law: now at the day which the plaintife hath to performe his law, the defendant may plead a release puis dairein continuance.

Continuance is by processe, or vpon the Roll. That vpon the Roll is a Dies datus, * 1.654 or Emparlance. Dies datus when the Court giueth the parties day, and therfore in a per∣sonall action the defendant shall not bee condemned by default after such a conti∣nuance: for it is the act of the Court, and he doth not demand day as vpon an Empar∣lance, •• this is alwaies before the Count. * 1.655

Such a continuance by assent of both the parties is called a Praece partium.

So as if the defendant come vpon the exi∣gent * 1.656 by a reddit se, and be by mainprise, yet the plaintefe may haue day by prece parti∣um, notwithstanding that thereby the de∣fendant shall be let out of ward, fot it is by assent of the parties.

But in assises the continuance is by a Iu∣sticiarij nondum auisantur, and not by a Dies * 1.657 datus.

Emparlance is when the defendant de∣mandeth day to see if he may end the mat∣ter * 1.658 without further suite, which he may do once, but not oftner without the plaintifes consent: and is alwayes after the Court. After which he cannot plead to the Iuris∣diction, person, or in abatement either of * 1.659 the Count or writ. For (a) 1.660 after emparlance a Supersedeas of priuiledge out of the Chan∣cerie shall not be allowed: he cannot plead that the land is within the fiue (b) ports or (c) antient demesn, &c. or that the Pl is a villein, or (d) 1.661 outlawry in the Plaintife in debt vpon a simple contract, or in trespasse of batterie, or false imprisonment. (But in debt vpon an obligation he may, for that is to the action, inasmuch as the King is to haue the debt) or that the plaintife is an a∣lien, viz to the person in an action of tres∣passe * 1.662 to his house broken downe, but to the action he may: Nor misnomer as no such Towne of D. where he is named I. S. of D. But where a praecipe quod reddat is brought of the mannor of D. in D. there he may, for * 1.663 there it is in barre, or in an action of debt

against an Executor that he is an admini∣strator and not an executor. But that he ne∣uer was executor, neuer administred as ex∣ecutor he may, for that is to the action, nor demand oyer of the obligation, or such like, * 1.664 but he may plead variance after, and so come to haue a view of the Obligation and Condition thereof, whereby to plead any matter in barre.

But after a speciall empariance, Saluis * 1.665 omnibus aduantagijs, hee may plead to the Count or writ and haue oyer, but yet not in that case plead to the Iurisdiction or person.

In an appeale of Robberie, or such like, * 1.666 that toucheth life, if the defendant plead a plea whereby his life should come in ieo∣perdie, the Plaintife shall not empatle vn∣to it, but must answer Sedente curia.

Default after emparlance, that is, at the day giuen by the emparlance is perēptorie, and loseth the action in all actions whatso∣euer, * 1.667 real or personal, for it is a departure in despight of the Court. As in debt, trespasse, or such like, the Plaintife in this case shall recouer his damages in a praecipe quod red∣dat, if the Tenant appeare and emparle, and after make default, seisin of the land shall be awarded, and not a petit cape. In a writ of right if the tenant vouch, and the vou∣chee enter into the warrantie and emparle, and after make default, the demaundant shall recouer seisin of the land against the

tenant, and the tenant ouer in value against the vouchee.

CHAP. 43.

Of Mesne; Iudiciall processe.

IVdiciall Processe is a Processe out of that Court where the original is retur∣ned, prosecuting the action. And there∣fore vpon an originall returned ••arde, an alias and pluries shall go out of the same * 1.668 Court Teste the chiefe Iustice, for by the re∣turne the Court is possessed. But if no re∣turne at all bee made, the alias and pluries shall go out of the Chancerie, Teste Regem. This must be sealed with a seale Iudiciall, being in the custodie of the chiefe Iustice of that Court.

Iudiciall processe are mesne processe •••• in nature of new originals.

Mesne processe which is for any neces∣sarie act to be done, not onely for the plain∣tife against the defendant, but for either of them against any other, whose presence in the Court may be necessarie for them. As a∣gainst one that is vouched or praied in aide * 1.669 of. So against Iuries, witnesses, &c. So to ex∣ecute iudgements giuen, or any thing else necessarie for the triall of any of their alle∣gations.

Vpon a fine leuied before it be engrossed the writs to compell atturnement are per * 1.670

quae Seruicia, when the fine is leuied of a * 1.671 seigniorie.

Quem redditum reddit, when it is of a * 1.672 rent charge or rent secke.

Quid iuris clamat, when it is of a remain∣der or reuersion. * 1.673

Statutes.

23. Eliz. cap. 3. Plie entrie of record of an Atturnement vpon a fine shal be vtterly void, except the partie (mentioned to at∣turne) first haue appeared in Court in per∣son, or by atturny warranted by the hand of one of the Iustices of one Bench or other, or of one Iustice of assise, vpon a writ of Quid iuris clamat, qu••m redditum reddit, or per quae seruicia, as the case requireth.

In petitions whether in Parliament or * 1.674 elsewhere, and though the king haue gran∣ted the lands ouer, or wheresoeuer the king being made partie, may be at losse: as when he is prayed in aide of, in a praecipe quod red∣dat, or other reall action against his lessee, but not in (b) 1.675 trespasse (c) 1.676 Eiectione firme, or other (d) 1.677 personall action, for there he is to lose nothing. A writ of search lyeth, which is to search in the Tresury before the plea proceed, if by likelyhood some matter may be there to maintaine his title. As vpon fin∣ding by office that A. died seised (of cer∣taine land holden of the King) without heire, and a trauerse put in that A. held not of the king. But if one come and say that A. had issue B. who enfeoffed him, there no

search shall be, for no matter can be in the tresorie to proue whether A. had issue, no more if the kings title be by an alienation in mortmain.

Statutes.

14. E 3. cap. 14. In a petition and search granted after foure writs, whether any im∣minent or remembrance bee found for the King, or nor, the partie shall be put to an∣swer. So as euery of the foure writs be deli∣uered to the Tresorer and Chamberleins xl. dayes before the day of the returne.

In reall praecipes where a freehold is to * 1.678 be recouered vpon default, after plea issue or demurrer a petie Cape shall goe foorth in the nature of a grand Cape in all things, saue that here the tenant is to answer to the de∣fault onely, not to the demand also, as in a grand Cape And therefore it is called a pety Cape, and the other a grand Cape, because there is lesse in the one then in the other.

So vpon a voucher a petit cape advale•••• ciam. In those that are for other heredita∣ments, * 1.679 not in point of seigniorie, as (a) 1.680 an∣nuitie, (b) 1.681 Quare impedit, Quo iure, (d) 1.682 quod perm••itat, &c. vpon default as before, a di∣stresse * 1.683 shall goe forth in liew of a petit Cape. And both there, and vpon view granted, day shall be giuen as in a plea of land, for it * 1.684 is in the nature of a praecipe quod reddat, in as much as hereby he is to recouer the land it selfe.

The Processe against Iurors is first

a Ʋenire facias to the Sherife to returne * 1.685 them, at which day if they appeare not, then a habeas corpora.

And after that a distresse infinite.

Statutes.

27. Eliz. cap. 7. No Iuror shall bee retur∣ned without the true addition of the place of his dwelling at the time of the returne, or a yeare before, or some other addition whereby hee might bee knowne, nor no estreet shall be without such addition as is in the returne.

35. H 8. cap. 6. In euery Habeas corpora or distringas with a Nisi prius at the first writ, v. s. at the least shall bee returned in issues vpon euerie Iuror, at the second, x. s. at the least, at the third xiij. s. iiij. d▪ and euer after∣wards the double of xiij. s. iiij. d.

2. G. 6. cap. 32 If the principall Iurie ap∣peare not fully at the nisi prius, those that make default, shall forfeit their issues, though the Iurie be made vp de circumstan∣tibus.

where in personall actions vpon the de∣fendants default, the Iurie shall be taken, which wee call taking of the Iurie by de∣fault: In an action of trespasse alwayes (a) 1.686 whatsoeuer the issue be, (b) 1.687 release, (c) 1.688 Iustification, &c. So in (d) 1.689 debt, detinue, account, & the rest which are for things in

certaintie if the issue be taken vpon a matter en fait onely, as (e) 1.690 payment, or that an (f) 1.691 acquittance pleaded in barre by the defen∣dant, was made by dures. But if it be vpon the acquittance it selfe, release or other mat∣ter in writing, the plaintife may there pray iudgement if he will. But if he do not pray it, the Iurie shall be taken by default, as in an action of trespasse.

But in assises of nouell disseisin, nu∣sance, mortdancestor, darrein presentment, and Iuris vtrum, the original writ comman∣deth * 1.692 a Iurie, as well as the defendants, to be warned, which Sōmons to the Iurie, ser∣ueth in stead of a venire facias. So that the processe here against the Iurie is, Somon' ha∣beas corpora & Distringas.

And therefore there vpon default after that originall processe ended, viz. the A∣tachment in an assise of nouell disseisin and nusance, the sommons and resommons in a (i) 1.693 mortdancestor, darrein presentment, and (k) 1.694 Iuris vtrum, the enquest shall bee taken by default, whether the default be present∣ly after the resummons or after essoine, or plea pleaded. As it should bee taken if the Tenant did appeare.

CHAP. 44.

Of Iudiciall processe in the nature of new Originals.

IVdiciall processe in the nature of new * 1.695 originals (in none of which any free∣hold shall euer be recouered) but dama∣ges onely, are these that follow. First such as command to doe some thing As,

1. Resommons or Reattachment, accor∣ding as a Sommons or attachment lay in * 1.696 the first action, to receiue in the former plight a suite put without day. And may either reuiue the originall alone, or the whole proceeding by special words, in that Resommons or attachment, as if it bee a∣gainst the tenant after a voucher; the vou∣cher is not receiued, vnlesse special mention be of the vouchee also, nor any plea at all is reuiued but the originall onely. But in e∣uery Resommons after an issue, the issue is reuiued, for day is giuen to the Iurors ex∣presly; So is all the pleading by a speciall re∣sommons. But no such resommons nor re∣••ttachment shal be vpon a discontinuance, * 1.697 ••hough it be in a writ of ward, where a re∣••ommons is giuen by the Statute, for vpon •• discontinuance the originall is deter∣••ined.

2. All certificatorie writs, as if in a * 1.698 writ of right close brought in antient de∣mesne the tenant vouch a foreyner to war∣rantie, and after purchase a Warrantia char∣tae returnable in the Common place against the vouchee, and thereupon a Supersedeat to the Baylife in antient demesne Now if the plea of Warrantia chartae bee determined or discontinued in the Common place, the demaundant in the writ of right close may sue a writ out of the Chancerie, directed to the Iustices of the Common place, to certi∣fie the King in his Chancerie of it. To the end that if it bee so, the Baylife in antient demesne may proceed. So vpon a Monstra∣uerunt * 1.699 sued against the Lord in antient de∣mesne, and an attachment thereupon, be∣cause he shall not bee driuen to answer to the attachment till the Court be a serteyned whether the lands be antient demesne, o•• no: the Plaintifes in the Monstrauerunt must sue a speciall Writ to the Tresurer, and Chamberlayns of the Exchequer to certifie it. In like sort vpon an Indicauit purchased, * 1.700 because the tythes amount to the fourth part of the value of the Church, the other may haue the Kings Writ directed to the Bishop to certifie the King in the Chancery of the value of the Church, to the end that if it amount not to that value, he may ha•••• a Consultation. So vpon surmise made i•• * 1.701 the Chancerie, that the Kings Comitee of •• ward hath done wast, a writ shall go fort•• to the Eschetor to certifie the King thereof

••nd so in all other like cases.

3. Cerciorare to remoue a record out of * 1.702 Court of record into the Chancerie, for •• record shall be remoued into the Com∣••on place, nor no enditement taken in the ••untrey into the Kings Bench imediatly •• any Certiorare, but first it must be certi∣••d into the Chancerie by a surmise, and ••m thence sent into the Common place, •• Kings Bench, as the case is, by a Mitti∣••. * 1.703 And euery writ of error is a Certiorare ••t selfe.

4. To remoue suits out of Court Ba∣••s, for a Recordare, Pone, or such like, are ••no other entent but onely to remooue * 1.704 ••ewhat into the Kings Court, and are in •• nature of a Certiorare. And vpon the re∣••uethe recordare or pone is determined, for •• plea shall not be holden vpon them, but ••n the plaint that is remooued, and the ••t pledges shall stand. And these may be ••thout shewing any cause in the writ, if •• remoue be at the Plaintifes suite: but •• without shewing good cause in the ••it if it be at the Defendants suite. As ••ng to remoue a plea in a writ of right to * 1.705 ••w that the Baylife is heire to the land, or ••eth vpon him to maintaine the matter haue part of the land, or that the Te∣••t hath alledged bastardy, or pleaded a ••reine plea, or ioyned the mise vpon the ••nd assise, &c. being to remoue a plea in * 1.706 ••pleuin by plaint, to shew that the de∣••dant auoweth for damage feasant, and

the Plaintife iustifieth by reason of C••••¦mon of pasture, which is a plea touc•••• freehold, and therefore should not be w•••• out writ.

These are either to remooue pleas •• writ, or by plaint without writ, Of the •••• sort are a Tolt and Pone.

Tolt or Tollas is for the plaintife, but ••••¦uer * 1.707 for the Tenant, to remooue a writ •• right out of the Lords Court into •••• Countie Court. And because this being •• * 1.708 the plaintifes suite may bee without •••• cause, therefore this clause is put in eue•••• writ of right patent, Et nisi feceris vice c〈…〉〈…〉 faciat. Pone is to remoue into the Co〈…〉〈…〉 place in all other cases, viz. (b) 1.709 saue on•••• in the case of a writ of right to be remo•••• out of the Lords Court into the Cou•••• Court. As (c) 1.710 writs of right remoued i•••• the Countie Court by a Tolt, (d) 1.711 Iusticies •••• Vicontiel writs in the Countie Court, repl••¦uins by Writ either (e) 1.712 there or (f) 1.713 in a•••• other Court Baron. And all this indiffer••••¦ly, (g) 1.714 either at the plaintifes or at the d••¦fendants suite. So vpon a (h) 1.715 Natiue 〈◊〉〈◊〉 sued in the County, if the defendant alled•••• himselfe franke, the Lord is driuen to ••••¦moue it by a pone. But a pone to remo•••• repleuin by writ out of any other Co•••• Baron then the Countie Court cannot •••• without shewing cause, though it be at t•••• plaintifes suite.

Of the second sort are a Recordare, •••• * 1.716 Accedas ad Curiam. In both which noth••••

••t the plaint shall be remoued, (a) 1.717 though ••ey be at issue.

Recordare (b) 1.718 is to remooue plaints in ••ountie Courts. Euery (c) 1.719 Writ of false ••dgement vpon a iudgement giuen in the ••ountie Court is a Recordare in it selfe.

Accedas ad curia, is to remoue plaints in * 1.720 ••y other Court Baron (e) 1.721 Euery Writ of ••se iudgement vpon a iudgement giuen •• any other Court Baron then the County ••ourt, is an Accedas ad curiam in it selfe.

This also vpon good cause shewed in ••e writ, lyeth for the tenant to remoue the * 1.722 ••a in a Writ of right out of the Lords ••ourt immediatly into the Common ••ce.

5. Mittimus to send a Record out of the ••hancerie, whether being certified thither ••fore by a Certiorare, or howsoeuer else be∣••g there, into another Court of Record, to ••e end they may proceed vpon it. But the ••hancellour may send such a Record by * 1.723 •• owne hands, without any Mittimus, if please him.

6. Procedendo to proceed in suits. As if * 1.724 ••e Lord vpon a writ of right sued in his ••ourt wil not hold his Court, the demaun∣••nt may haue this writ vnto him, if a man * 1.725 ••use himselfe to be essoyned of the Kings ••uice in any action where indeed he is not •• his seruice, the Plaintife or demaundant ••y haue this writ directed to the Iustices ••mmanding them to proceed. So where * 1.726 ••e Iustices in any Court delay the Pl or

the defendant, and will not giue iudgeme•• for him where they ought to do it, the p••••¦tie grieued shall haue a procedendo ad I••¦dicium.

Of this nature is a writ of consultati•••• to proceed in the spirituall Court, wh•••• * 1.727 one suing there for matters belonging •••• that Court, as for matters testamentarie, •••• concerning matrimonie, &c. is by a prohi¦bition restrained to prosecute the suit.

Statutes.

24. E. 1. De consultacione. A consulta¦tion to be awarded by the Chancellour •• chiefe Iustice of the King, vpon sight of the libell at the instance of the Plaintife.

50. E. 3. cap. 4. Vpon a consultation 〈◊〉〈◊〉 duely granted, the Ecclesiastical Iudge may proceed in the same cause notwithstanding any other prohibition. So the matter of the libell be not enlarged, nor otherwise cha••∣ged.

7. At writ of mainprise to set at liber•••• one baileable finding baile, that is to say, sufficient persons to bee bound for him •••• * 1.728 suretie to answer the action, which in re¦spect of deliuering him into the hands •••• his frendes the sureties, is called Baile, i•• respect of their taking of him is calle•• mainprise.

Such persons baileable bee they wh•••••• * 1.729 are taken vpon a Capias originall.

But not the defendant in (a) 1.730 Appeale of Mayme, if the Mayme bee haynous: nor * 1.731 the principall in an enditement, or appeale of Felome, (c) 1.732 nor the accessarie after at∣tainder of the principal, (d) 1.733 nor any in high treason, where all be principals.

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 * 1.734 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 * 1.735 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. * 1.736 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 * 1.737 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 * 1.738 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 * 1.739 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 * 1.740 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 * 1.741 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 * 1.742 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 * 1.743 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 * 1.744 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) 1.745 or commō * 1.746 place, (b) 1.747 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, * 1.748 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) 1.749 any plea that concerneth not matrimonie & wills, as for goods or debts, &c. and (b) 1.750 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 * 1.751 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 * 1.752 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 * 1.753 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 * 1.754 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.

Statutes.

Westm̄ 2. cap 5. When the Parson of any Church is disturbed to demand tythes in the next parish by a writ of Indicauit, the patron of the parson so disturbed shall haue a writ to demand the auowson of those tythes. And after the plea deraigned in the Kings Court, then it shall proceed in the Court Christien.

18. E. 3 cap. 7. pro clero & cap. 47. Writs of Scire facias to answer of dismes in the Chancerie, and to shew why such dismes ought not to be restored the demaundants shall not from henceforth be granted. Sa∣uing the Kings right as hee and his ance

stors were wont to haue

2. A Supersedeas to stay any further pro∣ceeding in the suite. As if a writ of trespasse * 1.755 vi & armis be brought in a Court Baron, if vpon a writ of right close brought in anti∣ent demesne, the demaundant and tenant put themselues vpon the grand assise, or the Tenant vouch a forreyner, or plea a forrein plea which cannot be tried there, if a Clark of the Chancerie or any of the seruants of * 1.756 the Chancellor, or Lord keeper of the great seale bee sued in any other place for a tres∣passe, or other matter.

Of this nature are, a writ of peace for the Tenant vpon a writ of right brought in the Lords Court, vouching one to war∣rantie out of the power of that Court, we * 1.757 call it a forreine voucher, or ioyning the mise vpon the grand assise to haue the mat∣ter * 1.758 respited till the Iustices in Eyer come thither. Which if he bring not at the next Court day, after such voucher or mise ioy∣ned, he loseth his tenancie, the reason is, be∣cause the Lord cannot make a grand assise to come. But if battaile be ioyned, that shall * 1.759 be determined there, and after such a writ brought the plea may proceed by leaue of the Iustices. As if the vouchee come before them and enter into warrantie, they may award that he shall go to the Court of the Lord and there warrant to the partie that * 1.760 vouched him, and assigne a day certaine of the Court, and also giue leaue and power to the Lord to hold his Court.

De libertate probanda for the Defendant vpon a Natiuo habendo sued in the County, * 1.761 claiming to be franke to the Sherife to ad∣iourne the plea before the Iustices in Ei••r. And therefore must be brought before any * 1.762 pone deliuered by the Lord to the Sherife to remoueit. And this is a Supersedeas to the Lord not to proceed til the day of adiourn∣ment, nor to cease the villein till the plea dis∣cussed.

Statutes.

25 E. 3. cap. 18. The Lord may seise the bodie of his villein, notwithstanding that a Writ. De libertate probanda be hanging.

Idemptitate nominis for one molested by a suite against another of the same name. As if he be taken by a Capias or Exigent awar∣ded * 1.763 against the other, or distreined by pro∣cesse out of the Exchequer. And this Writ shall be either to the Escheator or Sherife according as he is vexed, or his goods taken by either of them, to surcease against him, or against his goods.

3. Protections cum clausula volumus when the King in respect of the Defendant being in his seruice taketh him, for the plaintife can neuer haue a protection for him, vn∣lesse it be in speciall causes where the plain∣tife * 1.764 doth become defendant, into his prote∣ction for one yeare to bee free from all * 1.765 suits.

Writs of dower, Quare impedit, assises * 1.766 of nouell disseisin, and pleas before the Iu∣stices in Eyer are accepted Therefore it shall for that time saue all defaults. So as * 1.767 vpon a protection (cast in a plea personell) at the Nisi prius, and repealed at the day in Banke, yet the enquest shall not be taken by default, for the default was once saued. Otherwise it is of a protection disallowed at the day in Banke. And a man may ex∣cuse * 1.768 his default at a Grand cape, or petit cape by casting of a protection. But a protection can indure no longer then for one yeare, for otherwise it might bee for xx. xxx. or C. yeares, and by the same reason for a thou∣sand yeares, which were a great inconueni∣ence and disherison to the partie. But a pro∣tection for one yeare is not so, for after the yeare ended he may haue a resommons and proceed in his suite: yet the King after the first yeare ended may take him againe into his protection for another yeare, though it be space of ten or twentie yeares together, for in that case appeareth at the first no mischiefe nor inconuenience, as there doth when he taketh him into his protection for so many yeares at once.

Statutes.

5. E. 3. cap. 7. No protection shall be al∣lowed in writs of Attaint.

This kind of protection is double. Pro∣tectio * 1.769 quia profecturus, when he is to goe be∣yond

sea in the Kings businesse.

Protectio quia moratur, when he stayeth * 1.770 there about it. Of which nature is also a protection quia in prisona, when being sent beyond Sea in the Kings warres hee is there taken and detained in prison. The go∣ing or staying about the Kings businesse in * 1.771 the marches of Scotland, or such like pla∣ces is counted as beyond Sea. But a prote∣ction quia moratur super altum mare, is not good, for it cannot bee entended that hee doth abide there.

Statutes.

13. Ric. 2. cap. 6. A protection in respect of going beyond Sea disallowed (except it be in voyage Royall, or businesse of the Realme) where it beareth date after the suit commenced. And the Lord Chancellour hath authoritie to repeale it, if he go not in conuenient time, when he returneth.

A Statute of protection, 33. E. 1. Auer∣ment is giuen against petition for the kings seruice.

1. Ric. 2. cap. 8. Protection (volumus) not allowable for victuall taken or brought vp∣on the voyage or seruice, whereof the pro∣tection maketh mention, nor in trespasses and other contracts made after the date of the same protection.

Prerogatiue.

The King may take his creditor into * 1.772 his protection, that no other creditor shall sue or atrest him, till the King bee satisfied, which is also a protection cum clausa volu∣mus.

Statutes.

25. E. 3. cap 19. A Creditor shall haue an action and iudgement against the kings debtor, notwithstanding such a protection. But not execution, vnlesse he take vpon him to pay the king, & then he shall haue iudge∣ment and execution of both debts, as well of that due to the King as to himselfe.

He may also by a writ called Warrantia diei, rehearsing that one which should ap∣peare * 1.773 in proper person, whether it bee the plaintife or defendant, is in his seruice, wil that for one day no default be recorded vp∣on him. So as if the tenant in a praecipe quod reddat make default at the grand Cape, or petit cape: yet before Iudgement vpon that default, the King by his writ may make that it shal not hurt him. And this standeth with reason, because euery man is bound to serue the King in his affaires. Neither is it material whether he be in the Kings seruice or not, when the King certifieth that he is: for it seemeth by the words of the writ, that the King by his prerogatiue may for one day warrant his default. And this writ can∣not be granted but by the king himselfe.

4. Essoyne de malo lecti, is a writ to war∣rant * 1.774 an essoyne of lying sicke a bed cast by the Tenant in a writ of right: Comman∣ding foure Knights to see him, and if he be sicke to giue him day at the end of the year, and the day for so long adiournment is in that essoine.

Statutes.

Westm̄ 2. cap. 17. In an Essoine De ma∣lo lecti the demaundant may auerre by en∣quest, that the Tenant is not sicke, nor in such plight but that hee may come before the Iustices. Such an essoine shall not lye in a writ of right betweene two claiming by one descent.

5. A Ne admittas for either partie, plain∣tife or defendant, in a quare impedit, or assise * 1.775 of darrein presentment to the ordinarie, not to admit the others Clarke till the matter be discussed.

And this must be sued within 6. moneths and not after, for after the sixe monethes it * 1.776 is lawfull for the ordenarie to present by laps, but being sued within the six moneths the ordenarie may neither himselfe (b) 1.777 col∣late within six moneths (but afterwards by laps he may) nor (c) 1.778 admit the others Clark at any time, (d) 1.779 though it be after the sixe moneths, and though it be found for him by a Iure patronatus, which is a commission that the ordenarie may grant to enquire who is the right patron.

6. A quare incumbrauit for him that su∣eth * 1.780 a Ne admittas, and after recouereth in a Quare impedit, or assise of darrein present∣ment, though it be after the sixe monethes, but before recouerie no quare incumbrauit lyeth against the ordenarie for incombring the Church, contrarie to the ne admittas. But of a collation or admittance before a * 1.781 ne admittas sued, no quare incumbrauit (but onely a quare impedit) lyeth, for the ordina∣rie can haue no notice till the ne admittas.

But no ne admittas, nor quare incumbrauit lieth in a writ of right of auowson, though * 1.782 the Church become void hanging the writ, and the Bishop do encomber it, for the de∣maundant there shall not recouer the pre∣sentment but the auowson. And if he haue title to present, hee may present, and vpon disturbance haue a quare impedit.

CHAP. 45.

Of Iudgements.

THus farre of Suit. Iudgement * 1.783 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) 1.784 non suit, or the (d) 1.785 Tenant maketh default, or the (e) 1.786 vou∣chee after such an issue ioyned by him, de∣parteth in despite of the Court, &c.

Prerogatiue.

Against the King Iudgement is not fi∣nall, but is alwayes with a Saluo iure Regis.

Recoueries in a writ of right bind all * 1.787 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 * 1.788 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 * 1.789 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) 1.790 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.

Statutes.

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 * 1.791 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 * 1.792 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) 1.793 fine by writ of error, a (b) 1.794 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) 1.795 mayme, enditements or appeales of (d) 1.796 felonie, the accessorie shal not be compelled to answer till attainder of (e) 1.797 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) 1.798 or haue his (g) 1.799 pardon before, or if two men be endited, one as principall, the other * 1.800 as accessarie, and the principall bee after∣wards attainted of another felonie and hanged: the accessarie shall be discharged And (i) 1.801 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 * 1.802 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) 1.803 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) 1.804 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) 1.805 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 * 1.806 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•••• * 1.807 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 * 1.808 be tried there by a Iurie of Clarkes. A•••• therefore purging himselfe shall goe •••• large. Therefore is a writ to command the * 1.809 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. * 1.810 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 * 1.811 offence committed before.

Prerogatiue.

A Clarke conuict forfeiteth his chat∣tels: And shall neuer haue restitution, * 1.812 though he make purgation. Notice 〈◊〉〈◊〉 be giuen to the King of the time before the * 1.813

partie make purgation. If the Clergie be after Iudgement, in which case wee call * 1.814 him a Clarke attaint, hee shall remaine in perpetuall prison.

Statutes.

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) 1.815 that the strongest that can be be∣ing by his owne confession) and a (b) 1.816 for∣feiture of his lands. And there is a writ of Eschete of land for felonie, pro qua abiura∣nit regnum. And therefore (c) 1.817 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. * 1.818

The defend ant in an appeale of felony, being acquited shall haue Iudgement also to recouer damages against the Plaintife. * 1.819 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.

Statutes.

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.

CHAP. 46.

Of Iudiciall Writs to execute Iudgements.

THese Iudgements haue their Iudi∣ciall writs belonging to them, both meere Iudiciall writs, for the execu∣tion of them, and new originals in the nature of Iudiciall writs, to vn∣do some matters concerning Iudgements.

Meere Iudiciall writs in reall or per∣sonall actions, are either such as lye onely within the yeare and day after the Iudge∣ment rendred, or a Scire facias.

Those of the first sort are betweene the * 1.820 parties to the recouerie, for otherwise though it be within the yeare, he that reco∣uereth is driuen to his scire facias, as if it be for debt or dammages recouered against a * 1.821 fem sole, who afterwards taketh a hus∣band, or by or a gainst ones predecessour or Testator, and in the same Court where the recouery was, for if the record of a recouery in an assise of nouell disseisin bee remoued within the yeare into the Chancerie by a Certiorare, and from thence to the Com∣mon place by a Mittimus, or remoued by writ of error out of the Common place in∣to the K. Bench, & the Iudgement affirmed within the yeare, yet the partie is driuen to a scire facias. So if a fine executory be remo∣ued

out of the Cōmon place into the Tre∣surie, and come back by Certiorare and Mit∣timus, within the yeare no execution shall be by an habere facias seisinam, but by a Scire facias onely. But although the Iudges of the Common place should all dye within a yeare after their iudgement, and other Iustices be chosen, yet in that case executi∣on might bee well enough without a scire facias: for it remaineth still the same Court, or if the Iustices in Eyer come into the Countie, where one hath recouered before the Iustices of Assise, they may award exe∣cution by a Scire sacias within the yeare.

Of this kind are vpon recouerie in reall or mixt actions.

Habere facias seisinam to put him in pos∣fession vpon a freehold recouered, in an as∣sise, * 1.822 praecipe quod reddat, &c.

Habere facias possessionem, vpon a Terme for yeares recouered, as in an Eiectione fir∣me, &c.

A writ to the Bishop to admit ones * 1.823 Clarke vpon a presentment recouered in a Quare impedit, or assise of darrein present∣ment: If the suit be against the Bishop him∣selfe, then this writ may be to the same Bi∣shop, or to the Metropolitan at the parties choice.

Those vpon a recouery in personall actions, are ••••••woforts, either to haue ex∣ecution * 1.824 of the profits of his land & Chat∣tels, or a Capias ad satisfaciendum.

But in Court Barons Execution is

onely by distresse, and impounding till the * 1.825 partie be satisfied: for they haue no power to sell or deliuer the distresse to the partie, neither doth any execution by the body lye there.

In those of the first sort execution shall be of any (a) 1.826 land which the partie had day of the Iudgement rendred, but for (b) 1.827 chettels (though it be (c) 1.828 leases for yeares) o••••ly those which he had day of the execu∣tion sued. (d) 1.829 So as if he sell his goods bona fide, after Iudgement, and before the writ of Execution sued forth, those goods are not lyable to the execution: or if a writ of exe∣cution be sued forth, and neuer returned, and after the defendant alien his goods, and then the Plaintife purchaseth another writ which is returned, yet execution shall not be of those goods, for writs which ne∣uer are returned are not of record, nor of a∣ny force at al. But an alienation made after the Teste of that second writ had beene no∣thing worth.

Of this kind are a Scire facias, and a Le∣uari facias. Fierifacias to lente execution of his goods and Chattels onely. Leuari facias * 1.830 to leuie execution of the profits of his land and Chattels. The forme is, Praedicta pecu∣niam de terris & catallis praedicti (the defen∣dant) leuari facias, Ita quod ea habeas in ett' tali die praefat. (the Plaintife) deliberand. And this hauing words that he shall leuie the money of his lands and chattels, it see∣meth that the Sherife may take the rents

payable by the Tenants in execution of the debt, but not to seise the land, and deliuer it to the partie.

Statutes.

West. 2. cap. 13. He that recouereth debt or damages in the Kings Court may at his choise haue a scire facias of the land and chattels of the debtor, or a writ for the she∣rife to deliuer him all the Chattels of the debtor (except oxen and plow beasts) and the moitie of his land by a reasonable ex∣tent till the debt be leuied. And if he bee eiected out of the land, he shall haue an as∣sise: and afterwards a writ of redisseisin if need be.

••1. E. 1. Stat Acton Burnel. A debt ac∣knowledged to a Merchant, before the Maior of London, Yorke, or Bristow, or be∣fore a Maior or Clarke (appointed by the King thereunto) shall be enrolled. And if it be not paied at the day, the debtors moue∣ables shall be prised and sold in satisfaction by the Maior, if he haue any within his iu∣risdiction, else by writ out of the Chancery vpon a Certificate of the Recognisance thi∣ther. The prisors to take them of the price if they prise too high; if they haue not moue∣ables sufficient, then he shall be imprisoned til, &c. The like processe against pledges, in default of sufficient moueables of the prin∣cipall.

13. E. 1. Stat, De mercatoribus. A debt acknowledged to a Merchant before the Maior of London, or chiefe Wardein of a Towne, which the King shall appoint, or other sufficient men when they cannot at∣tend, and before a Clarke which the King shall assigne, shall be enrolled, and if it be not payed at the day, the debtor if he be a lay man shall be imprisoned by the Maior till, &c. if he be within their power, else by writ out of the Chancerie vpon Certificate of a Recognisance thither. And if he agree with the ereditor within a quarter of a yeare after, then al the lands which were the deb∣tors, day of the Recognisance made, and al∣so his goods, shall be deliuered to the credi∣tors vpon a reasonable extent. And of these lands so deliuered, the conisee being ousted, shall haue an assise or redisseisin.

The writs out of the Chancerie shall be returnable before the Iustices of either Bench, and vpon a Non est inuentus returned or that he is a Clarke, writs to all the she∣rifes where he hath lands or goods, shall go forth to deliuer the same vpon reasonable extent, and to what sherife hee will to take his bodie.

The like processe shal be against the pled∣ges if the money be not paied at the day.

If the debtor or pledges dye, the creditor shall haue execution vpon the lands of the heire at his full age.

27. E. 3. cap. 9. The Maior of the Staple shal take Recognisance of debt before him∣selfe

and the Constables of the Staple, whereupon default of paiment being made the debtors body shall be imprisoned, and his goods sold in satisfaction (if they bee within the Staple) else vpon a Certificate in the Chancerie, a Writ shall goe out from thence to imprison their bodies, and seise their lands and goods which shall be retur∣ned in the Chancerie, and execution there∣upon in all respects as in the Statute Mer∣chant. Saue that the debitor shall haue no aduantage of the quarter of a yeare.

5. H. 4. cap. 12. A Statute beeing once shewed in the Common place, and the pro∣cesse afterwards discontinued, yet execution may afterwards be awarded without shew∣ing it againe.

11. H 6. cap. 10. He that is in prison vpon a Recognisance, shall not be deliuered out of prison vpon a Scire facias against the par∣tie, and suretie thereupon found to the king alone, but shall finde sureties seuerally as well to the King as to the other partie.

23 H 8 cap. 6. Either of the chiefe Iusti∣ces, or in their absence out of the Terme, the Maior of the Staple of Westm̄ with the Recorder of London may take Recogni∣sances. And they shall be executed in all re∣spects as a Statute staple.

27. Eliz. cap 4. Euery Statute Staple or

Merchant, not brought to the Clarke of Re∣cognisances within foure moneths next af∣ter the acknowledging, to enter a true copie thereof, shall be against all persons, their heires, successors, executors, administrators, and assignes onely, which for good consi∣deration shall after the acknowledging of the same Statute purchase the land, or any part lyable thereunto, or any rent, lease, or profit of it.

32. H 8. cap. 5. Lands lawfully deliuered in execution vpon a Iudgement or Recog∣nisance, being euicted without any fraud or default in the tenant before he haue leuied the whole debt and damages, the recouerer and the Recognisee shall haue a Scire facias out of the same Court where execution was awarded, returnable there full forty dayes after rhe date And thereupon a new writ of Execution of the nature of the former to le∣uie the rest of his debt and damages, if the defendant make default, or shew no good matter in barre.

Magn̄ chart̄ cap. 8. The King shall not take the lands or rents of the debtors, if he haue sufficient chattels.

Magn̄ chart̄ cap. 18. The goods of the debtor may be attached after his death by the view of lawfull men. That nothing shall be medled with till the Kings debt be payed.

33. H. 8. cap. 39. All Obligations to the king shal be of the force of a statute staple.

Prerogatiue.

The King may haue a distringas to leuie an amercement, or such like, by distresse •• sale, whether it be an Amercement in the Leet, or Sherifes turne, or otherwise.

A Capias ad satisfaciendum is to take his * 1.831 bodie in execution, for satisfying of the partie. And this is alwayes vpon a reco∣uerie * 1.832 in a personall action where a Capias lay. Therefore it lyeth not in any reall acti∣on as in a writ of dower, or other proecipe quod reddat, nor at the Common Law in debt, detinue, account, &c. but in actions of * 1.833 trespasse, and such like. And here an exigent shall be awarded vpon the first Capias, for if he were taken by the Capias, he should pay vnto the King a fine for a trespasse ad∣iudged against hlm.

Prerogatiue.

Of this nature are two speciall writs by the Kings prerogatiue. Capias pro fine Regis, and capias vtlagatum.

Capias pro fine Regis, when the partie is * 1.834 adiudged to pay a fine vnto the King.

Capias vtlagatum, to take one outlawed, * 1.835 which is a kind of Iudgement and deter∣mination of the originall writ as appeared before.

These are the Iudiciall writs within the yeare and day.

A scire facias which lyeth after the yeare and the day, is to warne the defendant vp∣on * 1.836 recouerie in reall actions, for in personal actions debt onely lay after the yeare, which is a new originall, till Westm̄ 2. cap. 45. gaue a scire facias, to shew cause why the Plaintife should not haue execution. Ther∣fore here the defendant may plead matters * 1.837 growing after iudgement rendred to oust the other of his execution, as outlawry, &c. or a release of all actions, for in as much as he may plead vpon this scire facias, it may well be called an action, though it be but a writ of execution. But notwithstanding that a man which recouereth debt or da∣mages, release to the defendant all actions, yet he may lawfully sue execution by a fieri * 1.838 facias, Capias ad satisfaciendum, &c. for these cannot be called actions. Here vpon a Nihil returned, execution shall bee presently a∣gainst the parties to the iudgement. But not (b) 1.839 against Executors, or Administra∣tors, nor in a scire facias vpon a (c) 1.840 Recog∣nisance * 1.841 or (d) 1.842 Charter of pardon, vpon an outlawrie, or such like, or to (e) 1.843 repeale a patent, for in all these cases two Nihils must be first returned. And therefore a scire facias sicut alias shall go forth. And the (f) 1.844 Solem∣nities of sōmons, attachment, essoyne, view of land, &c. lie not in this writ.

Statutes.

Westm̄ 2 cap. 46. For all things recorded before the Kings Iustices, or contained in fines (whether contracts, couenants, Obli∣gations, seruices or customes acknowled∣ged, or any other things enrolled) a Writ of Execution shall be within the yeare, so as the parties shall not need to plead: After the yeare a Scire facias. The like is of mesne who by Recognisance or Iudgement is bound to acquit.

In case of life the Iudge may command execution to bee done without any writ.

A woman (a) 1.845 quicke with child, (b) 1.846 the triall whereof is by a Iurie of women: and the writ for it is called a writ De ventre in∣spiciendo, shall for (c) 1.847 once and no more, be respited (a) 1.848 execution, but it is no plea vp∣on her arraignment, to say, that she is en∣seint, but she must answer to the felonie.

CHAP. 47.

Of new Originals in the nature of Iudiciall writs, to vndo matters concerning Iudgements.

THe new Originals in the nature of Iudiciall writs to vndoe some matters concerning Iudgements, whether it be the Iudgement it self,

or the verdict whereupon Iudgement is gi∣uen, that so the iudgment also may be vn∣done, or to auoid the execution growing vpon the iudgment, are either writs groū∣ded vpon error, or an Attaint, and Audita quaerela.

Writs grounded vpon Error, are a writ of Error and false Iudgment; both which lie vpon any Error in the proceeding, as well in Redditione executionis, (as vpon a Ca∣pias ad satisfaciendum, awarded for damma∣ges * 1.849 recouered in a reall action) as in Reddi∣tione Iudicij.

But Error in Processe, may the same Terme bee reformed in the same Court, Whether it be in the Kings Bench (a) 1.850 or Common place, (b) 1.851 and that by writ or without.

The Processe here is a Scire facias.

The partie bringing a writ to reuerse error in the Iudgement, may haue a Super∣sedeas to stay execution till the error be dis∣cussed, Whether it be matter apparent, or matter en fait, that is alledged for Errour. But no such Supersedeas shall bee vpon an Artaint; for that which is found by the oath of twelue men is intended true till it be reuersed, but it may as well be intended that there is an errour in the Record, as not.

A writ of Error is vpon an Errour in Court of Record.

And may be sued in the Kings Bench,

or Parliament.

In the Kings Bench when the errour is in any inferior court, whether the iudg∣ment be giuen in the Common Place, (a) 1.852 Chancerie, (b) 1.853 Citie, (c) 1.854 or Gorporat towne, as before the Maior of Excester, or other Court of Record; for no Wait of Error is returnable in the Common place.

Statutes.

9 Ric. 2, Cap. 3. If tenant for life, or in taile, after possibilitie of the issue extinct be impleaded, and iudgement passe against him, hee that is in the reuersion at the time of the iudgement, shall haue a Writ of Er∣ror vpon an error in the record of the same iudgement, as well in the life of such a te∣nant, as after his death. And if at any time of reuersing of the iudgement, the Tenant for life, &c. be aliue, he shall not bee resto∣red, &c. his possession, with the mesn, issues, and he in the reuersion to the arrerages of the same rent, if any be due. But if the te∣nant for life, &c. be dead at rhe time of the reuersing of the iudgement, then hee in the reuersion shall bee restored to possession, with the issues after the death of their Te∣nant for life, &c. and the arrerages of rent due in his life.

31 Ed. 3. Cap. 12. Errour in the Exche∣quer shall be reuersed before the Chancel∣lor, and Treasurer, taking to them the Iu∣stices,

and other such sage persons, as they thinke fit. And after the roll shall be sent backe into the Exchequer, to make execu∣tion.

31, Eliz Cap 1. If either Lord Chan∣cellor or Lord Treasurer, or both the chiefe Iustices, come at the day of adiournement in a writ of Error in the Exchequer, it shall be no discontinuance.

32. H. 8. Cap 30. made perpetuall. 2. E. ••. Cap. 22. After a verdict tried by twelue men, or more, in any suit in Court of Re∣cord, no iudgement shall be stayed or re∣uerfed for any mispleading, lacke of color, insufficient pleading, miscontinuance, dis∣continuance, miscontaining of Processe, misioyning of the issue, lacke of Warrant of Atturnie: for the partie against whom the issue is tried, or any other default or negligence of the parties, their councellors, or Atturnies.

18. Eliz. Ca. 4. After a verdict of twelue men, or more, in any suit in Court of Re∣cord, iudgement shall not be stayed or re∣uersed for default in form, or lack of form, as false Latin, variance from the Register, &c, in any writ originall or iudiciall, decla∣ration, bill, or plaint, or for want of any writ originall or iudiciall, or by reason of any imperfect or insufficient returne, or for want of any Atturny, or for any manner of

default in processe vpon, or after the praier or voucher.

27, Eliz. Cap 5. After demurrer ioyned or entred in any suit in Court of Record, the Iudges shall proceed and giue iudge∣ment according as the verie right of the cause and matter in law shall appeare vnto them, without regarding any imperfection, defect, or want of form in any writ, return, plaint, or declaration, or other pleading whatsoeuer; except those onely which the partie specially & {per}ticularly shal set down and expresse together with his demurrer. And that no iudgment to be giuen, shall be reuersed by any writ of Errour, or by any such imperfection, defect, or want of form, as is aforesaid, except as only be before ex∣cepted.

These two last statutes extend not to suits of felonie or murder, nor to enditemēt or presentment of them, or of treason, or other matter, nor to processe vpon any of them, nor to any suit vpon a popular or pe∣nall statute.

In the Parliament, when the errour is * 1.855 in the Kings Bench: And is returnable before the king and the lords only. The or∣der wherof is this, viz. The party that sueth it must haue a bill from the king indorsed; and thereupon the Chancellor must make him a writ of Error, and then the chiefe Iu∣stice of the Kings Bench shall bring with him (in the Parliament) vnto the Lords in the inner Parliament Chamber,

the writ of Error, and the bill endorsed, and all the Rols wherein are contained the pleas and processe in which error is suppo∣sed, and there shall leaue the transcript of all the Record and Processe, &c. together with the said writ of Error with the Clarke of the Parliament, who shall haue the cu∣stodie thereof. And by the Lords onely, and not the Cominalty shal a Steward be assig∣ned, who together with the Lords, by ad∣uise of the Iustices, shall proceed to amend the error.

Statutes.

27. Eliz. cap. 8. An error in the Kings Bench in an action of debt, detinue, coue∣nant, accompt, action vpon the case, Eiectio∣ne firme, or trespasse first commenced there (where the King is no partie) may at the parties choise be reuersed in the Exche∣quer chamber before the Iustices of the Common place, and such Barons of the Ex∣chequer as are of the choise, or sixe of them at the least, other then for error concerning the iurisdiction of the kings Bench, or want of forme in a writ, returne, plaint, bill, de∣claration, pleading, processe, verdict, or pro∣ceeding whatsoeuer. And vpon the Iudge∣ment affirmed or reuersed, the Record shall be sent backe into the Kings Bench, to pro∣ceed and award execution thereupon.

The partie grieued with such reuersall or affirmation, may haue a writ of Error in the

Parliament as vpon iudgement in the kings Bench.

31. Eliz. cap. 1. Any three of the Iustices and Barons (if the full number come not) may receiue writs of error, award, processe, prefixe dayes for the continuance of the writs of Error.

False Iudgement is vpon error in a * 1.856 base Court.

Thus much of writs of Error and false Iudgement, there followeth an Attaint, and Audita querela.

Attaint is to enquire whether a Iurie of 12. men gaue a false verdict. That so the iudgement following vpon it may bee re∣uersed, * 1.857 and the partie restored to all that he hath lost, that is to say, if it bee the defen∣dant to his damages and whatsoeuer else: if the plaintife, to his title, his action, &c. for an attaint lyeth not till Iudgement bee gi∣uen, * 1.858 and if the Writ beare date before it shall abate. And this lyeth onely vpon a * 1.859 verdict by xij. for if hee lose in a Writ of right no atraint lyeth neither by the Com∣mon Law nor Statute, because it passeth by a Iurie of more then xij. that is to say, the grand assise. No more doth it in an enquest of office, & vpon a writ to enquire of dama∣ges * 1.860 in trespasse, for that may bee by a lesse number then xij.

And this must be brought in the life of him for whom it passed, and of some of them that gaue it, whom we call the petie Iurie,

for if either the (a) 1.861 partie himselfe, or (b) 1.862 all the petie Iurie bee dead, or (c) 1.863 all of them but one, the attaint faileth, and lyeth onely vpon a verdict in personall actions other than trespasses: for it seemeth that there was an attaint at the Common Law, be∣cause Westm̄ 1. cap. 37. speaketh of attaints * 1.864 without expressing any penaltie. And 34. E. 3 cap. 7. giueth it in plea reall as well as personall. So as it lay before in a plea perso∣nall, debt, detinue, couenant, and such like: but not in trespasse, for that is giuen by sta∣tute. And the reason why it lay not in an action of Trespasse, is because then vpon re∣uersing of the recouerie the K. shall lose his fine. Neither did it lye at the Common law in a plea reall of land, for Westm̄ 1. cap. 37. giueth it in that case. And the reason of that was, because he that loseth may haue a writ of right.

The Iurie here called the Grand Iurie, * 1.865 are 24. who are to be warned the first day. And the processe is against the partie som∣mons, * 1.866 resommons, as in a mortdancester, darrein presentment, and Iuris vtrum, a∣gainst the petie Iurie, venire facias and di∣stresse.

The petie Iurie must bee all present * 1.867 when the grand Iurie is taken, else it can neuer be taken, which was a great mischiefe at the Common Law, for it might be that some of them had nothing, and so would neuer appeare, And may plead in bar of the * 1.868 attaint, as a release, arbitrement, &c. for this

excuseth them of their false oath, but not in abatement of the writ, as another attaint * 1.869 hanging, that the demaundant had ioyntly with another not named in the writ: or if a woman bring it to say she is couert, &c.

The Plaintife in the attaint can giue no more euidence then was giuen at the * 1.870 first. But the defendant in affirmance of the first verdict may.

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 * 1.871 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, * 1.872 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 * 1.873 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) 1.874 can he not beeing in execu∣tion. Neither (b) 1.875 can he haue a Supersedeas before execution oftner then once, though (c) 1.876 it bee vpon new matter. But if the

(d) 1.877 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 * 1.878 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.

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) 1.879 Attachment vpon a contempt, for not executing or o∣beying them.

Of which nature are,

1. Commandatorie ones, these that fol∣low. * 1.880 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 * 1.881 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 * 1.882 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 * 1.883 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 * 1.884 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, * 1.885 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 * 1.886 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) 1.887 first to haue a coro∣die for his seruant, the (b) 1.888 other to haue a pencion granted to his Chaplein, (c) 1.889 till he be promoted to a benefice. Both (d) 1.890 these where the same are due. As (e) 1.891 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) 1.892 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 * 1.893 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 * 1.894 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, * 1.895 &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 * 1.896 is betweene two persons of a Church of prebends about the title, and one with force and armes holdeth the other out: and (a) 1.897 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, * 1.898 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 * 1.899 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, * 1.900 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 * 1.901 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 * 1.902 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) 1.903 ordenarie himselfe to command him to bee deliuered, which the ordinarie may doe by word, or to (b) 1.904 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 * 1.905 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 * 1.906 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 * 1.907 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, * 1.908 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 * 1.909 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 * 1.910 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 * 1.911 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. * 1.912 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 * 1.913 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 * 1.914 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, * 1.915 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, * 1.916 for goods in their possession annexed to their Churches.

Quod clerici non eligantur in officium baliui, * 1.917 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 * 1.918 Knight seruice, or in soccage, to commit

wast to the destruction of the inheritance. * 1.919 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 * 1.920 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 * 1.921 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 * 1.922 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 * 1.923 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 * 1.924 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 * 1.925 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 * 1.926 the Kings licence.

FINIS.

Notes

• (a) 1.1

  4. H. 6. 16.
• * 1.2

  (b) 5. E. 4. 7.
• * 1.3

  (c) 7. H. 6. 5.
• * 1.4

  4 H. 6. 16.
• * 1.5

  14. H. 6. 20. in a Sommons ad War∣rantizandum. F. N. B. 73. in a Re∣pleuin.
• * 1.6

  7. H. 6. 4••.
• * 1.7

  44. E. 3. 18.
• * 1.8

  20. E. 47.
• * 1.9

  44. E. 3. 3.
• * 1.10

  44. E. 3 2.
• * 1.11

  9. E. 4. 42.
• * 1.12

  9. E. 4. ibid.
• * 1.13

  15. El. Pl. 434.
• * 1.14

  (a) 21. H. 9. 24.
• * 1.15

  (b) 5. E. 4. 1.
• * 1.16

  18. Eliz ploy. 483. 21. H 7. 19. 39. H. 6. 26. Stamf. praef. 56.
• * 1.17

  3. Eliz. ploy. 229.
• * 1.18

  3. Eliz. ploy. 229. 5. E. 4. 7.
• * 1.19

  Lit. 39.
• * 1.20

  41. E. 3. Villen. 6.
• * 1.21

  21. E. 4. 21.
• * 1.22

  1. H. 7. 20 the higher house. Br. Recogn. 8. the lower house.
• * 1.23

  23. El. Dyer 375. 1. H. 7. 19.
• * 1.24

  37, Ass pl. 17.
• * 1.25

  21 E. 3. 46. Br. Parliament 16.
• * 1.26

  34. H. 6. 41.
• * 1.27

  2. E. 4. 1.
• * 1.28

  Fitz. Nat. Br. 68. ••
• * 1.29

  Fitz. Nat. Br. ibid
• * 1.30

  2. H. 6. 7.
• * 1.31

  7. E. 4. 14.
• * 1.32

  2. H. 6. ibid.
• * 1.33

  2. H. 6. ibid.
• * 1.34

  7. E. 4. 14. 8. H. 6. 3. 12. E. 4. 15.
• (a) 1.35

  4. El. Pl. 213.
• * 1.36

  (b) C••. Court•• fol. 108.
• * 1.37

  38. H. 8. Br. Pa∣tents 101.
• * 1.38

  37. H. 6. 21.
• * 1.39

  Stat. 5. El ca. 18.
• * 1.40

  10. El. ploy. 320.
• * 1.41

  10. Eli. ibid.
• * 1.42

  10. Eliz ibid.
• * 1.43

  4. E. 4. 24. He may take Inquisitions virtute officij.
• * 1.44

  F. N. E. 82.
• (a) 1.45

  22. B. 4. 22.
• (b) 1.46

  10. H. 6. 7.
• (c) 1.47

  22. E. 4. ibid.
• * 1.48

  F. N. B. 161. Brit. per Br. leet 39
• * 1.49

  12. H. 7. 18. 25. E. 3. 23. ••
• * 1.50

  Brit. per Br. ibid.
• * 1.51

  F. N. B. ibid.
• * 1.52

  Stat. Marl ca. 16. so reciteth it.
• * 1.53

  2. H. 4 24. 8. R 2. auowry 194.
• * 1.54

  Stamf. ••••.
• * 1.55

  14. H. 7. 31. 4. H. 7. 3.
• * 1.56

  Diu. of courts f. 102
• * 1.57

  Diu of courts f 102 Stamf. 57. a.
• * 1.58

  Fit. N. B. 82. 23. E. 3. 22.
• * 1.59

  ••1. E. 4. 22.
• (a) 1.60

  22. E. 4. 22.
• (b) 1.61

  F. N. B. 161. Brit. {per} Br. l••et 39.
• (c) 1.62

  2. H. 4 24. 8. R. 2 Auowry 194
• (d) 1.63

  31. H. 6. leet 11
• (e) 1.64

  12. H. 7. 18.
• (f) 1.65

  29. E. 3 21. Auowry 247.
• (ff) 1.66

  6 E. 4. 3. 7 E 4 23. A writ of Errour lieth there, and not a writ of false iudg.
• (g) 1.67

  Stat. 17. E. 4. ca 2 so reciteth it.
• (h) 1.68

  13. E 4 8. Ibid.
• (i) 1.69

  4. M. Dy. 133▪
• * 1.70

  42. ass. pl. 12.
• * 1.71

  F. N. B. 239. {pro} Br. iurisd. 99. F. N. B. 239 g.
• * 1.72

  Br. leet 32.
• * 1.73

  21. E. 4. 5.
• * 1.74

  16. H. 7. 14.
• * 1.75

  6. E. 4. 3.
• * 1.76

  F. N B. 82.
• (a) 1.77

  34. H. 6. 49.
• (b) 1.78

  13. H. 7. 19. 12. H 7. 17.
• * 1.79

  12. H. 7. 18.
• * 1.80

  F. N. B. 1••.
• * 1.81

  10. El. Dyer 2••••. 5. El. Dy. 220.
• * 1.82

  14. E▪ 4 4.
• (a) 1.83

  2. Mar. Br. attaint 104.
• * 1.84

  (b) Br. bill 35.
• * 1.85

  9. E. 4. 27.
• * 1.86

  Regist fol. 228 et per Br pledg 29.
• (a) 1.87

  ••. E. 3. 4.
• (b) 1.88

  9. H. 7. 16.
• (c) 1.89

  3. E. 3. 86.
• (d) 1.90

  3 E. 3 ibid. All this that fol∣loweth is the rule of the Register.
• (a) 1.91

  8. E 4. 24. E 4. 24. saith, the reason is because there are in Englād no more Dukes of that name: and so i•• may well enough be knowne of whom it is meant: and also for the selemnitie of the creation. But o∣therwise it it of knights for there are 1000. Knights in England. Therefore there the writ must be pracipo I. S. mi∣liti.
• (b) 1.92

  27 H. 6. 3.
• (a) 1.93

  13. E. 3. br. 675 in act reall.
• (b) 1.94

  12. H. 4. 20. in Assise. 10. H. 7. 5. in wast. 18 Ed 4. 17. in an∣nuitie.
• (c) 1.95

  30. H. 6. 5.
• (d) 1.96

  9 E. 3. 465. 33. H. 8 Dy. 50. 37. H. 6 29. 27. H. 6. 3.
• * 1.97

  Regist. fol. 2••8. & per Br. pledg 29.
• * 1.98

  Lit. 116.
• * 1.99

  18. E. 4. 4.
• (a) 1.100

  1. H 4. 5. Stamf. 62, a.
• * 1.101

  20. E. 3. Audit. Querela 28.
• * 1.102

  36. H 6. 28.
• * 1.103

  3. H. 4. 13.
• (a) 1.104

  Stāf. prer. 73.
• (b) 1.105

  Stāf. prer. 73.
• (c) 1.106

  Stamf. prer. 42.
• (d) 1.107

  34. H. 6. 5.
• * 1.108

  9. H. 6. 15.
• * 1.109

  Stamf. prer. 76.
• * 1.110

  7. H. 4 33▪
• * 1.111

  ••. E. 4. 24.
• * 1.112

  ••. E. 4. 52.
• * 1.113

  Lit. 116.
• * 1.114

  10. E. 9. 23.
• * 1.115

  F. N. B. 5 ••.
• * 1.116

  Lit. 115.
• * 1.117

  Old tenures fol. 2.
• * 1.118

  6 E. 6. Pl. 87.
• * 1.119

  4. E▪ 4. 32.
• * 1.120

  19. H 6. 32. 22. H 6. 12.
• * 1.121

  (a) 45 E. 3. 5.
• * 1.122

  (b) 37 H 6 8. 27. H. 8. 30.
• * 1.123

  41. E. 3. 16.
• * 1.124

  Old N. B. 124. Fit. N B. 201 •• & f.
• * 1.125

  Fit. N••t Br. ibid.
• * 1.126

  Old Nat. Br. {per} Br. Formd 69. 3. El. Pl 235.
• (a) 1.127

  Old Nat. Br. 148. 149.
• (b) 1.128

  F. N. B. 217. d.
• (c) 1.129

  Fitz. ibid.
• * 1.130

  Fit. N Br. 219. c. 30. E. 1. formd. 65.
• * 1.131

  Old Nat. Br. 6.
• * 1.132

  Br. pr••••. qd rodd. 35
• * 1.133

  Fit. Nat. Br. 5. f.
• * 1.134

  Fitz. Na. Br. 139.
• * 1.135

  13. H. 7. 27.
• * 1.136

  ibid.
• * 1.137

  5. E 4. 2. 13. H. 7. 27. 15. E. 4. 29.
• * 1.138

  Old Nat. Br. 162.
• * 1.139

  Ibid.
• * 1.140

  16. H. v. 1. 34. E. 3. Dis••. 24.
• * 1.141

  16. H. 7. 1.
• * 1.142

  F. N. B. 151. g.
• * 1.143

  Fit. N. B. 151. b.
• * 1.144

  Fit. N. B. 122. ••.
• * 1.145

  Fit. Nat. Br. 33. h.
• * 1.146

  Fit. Nat. Br. 123. ••.
• (a) 1.147

  F. N. B. 128. a.
• * 1.148

  (b) F. N. B. 127. b. & 128. a. F. N. B. 146. f.
• * 1.149

  Fit. N. Br. 135. m.
• * 1.150

  F. N B. 134. d.
• (a) 1.151

  12. H. 4. 22.
• * 1.152

  Fit. Nat. Br. 134. k ••2. H. 6 22.
• (a) 1.153

  42. E 3. 5.
• (b) 1.154

  T. H Eitz.
• (c) 1.155

  Iohn per Dy. 179.
• (d) 1.156

  21. E. 3. 18.
• * 1.157

  42. E. 35. 40. E. 3. 7.
• * 1.158

  22. N. 6. 57.
• * 1.159

  27. H 8. 4. 37. H. 6. 5.
• * 1.160

  7. Eliz. Ploy. 360.
• * 1.161

  (a) Lit. 12. is that in a feoffement made on pai••. &c. where a freehold passeth, be it by deed or without, there must needs be liuery of seisin, which words (en pais) are put to exclude fines that are feoffements of record.
• * 1.162

  (b) 18. E. 422.
• * 1.163

  (c) 36. H. 8. Br. fines 118.
• * 1.164

  Lit. 104.
• * 1.165

  7. Ed. 2. 37. Contin. cl••••m 7.
• * 1.166

  Lit. 14••.
• * 1.167

  15. E. 4. 1.
• * 1.168

  48. E. 3. 15.
• * 1.169

  37. H. 6. 5.
• * 1.170

  Fit. Nat. B. 177. ••.
• * 1.171

  31. ass. Pl 31. 32. ass. Pl. 10.
• * 1.172

  F. N. B. 184. g.
• * 1.173

  The forme of the writ F. N. B. 195. 14. El. Dy. 310. is that the 3 poynts to be inquired in a Mortdancester (all expressed in the writ) are 1 whether the ancestor were seised in see day of his death. 2. whe∣ther the demandāt be his next heire. 3. whether the an∣cestor died within fiftie yeres next be∣fore the writ pur∣chased.
• (a) 1.174

  F N. B 196. k
• (b) 1.175

  F. N. B. 195. d 4 El. Pl. 239.
• * 1.176

  F. N. B. 195. d.
• (a) 1.177

  F. N. B. 31. g. old N B. 33.
• (b) 1.178

  F. N. B. 31. i. 5 H. 7. 16.
• * 1.179

  F. N. B. 48. r.
• * 1.180

  Lit. 53, 65, 72.
• * 1.181

  Lit. 98. 5. E. 3. parti••. 11.
• * 1.182

  2. H. 7. 5. 11 H. 4. 3. 28 H. 6. 2. 21 E. 3. 7. 28 H. 8. Dy. 29.
• * 1.183

  F. N. B. 197.
• * 1.184

  F. N. B. 128.
• (a) 1.185

  22. H. 6. 27.
• (b) 1.186

  Br. Costs 29.
• * 1.187

  (c) 21. E. 4. 3.
• * 1.188

  (d) 11. H 4. 83.
• * 1.189

  (e) 8. E. 4. 3.
• * 1.190

  21 E. 4. 23. 16. H. 7. 4.
• * 1.191

  32 H. 6. 25.
• * 1.192

  22. H. 6. 12. 38 E. 3. 7.
• * 1.193

  45. E. 3. 3.
• (a) 1.194

  1. E. 5. 6.
• (b) 1.195

  Br. Detin. 48.
• (a) 1.196

  50 E. 3. 16. ••1 H. 7. 5.
• (b) 1.197

  50 E. 3. ibid.
• (c) 1.198

  19 H. 8 8.
• (d) 1.199

  10 H. 7. 5.
• (e) 1.200

  ibid.
• * 1.201

  15 El. Pl. 441.
• (g) 1.202

  47 E. 3. 33.
• (h) 1.203

  ibid.
• * 1.204

  10. El. Pl 321.
• (a) 1.205

  F. N. B. 152. a
• (b) 1.206

  F. N. B. 152. b.
• (c) 1.207

  F. N. B. 152 c.
• * 1.208

  Old N. B. 62.
• * 1.209

  Old N. B. 65.
• * 1.210

  F. N. B. 116. p.
• * 1.211

  Lit. 118.
• * 1.212

  F. N. B. 141. d. f.
• * 1.213

  F. N. B. 141: g.
• * 1.214

  F. N B. 140.
• * 1.215

  F N. B. 197.
• * 1.216

  So is the Law now adiudged.
• * 1.217

  38. H. 6 9.
• * 1.218

  22. H. 6. 4••.
• * 1.219

  33 H. 6. 10.
• * 1.220

  F. N. B. 116. a, b, ••.
• * 1.221

  F. N. B. ••39. d. F. N. B. ••5. f. 86. a.
• * 1.222

  (••) F. N. B. 239. d.
• * 1.223

  3. H 6. 54.
• * 1.224

  F. N B. 100.
• * 1.225

  F. N. B 101. c. F. N. B. 102. f.
• (a) 1.226

  F. N. B. 220. h.
• (b) 1.227

  F. N. B. 220 f.
• (a) 1.228

  Lit 116.
• (b) 1.229

  8. El. Pl. 476.
• (a) 1.230

  33 H. 8. Dy. 50
• (e) 1.231

  33. H. 8. ••. Stamf. 50.
• * 1.232

  7 E. 4. 15.
• * 1.233

  Old N B. 12. A writ of right patēt. F N. B 85. of Tre∣spasse. F N. B. 2 f. of a Writ of right patēt. F N. B. 86. of Tre∣spasse vicontiel.
• * 1.234

  6 E. 4 3. ••5 H. 6. 5.
• (a) 1.235

  F. N. B. 1. b.
• (b) 1.236

  F. N. B. 30.
• (c) 1.237

  14 E. 3 dr. 31.
• (d) 1.238

  ibid.
• (e) 1.239

  F. N. B. 1. b.
• (g) 1.240

  F. N. B. 3 c. & 8. a, b.
• * 1.241

  (f) Old N. B. 1.
• (h) 1.242

  F. N. B. 2. f.
• * 1.243

  F. N. B. 1. i. F. N. B. 4.
• * 1.244

  (b) Old N. B. 10. F. N. B. 9. b. Old N. B. 10. Ibid. 8 El. F. N. B. 9 b. It lyeth also where the An∣cestor died seised. F. N. B. 9. b. Old N B. 10.
• * 1.245

  F. N. B 9. g.
• * 1.246

  Old N B. 10. F. N. B. 9. g. F. N. B. 9. n F. N B. 197. ••. d. 7. H. 6 8.
• * 1.247

  F. N. B. 6.
• * 1.248

  F. N. B. 184 b.
• * 1.249

  F. N. B. 148.
• * 1.250

  ibid.
• * 1.251

  F. N B. 125. b & d
• * 1.252

  F. N. B. 77. a.
• * 1.253

  F. N. B. 77. b.
• * 1.254

  F. N B. 77. a.
• * 1.255

  Old N B. 73.
• * 1.256

  Ibid. 73, & 74.
• * 1.257

  F. N. B. 66 ••.
• (a) 1.258

  F. N. B 66 f.
• (b) 1.259

  F. N. B. 67.
• * 1.260

  F. N. B. ••8. d 4 H. 6. 30.
• * 1.261

  F. N B. 70. ••, b.
• * 1.262

  F. N. B. 70. b.
• * 1.263

  2 H. 7. 6.
• * 1.264

  4. Deputies to make Repleuins.
• * 1.265

  (a) F. N. B. 151. b. Ibid. 123. a. Ibid. 123. f. Ibid 135. ••. Ibid 148. b. Ibid. 152. b. Ibid 119. g. Ibid. 138. b. Ibid. 117. b. Ibid. 145. c. Ibid. 85 f 86 g. In Ibid 86. For they are as a•• Commissiō in effect. And the Sherife may deter∣mine them by En∣quest, according to the course of the cō∣mon Law.
• * 1.266

  F. N. B. 110. b.
• * 1.267

  Ibid.
• * 1.268

  F. N. B. 111. b.
• (a) 1.269

  F. N. B. 111. d F. N B. 185. ••. in an assise.
• (b) 1.270

  F. N. B. 111 d Fit. Nat. B. 111. c.
• (c) 1.271

  F. N B. 186. ab.
• (d) 1.272

  F. N. Br. 221
• * 1.273

  Old Nat. Br. 74.
• * 1.274

  22. Ass pl. 64. Br. Iur 98. 14 H. 8. 15. Ibid.
• * 1.275

  Stamf. 64.
• * 1.276

  (a) Stamf. 55. ••
• * 1.277

  (b) Stamf. 64.
• * 1.278

  6 E. 4. 3.
• * 1.279

  10 H. 7. 14.
• * 1.280

  Quo warranto in Iustices circuits.
• * 1.281

  F. N. B. 1••••. ••.
• * 1.282

  21 E. 3 2.
• * 1.283

  3 H. 7. 3.
• * 1.284

  4 H. 7. 7
• * 1.285

  4 E 4. 24.
• * 1.286

  (a) Ibid. 34 H. 6 5. 4 E. 4▪ ibid.
• * 1.287

  14 H. 7. 23. 25.
• * 1.288

  Stamf. Prer. 54.
• * 1.289

  41 E. 3. 11. 11 H. 4. 5.
• * 1.290

  4 E. 4. 24. •• H. 4. 5.
• * 1.291

  14 E. 4 5. 6 H. 7. 15.
• * 1.292

  (a) Stamf. prer. 52.
• * 1.293

  (b) F. N. B. 235. c.
• * 1.294

  (c) F. N B. 252.
• * 1.295

  14 E. 4 c. F. N. B. 253. c.
• * 1.296

  Stamf. 52. F. N B. 253. ••. F. N. B. 253. b. Stamf ibid••. Fitz ibid. 4 ••. •• 24.
• * 1.297

  F. N. B. ••••5.
• (a) 1.298

  E. 4. 24.
• (b) 1.299

  F. N. B. 255.
• * 1.300

  2 H. 7. 2.
• * 1.301

  F. N B. 257.
• * 1.302

  Stamf pr••. 52.
• * 1.303

  F. N. B.
• * 1.304

  32 H 8. Br. liuerie et ouster lemain 62
• * 1.305

  (a) 44. E. 3 25.
• * 1.306

  (b) 2 H. 7. 12.
• * 1.307

  (c) F. N. B. 156.
• * 1.308

  1 H. 7. 28.
• * 1.309

  5 E. 4 4.
• * 1.310

  Stamf prer. 58.
• * 1.311

  31 E. 1 Endite. 31.
• * 1.312

  9 E. 4. 10:
• * 1.313

  2 E. 3. 28.
• * 1.314

  7 E. 3. 324.
• (a) 1.315

  12 H. 7. 18. Constables and Bor∣sholders are Conser∣nators of the peace at the Cōmon law.
• (b) 1.316

  22 E. 4. 35.
• (c) 1.317

  9. E. 4 26.
• (a) 1.318

  9. E. 4. 26.
• (b) 1.319

  9. E. 4. ibid.
• (c) 1.320

  20 E. 4. 6.
• (d) 1.321

  11 E. 44.
• (a) 1.322

  9 E 4 ibid.
• (b) 1.323

  11 E. 4. ibid.
• * 1.324

  27 H. 8. 3.
• * 1.325

  35. H. 6. 27.
• * 1.326

  13 ••. 2 Iudg. 170.
• * 1.327

  ••7 H. 6. 26.
• * 1.328

  Old N. B. 177. 50 ••. 3. 16.
• (a) 1.329

  38 H. 6. 33.
• * 1.330

  Old N. B. ibid.
• * 1.331

  S〈…〉〈…〉. P••••r. 84.
• * 1.332

  22 H 6. 41.
• (a) 1.333

  35 H. 6. Br. Attachment 20.
• (b) 1.334

  7 H. 6. 10.
• (c) 1.335

  27 H. 6 2.
• (d) 1.336

  9. H. 7. 9.
• (e) 1.337

  ibid.
• (a) 1.338

  Br. per Stamf. 15.
• (b) 1.339

  32 E. 3. Exi∣gent 14.
• (d) 1.340

  35. H. 6. 6. Br. Exigent 24. 11. H. 7. 26.
• (a) 1.341

  22 E. 3. 11.
• (b) 1.342

  38 E. 3. 1.
• (c) 1.343

  14 E. 3. E••. 17
• (d) 1.344

  17 E. 3. 43.
• (e) 1.345

  22 E. 3. 11.
• * 1.346

  Lit. 43.
• (a) 1.347

  9. H. 6. 20.
• (c) 1.348

  30. H. 6. 20.
• (d) 1.349

  9. H. 6. 20.
• (a) 1.350

  20. H. 7. 13.
• (b) 1.351

  50. ass pl. 1. 19. H. 6. 47.
• (c) 1.352

  16. E. 4. 4. 50 ass pl. 1. 9. El. Dy. ••62. 3. E. 3. Cor. 343. contr. Stāf. 188. b.
• (d) 1.353

  So ass. pl. 5. 28 E. 3. 92.
• (e) 1.354

  Stamf. 188. b.
• (f) 1.355

  28. E. 3. 92.
• (g) 1.356

  Stamf. 188. b.
• * 1.357

  22. ass. pl 81.
• * 1.358

  22. H. 6. 38. 34. H. 6. 49.
• * 1.359

  F. N. Br. 92. g. 2. H. 4. 25.
• * 1.360

  21. H. 6. 56.
• * 1.361

  24. El. Fairfaxes case in the Cōmon place.
• * 1.362

  D. Stud. per Br. issues 23.
• * 1.363

  22. H. 6. 4.
• * 1.364

  5. H. 7. 1. Br. 〈◊〉〈◊〉 41.
• * 1.365

  Br exigent. 72. It •••• error if he be outlawed. 26. H. 8. 7.
• * 1.366

  F. N. B. 73. & 74.
• * 1.367

  11. H. 7. 22.
• * 1.368

  11. H. 7. ibid. Lit. 85.
• * 1.369

  8 E. 4. ••. 45. E. 3. 25.
• * 1.370

  8. E. 3. 381. 26. H. 8. 3.
• * 1.371

  ••. Mar. Dy. 114. 13. H. 8. 16. 19. H. 6 32.
• * 1.372

  Br. Esplees. 11. 21. H. 6. 22.
• * 1.373

  9. H. 6. 53. 50. E. 3. 1.
• * 1.374

  7. El. Ploy. 343.
• * 1.375

  48. E. 3. 10.
• * 1.376

  4. El. Plo. 276.
• (a) 1.377

  48. E. 3. 1.
• (b) 1.378

  1. H. 7. 25.
• (c) 1.379

  41. E. 3. 3.
• (d) 1.380

  48. E. 3. 33.
• (e) 1.381

  9 H 6. 46.
• (f) 1.382

  age 16.
• (g) 1.383

  48. E. 3. 33.
• (h) 1.384

  48. E. 3. ibid.
• (i) 1.385

  12: E. 4. 17. Age 18.
• * 1.386

  48. E. 3. 35.
• * 1.387

  39. H. 6. 39.
• (a) 1.388

  44. E. 3. 4••.
• * 1.389

  12. H. 7. 3.
• * 1.390

  Bracton.
• * 1.391

  3. H. 6. 40. Lit. 44.
• (a) 1.392

  30. E. 3. 20.
• (b) 1.393

  4. E 3. 166.
• (c) 1.394

  4. E. 3. 134. 135.
• (d) 1.395

  24. E. 3. 47. 35.
• * 1.396

  3. E. 3. 70.
• * 1.397

  22. H. 6. 41.
• * 1.398

  Stam. 82. •• of an assise. F. N. B. So k of a Iuris verum al∣so. 1. E. 4. 4.
• * 1.399

  ••2. E. 4 39.
• (a) 1.400

  38. E. 3▪ per 46. E. 3. 14.
• (b) 1.401

  46. E. 3. 14.
• (c) 1.402

  32. H 6. 24.
• (d) 1.403

  33. H. 6. 3.
• (e) 1.404

  33. H. 6. ibid.
• (f) 1.405

  9. E. 4. 5.
• (g) 1.406

  2 H 4. 21.
• (a) 1.407

  46. E. 3. 14.
• (b) 1.408

  41. E. 3. 4.
• (c) 1.409

  43. E. 3. 16.
• (d) 1.410

  4. E. 6. Br. Iourneys accom. 23.
• (e) 1.411

  7. H. 6. 16. ••3.
• (f) 1.412

  14. H. 4. p•••• 7. H. 6. 34.
• (g) 1.413

  7. H. 6. 23.
• * 1.414

  Stat. West. 2. c. 48. from henceforth view shall no•• be granted, but where it •••• necessarie, &c. sheweth that it did lye in those cases at the common Law. And this view must be demanded before any plea in bar, &. may be after plea∣dieg to the writ: for though one plead a plea that goeth to the action (as that the plaintife in a writ of dower is an alien) yet if he con∣clude to the writ, he may haue view after 3. H. 6. 55.
• * 1.415

  31 E. 3. Ioind in aid 10. 33 H. 6. 29.
• * 1.416

  31. E. 3. Ioynd. •••• ayd. 10. F. N. B. 1••4. ••▪
• * 1.417

  F. N. B. 134. k. 22. H. 6. 22.
• (a) 1.418

  45. E. 3. 23. 14. H. 6. 2. Br. Seq sub, &c. 3.
• * 1.419

  (b) Old N. B. 1•• Old N. B. ibid.
• * 1.420

  13. E. 3. Iudgement 117
• * 1.421

  3. H. 7. 13. Br. re∣c••••. en value 40.
• (a) 1.422

  Park. 61. ••.
• (b) 1.423

  Park. ibid.
• * 1.424

  15. H. 7. 10.
• * 1.425

  9 H. 6. 4.
• * 1.426

  1. E. 3 4.
• * 1.427

  F. N. B. 178. c.
• * 1.428

  14 E. 4. 2.
• (a) 1.429

  21. H. 6 35.
• (b) 1.430

  40. E. 3. 11.
• (c) 1.431

  20. E. 4. 13.
• * 1.432

  (d) 40. E. 3. 11.
• * 1.433

  (e) 4. E. 3. ibid.
• * 1.434

  21. H. 6. 35.
• (a) 1.435

  33. H. 6. 25. 8. H. 6. 30.
• (b) 1.436

  3. H. 6. 44.
• (c) 1.437

  19. H. 6. 68.
• (d) 1.438

  8. H. 6. 30.
• * 1.439

  (e) 33. H. 6. 25.
• (f) 1.440

  8. H. 6. ibid.
• * 1.441

  33. H. 6. ibid. 8. H. 6. ibid.
• (a) 1.442

  1. H. 7. 25.
• (f) 1.443

  Stamf. 111. The Abbot of bat∣taile had so.
• (d) 1.444

  1. H. 7. 26.
• (e) 1.445

  1. H. 7. 25.
• * 1.446

  34. H. 6. 33.
• * 1.447

  Litl. 150.
• (a) 1.448

  42. E. 19.
• (b) 1.449

  21. E. 4. 82.
• * 1.450

  (c) Lit. Chap. of G••••ranty.
• (d) 1.451

  50. E. 3. 12.
• (a) 1.452

  22. H. 6 50.
• (b) 1.453

  2. E. 48.
• (c) 1.454

  15. H. 7. 10.
• (d) 1.455

  21. E. 4. ibid.
• (e) 1.456

  32. H. 6. 1.
• * 1.457

  (f) 21. E. 4. & 5.
• * 1.458

  38. H. 6. 7.
• * 1.459

  19. H. 6. 31.
• * 1.460

  32. H. 6. 6.
• * 1.461

  19. H. 6. 21.
• * 1.462

  16. E. 4. 9. 3. E. 3. Dr. 26.
• (a) 1.463

  3 & 4. P. & M. Dy. 149. 21. E. 3. 9. 6 & 7. E. 6 Dy. 81 34. H. 6. 22. Br. Exec. 22.
• * 1.464

  6 & 7. E. 6. Dy. 81. Where the heire is condemned by a Nihil dicit, execu∣tion shall be of lands descended by a speci∣all Elegit not of his goods, &c. nor no Cap. ad satisf. lyeth against him. 21 E. 3 ibid.
• (a) 1.465

  40 E. 3. 29.
• (b) 1.466

  2 E. 3. 62. 22 E. 4. 3••.
• * 1.467

  12 E. 2. Iur. v••r. 12
• * 1.468

  4. H. 6. 15. 22 E. 4. 39. Ibid.
• * 1.469

  1. E. 5. 5.
• (a) 1.470

  9. E. 4. 2.
• (b) 1.471

  Stamf. 151. b.
• * 1.472

  •• H. 7. 23. 32. H. 8. Dy. 13. 41. E. 3. 27.
• * 1.473

  5. H. 7. 3.
• (a) 1.474

  9. H. 6. Co•••• ••
• (b) 1.475

  1. H. 7. 5.
• (c) 1.476

  1. H. 7. ibid.
• (d) 1.477

  1. H. 5. Co. 441
• (e) 1.478

  Stam. 143. ••.
• (f) 1.479

  Stamf. 143. ••.
• (g) 1.480

  10. E. 4. 14.
• (a) 1.481

  The Stat. 32. H. 8 cap. 21. so reciteth it.
• * 1.482

  Stam. 119. b.
• * 1.483

  Stam. 116.
• * 1.484

  Br. Coro. 182.
• (a) 1.485

  Stam. 119. b.
• (b) 1.486

  Stam. 122. c.
• (c) 1.487

  4. El. Pl. 262.
• (d) 1.488

  3. E. 3. Co 33. f
• (a) 1.489

  33. H. 6. 36.
• (b) 1.490

  33. H. 6. 36.
• (c) 1.491

  ces Br. ass. 383
• (d) 1.492

  44. E. 3. 23.
• * 1.493

  8. ass. Pl. 1.
• * 1.494

  ce•• ibid.
• (a) 1.495

  19. H. 6. 65.
• (b) 1.496

  34. H. 6. 16.
• (c) 1.497

  41. ass. Pl. 21.
• (d) 1.498

  5. H. 7. 6.
• (e) 1.499

  2. E 4 9.
• (f) 1.500

  22 ass. Pl. 85.
• (a) 1.501

  21 H▪ 6. 5.
• (b) 1.502

  5. H. 7. 6. 2 E. 4. 9.
• (c) 1.503

  44. E. 3. 18. 22. ass. Pl. 185.
• (d) 1.504

  12. E. 4. 10.
• (e) 1.505

  H. 29. El. C. B.
• (f) 1.506

  B. Roy.
• * 1.507

  27. H. 8. 7.
• * 1.508

  15. H. 7. 2.
• * 1.509

  33 H. 6. 9.
• * 1.510

  35. H. 8. Br. repled. 54. 7. H. 7. 3.
• (a) 1.511

  14. H. 7. 12.
• (b) 1.512

  5. H. 7. 29. 35. H. 6 37.
• * 1.513

  (c) 5 H. 7. 29.
• * 1.514

  19. H. 6. 57.
• * 1.515

  15. H. 7. 13.
• * 1.516

  15 H. 7. ibid. 5. H. 7. 29.
• (a) 1.517

  5. H. 7. ibid
• * 1.518

  (b) 14. H. 7. 6.
• * 1.519

  (c) 46. E. 3. 11.
• * 1.520

  (d) 46. E. 3. 11. 10. H. 6. 26.
• * 1.521

  (e) 14. H. 7. 6. 4. H. 6. 10.
• * 1.522

  5. E. 4. aid de Roy 50. 3. H. 6. {per} Pl. 216.
• * 1.523

  9. H. ••. 38.
• * 1.524

  14. El. Pl. 410.
• * 1.525

  Old N. B. 171. The forme of the writ of venire fa∣cias.
• (a) 1.526

  41. ass Pl
• (c) 1.527

  26 ass. Pl. 28.
• (d) 1.528

  14. H▪ 4. 19.
• (e) 1.529

  21. H. 6. 30.
• (f) 1.530

  9. H. 6. 63.
• * 1.531

  28. H. 8. Dy. 30.
• * 1.532

  7. H. 4. 10.
• (a) 1.533

  8. ass. Pl. 23.
• (b) 1.534

  21. E. 4. 67.
• (c) 1.535

  20. H. 6. 39. for the Sherife.
• (d) 1.536

  38 E. 3. 25.
• * 1.537

  (e) 38. E. 3. ibid.
• * 1.538

  (f) 15. E. 4. 18. Br. chall. 68. 38. E. 3 ibid. ma∣keth a quaere of thi••
• * 1.539

  (g) 15. Eliz. Pl. 425. for the sherife. 21. E. 4. 63. for a Iuror.
• (a) 1.540

  21. H. 6. 39. for the Sherife. 3. H. 6. 24. for the Iuror.
• (b) 1.541

  11. H. 4, 26.
• (c) 1.542

  49. E. 3. 2.
• (d) 1.543

  49. E. 3. 1.
• (e) 1.544

  7. H. 4. 11.
• (f) 1.545

  21. E. 4. 67. for the sherife. 14. H. 7. •• for a Iuror.
• (g) 1.546

  49. E. 3. 1.
• (h) 1.547

  14. H. 7. 2.
• (i) 1.548

  11. H. 4. 26.
• (k) 1.549

  20. H. 7. 2.
• (l) 1.550

  14. H. 7. 2.
• (m) 1.551

  18. E. 4. 13.
• * 1.552

  7. H. 4. 17. 36. H. 8. Dy. 61.
• (a) 1.553

  15 Eliz.
• (b) 1.554

  49. ass. Pl. 1. 1.
• (c) 1.555

  49. E. 3. 19. 21. H. 6. 3.
• * 1.556

  4. H. 7. Coro. 60. 6. H. 7. 10.
• * 1.557

  19. H. 6. 18. by the common law. 40. E. 3. 36.
• * 1.558

  2. Mar. Pl. 117.
• * 1.559

  Preamble of the Stat. 7. E. 4. ca. 2. so reciteth it. 39. E. 3. 2. 39. E. 3 2. 1. Mar. Dy. 98. There must be 12. beside the foure Knights. Bra••. 42.
• (a) 1.560

  27. H. 8. 26.
• * 1.561

  (••) 14. H. 7. 31. 4. H. 7. 3.
• (d) 1.562

  8. H. 6. 12. 15. E. 4. 24.
• (e) 1.563

  15. E. 48.
• * 1.564

  27. H. 8. 26.
• * 1.565

  27. H. 8. 26.
• (a) 1.566

  49 E. 3. 1.
• (b) 1.567

  3. H. 6. 36.
• (c) 1.568

  19. H. 6. 9.
• (d) 1.569

  21. H. 7. 29. 27. H. 8. 26.
• * 1.570

  (e) 7. H. 4. 46. 7. E. 4. 17.
• * 1.571

  Stam. 157. b. Doct. St. {per} Br. chall. 11. in an appeal.
• * 1.572

  20 E. 4. 11. Stam. 159. ••.
• (a) 1.573

  Stam. 155 c.
• (b) 1.574

  Bract tales 11
• (c) 1.575

  37. H. 6. 12.
• (d) 1.576

  14 H. 7. 2.
• * 1.577

  14. H. ••. 7.
• * 1.578

  20. H. 7. 3. 6. H. 8. Dy. 3.
• (a) 1.579

  14. H. 7. 2.
• (b) 1.580

  14 H. 7. ibid.
• (c) 1.581

  13. E. 4. 3. 4. E 6. 12.
• (d) 1.582

  13 E. 4. ibid. 4. E. 6. ibid.
• (e) 1.583

  14 H. 7. ib▪
• (f) 1.584

  13. E. 4. ibid. 4 E. 6. ibid.
• * 1.585

  7. E. 6. Pl. 91. Ibid.
• * 1.586

  (a) 11. Ass. pl. ••.
• (b) 1.587

  48. E. 3. 33.
• (c) 1.588

  9 E. 4. 34.
• (d) 1.589

  48. E. 3. ibid.
• (e) 1.590

  48. E. 3. ibid.
• * 1.591

  28. Ass pl. 21.
• * 1.592

  Old N. B. 104.
• * 1.593

  14. El. D. 310. for all.
• * 1.594

  40. E. 3. 48. 39. Ass pl. 13.
• * 1.595

  9. E. 4. 3••.
• * 1.596

  9. H. 6. 38.
• * 1.597

  14. ass. Pl. 9. 4. E. 4. 33. 14. H. 6. 4.
• * 1.598

  10. El. Dy. 172.
• * 1.599

  39. E. 3. 10.
• * 1.600

  ••9. E. 3. 20. Br. abridgem. 111.
• * 1.601

  22. E. 4 Coro. 44.
• (a) 1.602

  Old Nat. Br. 1
• (b) 1.603

  See the manor of waging battails and performing it. 9. H. 4. 3. in an ap∣peale of robberie 17. E. 3. 2 ••n an ap∣peale of murder.
• (c) 1.604

  Old N. B. ibid. 9. E. 4. 35.
• (a) 1.605

  Br. Chal. 1 96.
• (b) 1.606

  3. H. 6. 55.
• (c) 1.607

  Bracton.
• * 1.608

  Westm. 1. cap. 40. so reciteth i••.
• * 1.609

  ••. E. 4. 35.
• * 1.610

  (a) 1. ass. Pl. 6.
• (b) 1.611

  22. E. 4. 19.
• (c) 1.612

  6. H. 3. Coro. 411.
• * 1.613

  22. E. 4. 29.
• * 1.614

  Discourse of the Cust. of London. fol. 13. Stam. 108.
• * 1.615

  8. H. 6. 23.
• * 1.616

  22. H. 6 41.
• (a) 1.617

  1. H. 6. 1.
• (c) 1.618

  9. E. 4. 1.
• * 1.619

  34. H 8. Br. leyga∣ger 97. 18. E. •• 23. 39 H 6 35. ••7. H. 8. 22.
• * 1.620

  18. H. 8. 3.
• * 1.621

  15. E. 4. 25.
• (b) 1.622

  2••. E. 3. 40.
• (c) 1.623

  11. H. 6. 48.
• (d) 1.624

  10 H. 6. Execut. 21.
• (e) 1.625

  Br. Execu. 33.
• * 1.626

  24 E. 3. 39. 18. E. 3. 4.
• * 1.627

  50. E. 3. 5.
• * 1.628

  1••. H. 7. 18.
• * 1.629

  7. E. 6. Pl. 85.
• * 1.630

  50. E. 3. 20.
• (a) 1.631

  12. H. 4. 24. 1. H. 6. 4.
• * 1.632

  (b) F. N B. 25 ••. 1. H. 6▪ ibid.
• * 1.633

  48. E. 3. 1.
• * 1.634

  7. E 4. 15. 8. H. 6. ibid. 3. H. 6. 14.
• * 1.635

  8. H. 6. 8. 3. H. 6. 13. 3. H 6. 50. 8. H. 6 ibid. 3. H. 6. 14.
• * 1.636

  10. ass. Pl. 12. in an assise. Old N. Br. 46.
• * 1.637

  48. E 3. 14. Br Som & Seu. 9. 7. H 6. 39. 41. B••. default. 34.
• (a) 1.638

  7. H. 6. ibid.
• (b) 1.639

  38 H 6. 33.
• (c) 1.640

  18. E. 4. 7.
• * 1.641

  9. H 5. 5. 35. H. 6 33.
• * 1.642

  18. E. 4. 4.
• (a) 1.643

  27. H. 6. 2. 21. E. 4. 16.
• * 1.644

  39. H. 6. 29.
• * 1.645

  27. H. 6. 2.
• (a) 1.646

  27. H. 6. 1.
• (b) 1.647

  2. E. 4. 16.
• (c) 1.648

  21. H. 6. 42.
• (d) 1.649

  44. E. 3. 15.
• (e) 1.650

  27. H. 6. 1.
• (a) 1.651

  24. E. 3. 48. 11. H. 7. 5.
• * 1.652

  3. H. 6. 40. Litlet.
• * 1.653

  21. E. 3. 49.
• * 1.654

  21. E. 4. 16. 7. H. 6. 39. 41. Br. defaut 34.
• * 1.655

  18. H. 8. 6. 41. E. 3. 1.
• * 1.656

  Br. Contin. 14.
• * 1.657

  22. H. 6. 12.
• * 1.658

  7. H. 6. ibid.
• * 1.659

  18. H. 8. 6.
• (a) 1.660

  22. H. 6. 7.
• (d) 1.661

  4. H. 6. 67. 16. E. 44. 32. H. 6. 33.
• * 1.662

  13. H. 7. 17.
• * 1.663

  32. H. 6. 27.
• * 1.664

  4. H. 7. 10.
• * 1.665

  4. H 6. 67. Br, Contin. 6.
• * 1.666

  22. E. 4. 1••.
• * 1.667

  38. H. 6. 33. 1. H. 7. 11. Br. defaut 34. 39. H 6. 16. 38. H. 6. 33.
• * 1.668

  22. Eli. Dy.
• * 1.669

  1. H. 6. 4.
• * 1.670

  Old N B. 171.
• * 1.671

  Old N. B. 170.
• * 1.672

  Old N. B. 170.
• * 1.673

  Old. N. B. 168.
• * 1.674

  Stam. praer. 73.
• (b) 1.675

  27. H. 8. 28.
• (c) 1.676

  15. Dy. 320.
• (d) 1.677

  27. H. 8. ibid.
• * 1.678

  38. H. 6. 33. 8. E. 44. for the Demurrer 38. H. 6. ibid.
• * 1.679

  Old N. B. 179.
• (a) 1.680

  2. H. 4.
• (b) 1.681

  ••••. H 4. 1.
• (d) 1.682

  30 H. 6. 8.
• * 1.683

  (c) Old N B. 71.
• * 1.684

  30. H. 6. ibid.
• * 1.685

  Old N. Br. 171.
• (a) 1.686

  Br. defaut 58.
• (b) 1.687

  34. H. 6. 24. 2. H. 4. Br. enq de dam. 11.
• (c) 1.688

  9. H. 5. 15.
• (d) 1.689

  5. E. 4. 6. 1. H. 7. 1.
• (e) 1.690

  1. H. 7. 1.
• (f) 1.691

  9. H. 5. 13. 42. E. 3. 1.
• * 1.692

  The forme of all these writs. (h) Old N. B. 106. in an assise of nouell disseisin, and 25. in darrein presentmēt.
• (i) 1.693

  F. N. B. 196. g
• (k) 1.694

  F. N. B. 50. k.
• * 1.695

  17. E. 3. 76.
• * 1.696

  5. H. 7. 40.
• * 1.697

  24. E. 3. 48. Br. res••••••. 33.
• * 1.698

  F. N. B. 14.
• * 1.699

  F. N. B. 16. c.
• * 1.700

  F. N. B. 52.
• * 1.701

  F. N. B. 59. b.
• * 1.702

  36. H. 8. Br. Cer∣cior. 20.
• * 1.703

  12. E. 4. 11.
• * 1.704

  3. H. 6. 3.
• * 1.705

  Fitz. N. B. 4▪ b.
• * 1.706

  Fit. N. B. 70. b.
• * 1.707

  Old N. B. 2. Fit. N. B. 4. a.
• * 1.708

  Old N. B. Ibid.
• (b) 1.709

  F. N. B. 4. b c.
• (c) 1.710

  F. N. B ibid.
• (d) 1.711

  F. N B. 125. f. In admeas. of pa∣sture.
• (e) 1.712

  F. N. B. 69. ••n.
• (f) 1.713

  F. N. B. 70. a.
• (g) 1.714

  F. N. B. 69 m. & 70 a in a re∣pleu. & 125. f. in Admeas of pasture. Old N. B. 2. in a writ of right.
• (h) 1.715

  F. N B. 77. ••.
• * 1.716

  3. H. 6 30.
• (a) 1.717

  F. N. B. ibid.
• (b) 1.718

  F. N. B. 70. b.
• (c) 1.719

  F. N. B. 18. a. b
• * 1.720

  F. N. Br. 70. b. & 18. d.
• (e) 1.721

  F. N. B. 18. d.
• * 1.722

  F. Nat. Br. 4 a.
• * 1.723

  F. N. B. 22. g.
• * 1.724

  F. N. B. 3. c.
• * 1.725

  F N. B. 17. ••.
• * 1.726

  F. N. B. 24.
• * 1.727

  Old N. B. 32.
• * 1.728

  F. N B. 249 g.
• * 1.729

  4. E. 6. Pl. 67.
• (a) 1.730

  6. H, v. 1. c.
• * 1.731

  (b) West 1. ca. 15. Stamf. 71. & 72 In case of the death of a man.
• (c) 1.732

  Stamf. ibid.
• (d) 1.733

  Div. of courts fol.
• * 1.734

  F. N. B. 71. c. Fit. ibid.
• * 1.735

  Fit. ib. 72 g. Fi. ib. 72. c & 71. ••
• * 1.736

  Fit. ib. 71. b. Fit. ib. 71. i.
• * 1.737

  Fit. ib. 71. e. Fit. ib. 71. f.
• * 1.738

  Fit. ib▪ 72. d.
• * 1.739

  Fit. ib. 73. e.
• * 1.740

  Fit. N. B. 4. ••.
• * 1.741

  7. E. 6. Pl. 85.
• * 1.742

  F. N. Br. 181. ••
• * 1.743

  Fit. ibid. d.
• * 1.744

  F. N. B. 77. c. 2. El. Dy. 173.
• (a) 1.745

  1. E. 4. 9.
• * 1.746

  2. El ib.
• (b) 1.747

  2. El. ib.
• * 1.748

  F. N B. 163. d. Old N. B. 30. Old N. B. 28.
• (a) 1.749

  Old N. B 30.
• (b) 1.750

  22. E. 4▪ cons. 2
• * 1.751

  19. H. 6 Old N. B. 31. F. N B. Ph.
• * 1.752

  12. E. 4. 13.
• * 1.753

  Fit. N. B. 36.
• * 1.754

  38. H. 6. 20.
• * 1.755

  F. N. B. 239. d. F. N. Br. 13. g.
• * 1.756

  F. N. B. 4〈…〉〈…〉
• * 1.757

  13. E. 3 vouch 269 c. E. 1. droit 45.
• * 1.758

  c. E. 1. ibid.
• * 1.759

  c. E. 1. ibid.
• * 1.760

  13. E. 3. ibid.
• * 1.761

  F. N. B. 77. f.
• * 1.762

  Old N. B. 46.
• * 1.763

  F. N. B. 267. e.
• * 1.764

  F. N. B. 28. g.
• * 1.765

  39. H. 6. 38.
• * 1.766

  Old N. B. 21. 39. H. 6. ibid.
• * 1.767

  21. H. 6. 20.
• * 1.768

  Fitz N. B. 29. b. 39 H. 6. ibid.
• * 1.769

  39. H. 6. 38.
• * 1.770

  F. N. B. 28. ••.
• * 1.771

  F. N. B. 28. g. 39. H. 6. 39.
• * 1.772

  F. N. B. 28. b.
• * 1.773

  F. N. B. 17.
• * 1.774

  19. H. 6. 57.
• * 1.775

  F. N. B. 37. f.
• * 1.776

  F. N. B. ibid.
• (b) 1.777

  F. N B. 48 l.
• (c) 1.778

  Fit. ibid.
• (d) 1.779

  F. N. B. 48. b.
• * 1.780

  F N B, 48. c.
• * 1.781

  F. N B. 48. b.
• * 1.782

  F. N. B. 48 q.
• * 1.783

  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.
• (c) 1.784

  F. N. B. 6. 3. Eli Dy. 301.
• (d) 1.785

  F. N B. 6.
• (e) 1.786

  26. H. 8. 8. F. N. B. 31. d.
• * 1.787

  5. E. 3. 50.
• * 1.788

  34. H. 6. 2. 4. H. 7. 3.
• * 1.789

  24 H. 8. Br. fau. reco. 41.
• (a) 1.790

  26. H. 8. 2.
• * 1.791

  Lit. 9.
• * 1.792

  Park. 88.
• (a) 1.793

  18. E. 4. 13.
• (b) 1.794

  7. El. Dy. 232. 18. E, 3. 5.
• (c) 1.795

  41. E. 3. tres. 199
• (d) 1.796

  40. E. 3. 42.
• (e) 1.797

  1. Mar. Pl. 99. 3. H. 7. 12. 4. E. 6. Br Cor. 185
• (f) 1.798

  21. H. 7. 31.
• (g) 1.799

  3 H. 7. 12.
• * 1.800

  (h) 12. E. 3. Cor. 378.
• (i) 1.801

  3. Mar. Dy. 120
• * 1.802

  Stam. 133.
• (k) 1.803

  Stam. 138. d.
• (l) 1.804

  Stam. 124.
• (m) 1.805

  Stam. 130. ••.
• * 1.806

  Stam. 123. d. 9. E. 4. 28.
• * 1.807

  9. E 4. 28.
• * 1.808

  Stam. 138. 6.
• * 1.809

  Stam. 138.
• * 1.810

  Stam. 139. b.
• * 1.811

  Stam. 108.
• * 1.812

  5. E. 6. Br fors. 113
• * 1.813

  Stam. 138.
• * 1.814

  Stam. 138. ••.
• (a) 1.815

  Stam. 122. c.
• (b) 1.816

  4. Eli. Pl. 262.
• (c) 1.817

  3. E. 3. Cor. 33••
• * 1.818

  2. H. 4. 24. 8. R 2. auowry 194
• * 1.819

  Stam. 167. c. Stam. ibid.
• * 1.820

  14. H. 7. 15. 19. 15. H 7. 5.
• * 1.821

  38. E. 3. Scire fac. 77 14. H. 7. & 15. H. 7. ibid.
• * 1.822

  F. N. B. 167.
• * 1.823

  F. N. B. 38. b. & f.
• * 1.824

  27. El Coo. 11. Sir Wil. Harbertie
• * 1.825

  4. H. 6. 17. 22. off. Pl. 72.
• (a) 1.826

  Old N. B. 165. 42. E. 3. 11. 2. H. 4. 14.
• (b) 1.827

  Old N. B. ibid. 2. H. 4. ibid.
• (c) 1.828

  24. Eliz.
• (d) 1.829

  24. Eli. ibid.
• * 1.830

  15. El. Pl. 441. Old N. B. 165.
• * 1.831

  Old N B. 167.
• * 1.832

  17. El. Coo. 12. Sir Wil. Harbertie 2. H. 4. 6.
• * 1.833

  40. E. 3. 25. 49. E. 3 2. 49. E. 3 ibid.
• * 1.834

  1. H. 7. 20.
• * 1.835

  Old. N B. 168.
• * 1.836

  Old N. B. 163. 27. Eli Coo. 12. in Sir Will. Harb. ••.
• * 1.837

  Lit. 116.
• * 1.838

  8. E. 4. 15. 1. El. Dy. 16••. 19. H. 8. 6. 22. H. 6. 41. 2. H. 7. 3. 24. H 8. Br. per∣emptorie 63.
• (b) 1.839

  1. Eliz. ibid.
• (c) 1.840

  1. El. ibid.
• * 1.841

  (a) 1. Eliz ibid.
• (d) 1.842

  1 Eli ibid. 2. El. Dy. 172 8. E. 4▪ ibid.
• (e) 1.843

  26. H. 8. •• Dy. 198.
• (f) 1.844

  The Stat. West. 2 cap. 46. doth so recite it.
• (a) 1.845

  22 ass. Pl. 71.
• (b) 1.846

  22. ass. Pl. ibid.
• (c) 1.847

  23 ass. Pl. 2.
• (a) 1.848

  22. ass. ibid.
• * 1.849

  16. H, 7. 6.
• (a) 1.850

  7. H. 6. 28.
• (b) 1.851

  F. N. B. 21. ••. 12. E. 4. 11. 5. H. 7. 25.
• (a) 1.852

  F. N. B. 21. i.
• (b) 1.853

  13. El Pl. 393
• (c) 1.854

  14. H. 7. 1. 8. Eli. Dy. 250. 21. El. So holden in the Common place, contrarie to Fitz. N. B. 21. i.
• * 1.855

  1. H. 7. 19. 23. El. Dy. 375.
• * 1.856

  F. N. B. 17. & 18.
• * 1.857

  18. E. 4. 9.
• * 1.858

  9 ass. Pl. 21.
• * 1.859

  Br. attaint. 42.
• * 1.860

  3••. H. 6. 1. 3. H. 6. 29.
• (a) 1.861

  25. H. 8. Dy. 5 26. ass. Pl. 12.
• (b) 1.862

  13. E. 4. 5.
• (c) 1.863

  34 ass. Pl. 6. 26. ass. Pl. 2.
• * 1.864

  Br. attaint. 42.
• * 1.865

  Old N. B. 111.
• * 1.866

  Old. N B. 112.
• * 1.867

  22. H. 6. 8.
• * 1.868

  35. H. 6. 30.
• * 1.869

  19. ass. Pl. 15:
• * 1.870

  34. H. 8. Dy. 53.
• * 1.871

  22. H. 8. 56.
• * 1.872

  48. E. 3. 20.
• * 1.873

  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) 1.874

  11. R. 2. Super∣sed. 14.
• (b) 1.875

  2▪ H. 7. 12. 21. H. 6. 34.
• (c) 1.876

  43 E. 3 ••8. F. N. B. 104. q. cont.
• (d) 1.877

  F. N B. 204. q.
• * 1.878

  22 H. 6. 56. 15. E. 4. 5.
• (a) 1.879

  F. N. B. 6. b. 185 d. 134. a. Old N B. 15. 35.
• * 1.880

  F. N. B. 26 3. c.
• * 1.881

  F. N B. 263. d.
• * 1.882

  F. N Br. 263. c.
• * 1.883

  F. N. B. 264. a.
• * 1.884

  45. E. 3. 23.
• * 1.885

  F. N B. 83 c.
• * 1.886

  F. N. B. 82. a. c.
• (a) 1.887

  F. N. B. 230. a
• (b) 1.888

  F. N. B. 231. g.
• (c) 1.889

  F. N. B. 230 a
• (d) 1.890

  F. N. B. 230. a & 231. g.
• (e) 1.891

  F. N B. 230. a.
• (f) 1.892

  Fit ibid. F. N. B. 229. b.
• * 1.893

  Old N. B. 15.
• * 1.894

  F. N. B. 169.
• * 1.895

  F. N. B. 79.
• * 1.896

  Old N. B. 33.
• (a) 1.897

  F. N. B. 54.
• * 1.898

  F. N. B. 185. d.
• * 1.899

  F. N. B. 234.
• * 1.900

  Old N. B. 34 & 35
• * 1.901

  Old N. B. 35. a. F. N. B. 63. ••. f.
• * 1.902

  F. N▪ B. 63. c.
• (a) 1.903

  F. N. B. ibid
• (b) 1.904

  F. N. B. 63 d.
• * 1.905

  F. N. B. 269.
• * 1.906

  F N. B. 163. n.
• * 1.907

  F. N. B. ibid.
• * 1.908

  F. N. B. 163 k.
• * 1.909

  F. N. B. 164. ••.
• * 1.910

  F. N B. 170. ••b.
• * 1.911

  F. N. B. 146. g. Old N. B. 103.
• * 1.912

  F. N. B. ibid. 1. H 7. 9. Old N. Br. ibid.
• * 1.913

  1. H. 7. 9.
• * 1.914

  F. N. B. 25. ••.
• * 1.915

  Old. N B. 29. a. & b.
• * 1.916

  F. N. B. 176. a.
• * 1.917

  Old N. B. 175 b.
• * 1.918

  F. N. B. 55. e. 14 H. 8. 6. Shelly.
• * 1.919

  Tbe forme of the writ. F. N. B. 8. c. 14. H. 8. ibid.
• * 1.920

  Old N. B. 159.
• * 1.921

  F. N. B. 158.
• * 1.922

  F. N. Br. 2••5. k.
• * 1.923

  F. N. B. 226. i.
• * 1.924

  F. N. B. 165. a. d.
• * 1.925

  F. N. B. 165. ••.
• * 1.926

  F. N. B. 85. ••.