Law, or a Discourse therof in four books. Written in French by Sir Hen. Finch Kt. His Majesties Serjeant at Law. And done into English by the same author

THE FOURTH BOOK OF LAW. (Book 4)

CHAP. I. Of Courts.

THus we have gone through both the parts of the Law, there remaineth yet one general and common affection scattered throughout the whole Law (as the blood is through the body) which we call an Action

Action is the handling of a cause in controversie before certain Iudges, who (in respect of the place where they are set to do Iustice) are commonly called a Court.

Statutes.

36. Ed. 3. cap. 15. All Pleas which be pleaded in any of the King's Courts, be∣fore any of his Justices, or in his other places, or before any of his other Mini∣sters, or in the Courts and places of any other Lords within the Realm, shall be pleaded, shewed and defended, answered, debated and judged in the English Tongue, and that they be entred and in∣rolled in Latin.

Of all apparent faults proceeding from the Action, As in false Latin(a) 1.1 or de∣fault of form in the Writ, ins••fficiency in an office or Inditement, mis-awarding of Proc••ss, (as if of an exigent where no exi∣gent lieth) impossibility in the Plea,* 1.2 as in account, supposing him to be his Receiver for seven years, and the Defendant pleads, fully accounted such a day, which is the first of rhose seven years; The Court must take notice. To abate the Writ, award a Supers••deas upon these offices, Inditements, or Process, to stay Judgment if the Defendants Plea be found against him,* 1.3 &c. though the party except not to it. And therefore although he that cast∣eth an Essoyne cannot plead in abatement in the Writ, by way of Plea; yet if it be a matter apparent to the Court (as Henri∣cus, &c. Dux Hiberniae, where it should

be Dominus) he and every other stranger, as amicus curiae, may. And the Court is bound to abate it ex ••fficio, though the Tenant or Defendant make default.

Every Court hath power to award forth Precepts.* 1.4 And if the Precept be not served, another of the like nature shall go forth till it be served. Therefore the second Prccess is called a Summons (or Attachment, as the first Process was) sicut alias, the third a Pluries, the fourth, and all the rest, Plus pluries.

To every Court do belong both Clerks and Offices.

A Clerk is he that serveth for things to be done in Court, as entering the Pleas, and such like.

Any error that appeareth to the Court to be the Clerks (misprision) mistaking, may be amended at any time.* 1.5 As a good original Writ or Precept ill entred in the Roll.* 1.6 A Writ against A. and B. and the whole Process continued against B. and C. not A. and B. a Scire facias out of a fine and parcel of the Land omitted.* 1.7

Statutes.

14 E. 3. cap. 6. No Process shall be an∣nulled or discontinued by the Clerks mi∣staking in writing one syllable or one let∣ter too little, or too much; but shall speedily be amended, without any ad∣vantage to the other.

9 H. 5. cap. 4. made perpetual.

4 H. 6. cap. 3. The Justices before such pleas or Records be made, or shall be de∣pending by adjournment, errors, or other wise, may make such amendment as well after judgement as before.

4 H 6. cap. 3. The former Statutes shall not extend to Records and Process, whereby any person shall be out-lawed.

8 H. 6. cap. 12. No Judgement or Record shall be reversed or annulled for error, as∣signed in rasing or interlining, adding, substracting, or diminishing of words, letters, titles, or parcel of Letters in any Record, Process, or warrant of Atturny, original Writ, or judicial Panel, or Re∣turn, though to the Judges of the Courts wherein the said Records and Process be certified (by Writ of Error, or otherwise) the same appear suspected. But the King Judges of the Courts where the said Re∣cords and P••ocess be certified by Writ of Error, or otherwise, shall examine the same by themselves and their Clerks, and amend therein (in ••ffirmance of the first Judgement) all that seemeth to them to be the Clerks misprision: Except Appeals, Indictments of Treason, and of Felonies, and the Out-lawries of the same. And the substance of the proper names, sir∣names,

and additions, left out in original Writs of Exigend, and other Writs con∣taining Proclamation. And if any Re∣cord, Process, Writ, Warrant of Attur∣ney, Return, or Panel, to be certified de∣fective, otherwise than according to the writing which thereof remaineth in the Treasury, Courts, or places from whence they be certified; the parties in affir∣mance of the Judgements of such Records or Process, shall have advantage to al∣ledge variance betwixt the same Writing and the certificate: which being found and certified, the same variance shall be by the said Judges amended, according to the first writing.

27 Eliz cap. 7. After Demurrers joy∣ned and entred, the same Court may a∣mend all imperfections, defects, & wants of form, other than t••ose only which the party demurring shall particularly ex∣press with his demurrer.

Officers are those which are to serve the Courts Precepts, and where the pre∣cept so requireth, to certifie the Court thereof, which we call a return,

So upon a writ to inquire of damages, it is a good return that the inquest gave no damages.* 1.8 For he returneth what they did.

But upon a capias returned cepi corpus,* 1.9 he shall be amerced, if he have it not there: as

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

Statutes.

Westmin 2. Cap. 39. Damages given against the Sheriff if he return not at all, or return a tardy, upon Writs delivered or offered to be delivered him by Billet. So upon returning Manda••i Ballivo liber∣tatis falsely: upon resistance of any Great man to execute the King's Precept, the Sheriff shall take the Posse Comitatus, and see it served.

Stat. Eborac. 12. E. 2. Ca. 5. Bayliffs of Franchises must deliver their returns of the Writs to the Sheriff by Indenture, and if he change the Return, the Lord of the Liberty, and the party, shall reco∣ver double damages.

The Sheriff, &c. must set his proper name to all Returns.

27 Eliz. c. 12. Every Under Sheriff, B••iliff of Franchise, Deputy or Clerk of the Sheriff, &c. must take an Oath for the Supremacy, and for the true, speedy, and indifferent returning of Writs, and impanelling of Jurors, without taking above the Fees allowed.

29 Eliz. cap 4. Sheriffs may take for the serving of ••ny Extent or Execution

only 12 d. of, and for every 20 s. where the summ exceedeth not C. l. and 6 d. of and for every 20 s. being above an C. l. that they shall levy, or extend and deliver in execution, or take the body in execu∣tion for.

Courts are Courts of Record or Court Barons.* 1.10 For against a recovery p••eaded in antient Demesn, or other Court Baron, one shall not say, nul tiel Recorde, f••r it is no Record, but nul tiel Recoverie, and it shall be tried by the Countrey. O••her∣wise it is in the King's Courts.

Of Records, which are the King's Courts, as he is King. Otherwise,* 1.11 if the King have a Court as Lord of a Mannor, that is but a Court Baron. And these have that credit, that no averment can be taken against any thing there entred or done. And therefore work an Estoppel to the parties in like sort,* 1.12 as Indentures did be∣fore. As upon a Lease made by fine,* 1.13 both parties are estopped to say the Les∣sor had nothing in the Land.

So of Pleas in Bar, Replications, Re∣turns of the Sheriff, &c.

Statutes.

1 E. 3. Cap. 4. Statut. 1. Averment given in a Writ of false Judgement against the Record certified.

Things also that cannot be granted but by Deed, pass here, and that more strongly, by matter of Record

* 1.14The King taketh Hereditaments, though it be but for years. O••herwise it is of an O••ligation of Chattel personal, by matter of Record only: for to personal and transitory things, as Catalla felonum & fugitivo••um, wreck of Sea, treasure trove, and the profits of Land of per∣sons out-lawed in a personal Action &c. the King is intituled without office or other matter of Record; but to t••ke a Free-hold by a Condition broken,* 1.15 or purchase of his Villein, or such like, he cannot without office or matter of Re∣cord. Otherwise it is, where the Law casts a Free-hold upon him, as in a gift ••n Tai••,* 1.16 the remainder to the King.

And therefore also the King taketh a Free-hold without livery or seisin by deed inrolled: but cannot be infeoffed by Deed, without inrollment of Rec••rd, for that no Livery can be made unto him.

* 1.17Villenage beginneth only by confessing a mans self to be one in a Court of Re∣cord.* 1.18 And therefore in a P••aec pe quod r••d∣dat, if the Tenant say, Tha•• he is a Villein to I. S. a••d holds the Land in Villenage, the demandant saith that is frank, &c. and he is found frank by the Jury: yet he remaineth a Villein to I. S.

Duties of the Testator growing by re∣cord must be answered by Executors be∣fore other duties.* 1.19

Courts of Record are the Parliament,* 1.20 or Courts that have ordinary Iurisdicti∣on. For the Parliament, when it is sitting, may take a Recognisance, and do such o∣ther things as to a Court of Record ap∣pertaineth.

The Parliament is a Court of the King, Nobility, and Commons assembled Having an absolute power in all causes. As to make Laws,* 1.21 to adjudge matters in Law, to try causes of life and death, to reverse errors in the Kings Bench, especi∣ally where any common mischief is, that by the ordinary course of Law there is no means to remedy: this is the proper Court for it. And all their Decrees are as Judgments. And if the Parliament it self do erre (as it may) it can no where be reversed but in Parliament.

Statutes.

4. E. 3. cap. 14. & 36. E. 3. cap. 10. A Parliam••nt shall be h••lden once every year.

1. H. 4. cap. 14. No appeal shall be pursued in Parliament.

Prerogative.

Statutes of restraint bind not, unless they concern the Common-wealth, or he be specially named: As the Statute of Westmin. 2. which altereth Fee-simple Con∣ditional into an estate Tail, that Tenant in Tail shall have no power to alien, doth bind him: for it is for the Common-wealth. So as Lands being given to the King in Tail, the Remainder over, if the King have issue who alieneth, and dieth without issue, he in the Remainder may enter. But if by Statute one be attainted, and his Lands forfeit, with a proviso that of such Lands as he was seised to the use of any other cesty qui use may enter; that bindeth not the King that cesty qui use should enter upon him, for it is not for the Common-wealth. But the Statute of 1 H. 5. cap. 5. that in Endictments, additi∣on must be given to the party indicted, bindeth the King in that case, because En∣dictments are especially named.

He may license things forbidden by the Statutes. As to coin money which is made Felony by the Statute, and was before lawful, for that is but malum prohibitum. But malum in s••, as to levy a Nusance in the High-way, he cannot license to do: but when it is done he may pardon it. But where the Statute saith his Licence shall be void, there it must have 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. c••p 18. is, That the Kings Grant to be Sheriff of any County, longer than a year, shall be void, notwith∣standing that the clause of Non obscante be 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 he can dispense with a Statute be∣fore it be made. And therefore a Licence to carry Bell-metal out of the Realm (notwithstanding any Statute made or to be made) is not good, if a Statue be made after that to prohibit it. For he cannot dispense with an Act of Parlia∣ment before it be made.

Courts of Record which have an or∣dinary Iurisdiction, are either general, whose Iurisdiction extends throughout the Realm, or but within some County: Wherefore these latter, for their order and course of proceeding, do in all things fashion themselves to the example of those higer Cou••ts,* 1.22 as of the Patents from whom they come.

The former are those that are holden in Term time only; the whole year ha∣ving four Terms, Michaelmas, and Hilary Term, Easter and Trinity Term, and every Term several daies of Returns. If either the Return day, or first or last day of Term fall upon the

Lords day, then the day following is ta∣ken instead of it.

Michaelmass Term (beginning the 23 of October, and ending the 28. of Nov.) hath 8 returns, Octabis Michaelis, that is the 8 day after the feast of Saint Michael. 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. Crastino animarum, that is the nex day after Crastino Martini, Octab. Martin Quindena Martin.

Hillary Term beginning the 23 day of Ianuary, and ending the 12 of February hath four returns, Octabis Hillarii, Quin∣dena Hillarii, Crastino purificationis, Octa∣bis purif.

Easter Term beginning 17 days after Easter, and ending the Monday next after Ascension-day, hath five returns, Quinde∣na paschae, Tres paschae, Mense paschae, Quin{que} paschae, that is five weeeks after Crastino Ascensionis.

Trinity Term beginneth 12 days after Whitsunday, and continuing 19 days, hath five returns, Octab. Trinita••. Quinde∣na Trinitat. Crastino Johannis Baptistae, Octab. Johannis Baptistae, quindena Jo∣hannis Baptistae.

Statutes.

32. H. 8. cap. 21. Trinity Term shall begin the monday after Trinity Sunday, for keeping of Essoyns, profers, returns.

The full Term shall begin the Friday af∣ter Corpus Christi day, and have four re∣turns onely, Crastino Trinitatis, Octabis Trini at', quindena Trinitatis, Tres Tri∣••itatis. 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 Seal.

All writs have a salutation, Rex to such a one salutem, And a conclusion expres∣sing the name of one which is witness to the Writ, called teste (who in wtits out of the Chancery is the King himself: in o∣ther writs the chief Justice of the place) the place, as apud Westmonasterium, &c. and the time, both day and year of the making of it, if it be returnable, the day of the re∣turn is also appointed in it.

The third writ (which is the Pluries) not served, is a contempt,* 1.23 whereupon an At∣tachment lieth. And therefore the third writ hath always this clause in it, Vel cau∣sam nobis significes. So may the second which is the Alias also have, if the Plantiff will.

The Officer of these higher Courts is the Sheriff to whom is committed the cu∣stody of the County.

For matters spiritual, as certyfying excommengement, and such like, the ordi∣nary is their Officer.

And to the Sheriff the Writ must be di∣rected, though it be for a thing done in a franchise, and he shall send to a Bailiff of the franchise: who shall serve it as a servant to the Sheriff, and the Sheriff return it.

* 1.24And though the Sheriff serve an execu∣tion in a Franchise, yet it is good. And the Lord of the Franchise is driven to his action upon the case against the Sheriff, for the Sheriff is immediate Of∣ficer.

* 1.25But in a place excepted out of every County (as the Palace of Westminster is) it shall be directed to the Guardian of the Palace, for he is immediate Officer to the Court, and is in the nature of a Sheriff.

* 1.26So Certificates of excommengement, and such like must be made by the Ordina∣ry, not by the Commissary, Arch-deacon, or any other, though he have an immedi∣ate Jurisdiction, unless he were special∣ly admitted an Officer to the Court.

These general Courts are the Chan∣cery and two Benches: the King's Bench, and Common place.

Chancery, which beside that it dealeth with matters of Conscience, and modera¦ting the strictness of the Common Law by an absolute power, dealeth also in ordina∣ry course of Law in divers cases especi∣ally, in suits concerning the King, as Peti∣tions. Scire facias, to repeal his Patents,

&c. and so it is a Court of Law and of Record, where the Iudge is the Chan∣cellor, having the custody of the Great Seal of England, under which pass all Writs out of the Chancery with Teste me ipso, and also the Kings Grants,* 1.27 being therefore called Letters Patents, Though it be of things which he hath in his natural capacity, as by descent from his mother,* 1.28 &c. and are entred of Record in this Court.

Statutes.

18 H. 6. cap. 1. The King's Letters Pa∣rents must bear date the day of the de∣livery of the Warrant to the Chancellor, and not before, otherwise they are void.

3 E. 6. cap. 4. Every one that hath any interest in any Land or office by, or un∣der Authority of the King's Letters Pa∣tents (made after the fourth day of Fe∣bruary, 27 H. 8.) may make his title, avowry Plea, &c. as well against the King as any other by an Exemplification (or constat) under the Great Seal.

13 Eliz. cap. 6. So of the Patentees of King Henry, 8 E. 6. Queen Mary, Philip and Mary, and her Majesty that now is, all claiming under them.

Such Grants are effectual to pass a freehold from the King without any live∣ry* 1.29

of Seisin. And therefore his letters pa∣tents being Tenant in Tail make no dis∣continuance. And being matte••s of record which being no livery, they take effect from the time of the date. Therefore the Kings Charter of pardon shall be pleaded without shewing when is was delivered,* 1.30 because being a matter of Record, it shall have relation to the date, and not to the livery. Ot••erwise it is of a deed.

In default of a Chancellor, the Lord-keeper of the great Seal hath his au∣thority.* 1.31

The Keeper (or Master) of the Rolls is an assistant to this court.

In the Kings Bench and Common place, the Iudges art one chief Iustice, and three (or sometimes more) other Iu∣stices. The teste of their writ is, teste Jo∣hanne P••p••am (the chief Justice &c.)

The Kings Bench is that which dea∣leth properly with Pleas of the Crown,* 1.32 both hearing and determining them.

The Common place which dealeth pro∣perly with common Pleas,* 1.33 such are those termed which concern possessions.

Prerogative.

The King hath a proper Court of this kind,* 1.34 for all things touching his reve∣nues, called the Exchequer.

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

being one chief Baron, & three other. And this also hath a court of chancery be∣fore the chancellor and barons of the Ex∣chequer, called the Exchequer chamber.

The Escheator here is a special officer,* 1.35 and hath a kind of Court for finding out the Kings title to Lands, Tenements, or other things.

Statutes.

14. E. 3. cap. 8 No Escheator shall tar∣ry in his office above a year.

These are the Courts whose jurisdi∣ction extends through out the Realm.

Those which deal but within some County, are the Sheriff in his turn, and the Coroners.

The Sheriffs turn is a court of record for offences,* 1.36 which are common grievances as robbery,(a) 1.37 bloodshed, cliping, & wash∣ing of silver and gold, night-walking, the not repairing or making clean of a bridge or a ditch,(b) 1.38 fraies, and assaults, &c. But not(c) 1.39 murder, or breaking of ones hedge &c. for they are no common grievances, but a wrong to one singular person.

Whereunto every man of the age of 12 years and upwards (being within the pre∣cinct) oweth suit,* 1.40 and must be sworn to the Kings Allegiance. And this is called a suit real, being not due by reason of m••ns Freeholds, but of their body, because they are resiant within the precinct of the Leet. But Women are not compellable to

come thither, nor to be sworn to the King. And therefore when a woman is outlaw∣ed,* 1.41 she is said to be waved and not out∣lawed, because she is never sworn to the Law.

Peers of the Realm are excepted, and Parsons of Churches,* 1.42 and other men of Religion, as appeareth before.

* 1.43The offendor here shall be amerced, and distrained for that amercement, through∣out the whole precinct of the County.

Statutes.

Magn. Chart. 35. The Sheriff shall make his turn throughout the Hundred but twice a year; that is to say, once after Easter, and again after Michaelmas. And the view of Frankpledge shall be made at the turn of Michaelmas.

13 E. 3. c. 14. Stat. 1. The turn must be yearly, once within a month after Easter, and another time within a month after Michaelmas: if they hold them in ano∣ther manner, they shall lose their turn for the time.

1 E. 3. c. 17. Endictments in Sheriffs turns must be by Rolls indented; one part to remain with the Endentors, the other with the Sheriff.

1 E. 4. c. 2. Upon Endictments and Pre∣sentments taken before Sheriffs, or their Ministers at their turns or Law-days, they shall not attach, arrest, or imprison, nor levy any fine or amerciament of any person so indicted (or presented) but shall

deliver the same Endictments or Present∣ments to the Justices of Peace of the same County at their next Sessions, who shall proceed thereupon as if they were taken before them.

1 R. 3. c. 4. None shall be returned upon pannel of enquiry of the Sheriffs turn, but men of good name and fame having with∣in the same Freehold land to the yearly value of 20 s. or Copy-land to the yearly value of 26 s. 8 d. and every Endictment otherwise taken shall be void.

The Coroners Court is a Court for matters of the Crown. Battery, Maime,* 1.44 Rape, Murder, &c.

Statutes.

Westm. 1. c. 10. Coroners shall be chosen in all Counties, of the wisest and suffici∣entest Knights.

14 E. 3. c. 7. That no Coroner shall be chosen, unless he have land in fee suffici∣ent in the same County, whereof he may answer to all manner of people.

28 E. 3. c. 6 All Coroners of the Coun∣ty shall be chosen in the full Counties, by the Commons of the same Counties, of the most convenient and most lawful people that shall be found in the same Countie to do the office. Saved always to the King, and other Lords which owe to make such Coroners, their Seigniories and Fran∣chises.

Westm. 1. c. 10. The Sheriffs shall have

Counterrols with the Coroners, as well of their Appeals, as of Inquest of Attach∣ments, and of other things which to that office doth belong.

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

* 1.45Vpon just cause of exception to the Sheriff process out of the higher Courts shall be directed to the Coroners.

Prerogative.

* 1.46The Steward and Marshal of the Kings house, have a Court, for all perso∣nal actions, and pleas of the Crown ari∣sing there. As debt, covenant, trespass, &c. and by the common Law they might hold plea of Freehold it self, as it seemeth by the Statute of Artic. super Chartas cap. 3. which saith,* 1.47 from henceforth they shall not hold plea of Freehold. Also they may inquire of treason, murder, felony, man∣slaughter, bloodshed, &c. and take appeals of all kinds of Felony and Maim.

Statutes.

Artic. super chart cap. 3. They shall not hold plea of any contracts and covenants, but such as one of the Kings house maketh with another of the same house. Nor of any trespass; unless the party were attached and the plea determined before the kings departure from the place where the tres∣pass was committed.

Any thing attempted here against, is void.

Pleas of Felony (that cannot be determin∣ed before the Steward, because the Felons cannot be attached, or for other like cause) shall be referred to the Common Law.

5 E. 3. c. 2. and 10 E. 3. c. 2: Inquests shall be taken there by men of the County a∣bout, and by no men of the King's house, except it be in Covenants, Contracts, and Trespasses, when either party is of the King's house.

5 H. 6. c. 1. The Defendants may averr that themselve•• or the Plaintiff (at the time of the Suit commenced) were not of the King's house against the Record.

13 R. 2. c. 3. The jurisdiction shall not pass above 12 miles about the K. house.

33 H. 8. c. 12. The Lord Steward of the King's house alone, and (in his absence) the Treasurer & Comptroller of the K. house, with the Steward of the Marshalsy, or 2 of them (whereof the Steward of the Mar∣shalsy to be one) may without Commission hear and determine all Treasons, Mispri∣sions of Treasons, Murders, Manslaugh∣ters and Bloodshed within the K. house, although the King be removed before. The enquiring and verdict must be by the K. houshold servants in the Check Roll.

No Clergy nor Sanctuary to any that is found guilty before them.

By reason also of certain Franchises, grow two other Courts of Records,

which deal within some certain precinct; a Leet and Court of Pypowders.

* 1.48A Leet is a Court of Record, having the same Iurisdiction within an Hundred only, or some less Precinct, which the Sheriffs turn hath in the County,* 1.49 the profit of it being to a common person. Therefore it(a) 1.50 dealeth with offences that are common grievances. And(b) 1.51 all (but Peers of the Realm) owe suit unto it, and must be sworn to the King's Allegiance. And the(c) 1.52 offendor for an Amerciament shall be distrained throughout the Preci••ct of the Leet; and that as well out of the Land holden of the Lord of the Leet (where the offence was done) as within it. The Sheriffs turn, as an overseer of this Court, is to(d) 1.53 enquire whether the Ty∣things be whole or no: to(e) 1.54 present de∣faults that are not redressed in the Leet: And if (for misuser or other cause) the Leet be seized into the King's hands, all the peo∣ple shall come to the Sheriffs turn. But(f) 1.55 otherwise the Sheriff in his turn, hath no power to enquire of an offence done with∣in the Leet.

A Court of Pypowders is a Court of Record(g) 1.56 incident(h) 1.57 to fairs and Markets: but by(i) 1.58 custome, a Court of Pypowders may be held out of Fair or Market; for all Actions arising there, by reason of any Contract, Covenant, Tres∣pass, Debt, &c.(k) 1.59 And the suit must at the same time be commenced.

Statutes.

17 E. 4. c. 2. made perpetual, 1 R. 3. c. 6. No Plea shall be holden in Court of Py∣powders, unless the Plaintiff or his Attor∣ney swear that the matter of Declaration was done in time of the same Fair, and within Jurisdiction thereof; but that Oath shall be no conclusion to the Defendant, but that he may plead as he might before. Every Steward, &c. holding Plea contrary forfeiteth C s.

The King (by Commission under his Letters Patents) but not by writ,* 1.60 may e∣rect other Courts at his pleasure.

Such were Iustices of Eyre, and such Courts of Record in Corporations, and other places, by special Charters.

The King's Councel also is a Court, to deal with the punishment of Contempts, and called the Star-Chamber. But this is no Court of Law.

Statutes.

3 H. 7. c. 3. The Chancellor, Treasurer, and Privy Seal, or two of them (calling unto them a Lord Temporal, and another Spiritual of the King's Councel, and the two chief Judges) may examine Riots, Maintenances, &c.

These are the Courts of Record.* 1.61 A Court Baron is the Court of a common person, and is for personal accounts under the value of 40 s. For a Trespass lieth not in a

Court Baron of dammages above 40 s And a Supersedeas lieth to the Sheriff, upon di∣vers plaints in the County Court, every one under 40 s. when all are for one en∣tire debt of 40 s. Or upon an Action of Covenant brought there to the dammage of above 40 s.

* 1.62These cannot be kept oftner than every three weeks. But so it be not oftner than from three weeks to three weeks, it may be holden as often as the Lord will.* 1.63 And therefore to hold off one by doing Suit at his Court of D at Mich. and at Easter, it is to be intended at his Court Baron; for though a Court Baron be commonly hol∣den from three weeks to three weeks; yet Suit of Court may be once, twice, or thrice a year, as it is first reserved.

The Process here is by Precept to the Bailiff,* 1.64 good enough, though it be but by word: inasmuch as the trial in a Court Baron is all by the Country, and not by Record; for is but matter enfait.

The sutors are the Iudges both in an hundred Court,* 1.65 County Court, or Court Baron; and the Bailiff and Sheriff are but Ministers.

* 1.66A Court Baron is the Lords, or the County Court. The Lords is either of a particular Mannor or of a whole hundred. For a Court Baron is incident to every(a) 1.67 Mannor a••d to every(b) 1.68 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 County Court,* 1.69 which is incident to the Sheriff. For the Sheriff hath two Courts by the Common Law for govern∣ment of the Shire, his County Court (wherein one shall have remedy against another for any matter between them) and the Sheriffs Turn.* 1.70 But the Pleas holden be∣fore him in the County Court are not of Record, though it be by Writ of Justices.

CHAP. II. Of Writs Original.

OF an Action, there be two parts,* 1.71 Suit and Iudgment.

Suit is the parties dealing in the A∣ction: And therefore all that while it is said to depend in Plea, but not after Judg∣ment. The party that bringeth the Action, is called Plaintiff in a personal Action, Demandant in a real; he against whom it is brought, Defendant in the first, Te∣nant in the other, who for their help are allowed counsel learned in the Law.

Statutes.

Westm. 1. cap. 25. No Minister of the King may maintain another in any

Action in the King's Court to have part of the thing, or other profit by Covenant, upon pain of punishment at the Kings will.

Westm. 2. c. 49. None of the King's Offi∣cers shall take or purchase, or bargain for Land, Tenement, or Advowson, whilst the thing is in Plea, upon pain to be pu∣nished at the King's pleasure, as well the Purchaser as the other.

Artic. super chart. c. 11. Neither the King's Officer, nor any other, shall do so upon pain of forfeiting to the King so much of his Lands as amounteth in value to that he purchaseth. Any may sue for the King before the Justices before whom the Plea hangeth.

32 H. 8. c. 9. None shall buy, sell, or get or take, promise, or grant to have any pre∣tensed rights or titles to lands, &c. except the seller, ••r those (by whom he claimeth) were in possessions, or took the profits by space of a year next before, upon pain that the seller, &c. shall forfeit the value of the land, and likewise the buyer knowing the same. Provided he that is in lawful posses∣sion by taking the yearly profits, may buy &c. anothers pretensed right.

Gloucest. c. 8. Attorneys may be made in all Pleas where Appeals lie not.

Mer. c. 10. In suits, at a County, Ty∣thing, Hundred, Wapentake, or Court of the Lord.

Westm. 2. c. 10. A general Attorney may be made in all Counties where Justices do journey.

3 H. 7. c. 1. An appeal of Murder or Death may be pursued by Attorney.

The suit hath two parts, the beginning and proceeding.

The beginning is the proper duty of the Plaintiff; and hath two parts.

The first matter of the suit, and origi∣nal process.

The first matter of the suit must always be brought in that County where the cause of suit groweth.* 1.72 As actions of debt upon an escape may be brought in t••e County where the arrest or escape wa••, but not in any other C••unty. A(a) 1.73 tres∣pass of battery, goods carried away, or writings broken, may be brought in any County, for they are not local.* 1.74 Otherwise it is of trees, or grass-cut down, they must be brought in their proper County, if i•• be by bill, the County is set at the mar∣gent.

Statutes.

6 R. ••. c. 2. Debt, account, and all such actions shall be brought in the County where the contract was made.

The first matter of the suit is for every man by Writ out of the Chancery, or in Courts where Writs lie not by plaint or bill; for the King alone by enquiry

In all of the first kind, the plaintiff must find surety by some that will be pledges to prosecute the suit. And so is the form of

every original, Si (the Plaintiff) fecerit te securum de clamore suo prosequendo; the en∣try is, Plegij de prosequendo Johannes Do••, Rich. Roo. And these may be either to the Officer, or to the Court where the suit is. But a poor man,* 1.75 instead of sureties, shall give his faith to prosecute it: Whereupon the form for him is,* 1.76 Et nisi fecerit & prae∣dict. (the Plaintiff) fecerit te securum de clamore sub prosequendo per fidem suam quia pauper est.

Writs that begin the suit are Original or Commissional.

Original, which appoint the first Pro∣cess, if the Plaintiff find the Pledges re∣turnable in the Kings Bench or Common Place.

This must be(a) 1.77 true Latin; for upon habeas ibi hos(b) 1.78 breve, or uxori(c) 1.79 where it should be uxor, and such like, the Writ shall abate, and beside(d) 1.80 formal, as the general to be put in demand, and in plaint before the special. As land is general to pree, pasture, wood, joncary, marsh, &c. Wood is the general of all trees growing, and therefore shall be put in demand be∣fore Alders and Willows, which are but species of it. The entire shall be demanded before the moiety or part or parts. The more worthy thing shall be demanded be∣fore the less worthy; as a messuage before land: for land that hath building upon it is more worthy than land without build∣ing. A Castle before a Messuage, or a

Mannor (and yet it may be parcel of a Mannor) But the reason is, because a Castle is more worthy, as being a place of force and defence against the enemy in time of war, and against rebels in time of rebelli∣on; a place in time of peace fit for the correction and imprisonment of great Ma∣lefactors, and a magnifical habitation of Noble men. So in a Replevin; if it be of two Chattels, one quick, and the other dead, the living thing shall be first demanded.

Also it must express the name of bap∣tism and sirname; or in lieu thereof, the name of dignity both of the Plaintiff and Defendant; but not the name of his office, which is no dignity. As pr. q. r. Johanni Du∣ci(a) 1.81 Lancast. is good, but not Johanni Re∣ctori(b) 1.82 de D. without expressing his sirname But when an Officer is to sue by reason of his Office, as a(c) 1.83 Prebendary,(d) 1.84 Parson, Executor(e) 1.85, Gardein(f) 1.86 by Knights ser∣vice, &c. there he must express the name of his Office: or when one bringeth an Ap∣peal of murder, as brother and heir, &c.

Where there be many of one name, diver∣sity of the names must be put by addition of eign puisne, &c. else the writ shall abate.

A Corporation may sue by the name that they are corporate, without name of bap∣tism or sirname; as pr. q. r. majori & commu∣nici L. &c. or Decano & Capitalo D. &c.

Statutes.

1 E. 6. c. 7. The acceptance of a new n••me of dignity shall not abate the writ.

The King's servants in his Court, or other by special grace of the Chancellour,* 1.87 may here be admitted to find pledges in the Chancery. And then t••e form is, Qui•• prae••▪ (the Plaintiff) fecit nos secures de cla∣more suo prosequendo pro C. de Com. L. & D. de Com. S. Summoneas, &c.

CHAP. III. Of Common Pleas.

* 1.88WRits original are concerning Common Pleas or Appeals that concern life.

* 1.89These that concern Common Pleas, lie not for or against a feme covert with∣out her husband; but(a) 1.90 an appeal of felony against her doth.

Many shaving or giving jointly cause of action,* 1.91 may sue or be sued together in one, which is called Joinder in Action. As A. is bound to B in one statute Merchant, and after A. and dive••s others are bound to the same B. in another statute, and B. by one deed releaseth to them all, and after sueth executi••n severally: Th••y shall join in an Audita querela, because of this joynt Re∣lease.

So one Decies tantum shall be against all the Jurors that take money to give their verdict, for it is the entire act of all.* 1.92

Several actions of one nature, as debt,* 1.93 and detinue (for these are of one nature, inasmuch as the warrant of Attorney in a writ of detinue, and also the essoin shall be in placito debiti) may be joined in one original with several praecipes or com∣mandments to be executed.

Prerogatives.

Here in place of action against the King petition must be made unto him in the Chancery,(a) 1.94 or in(b) 1.95 Parliament, for(c) 1.96 no action did ever lie against the K. at the Common Law, but the party is driven to his petition, and(d) 1.97 if the Escheator seize goods without cause, or seize the goods of one out-lawed, which outlawry is after reversed, and account for them in the Exchequer; the party must sue by petiti∣on for them. And that (in the case of he∣reditaments) though the King have gran∣ted the same away.* 1.98 For upon an office finding J.S. (who was attainted of felony or treason by matter of record before) to be seized of certain Land, if the King seize and grant it over; yet a stranger that hath right to enter, or bring his action, may do neither against the Patentee▪ but must to the King by petition. Whereupon Process shall go out against the Grantee to maintain his title As the* 1.99 King

grants over his wardship, or any other cer∣tain estate in the land. The Scire facias for him that ••ueth the petition, must be against the patentee, not against the heir, in whose right the King is seized; for he is not to plead with the heir, but with the King, or him that hath his interest.* 1.100 And in a petition to revoke Letters Patents made to two, &c. a Scire facias upon it; the death of one of the patentees abateth not the peti∣tion; for the petition is not sued against the patentees, but against the King; nor they need not to be named in the petition, but in the Scire facias.

* 1.101But whilst personal things seized for the King remain in the Officers hands, the party that hath right may traverse the Records that entitle the King, and so have his goods again, or sue the Officer, or di∣sturb him to take the profits: As where it is found that one out-lawed in a personal account, was seized of certain land; and in this case he shall not be driven to a pe∣tition: otherwi••e it is in case of a free∣hold o•• inheritance.

* 1.102Petition is a supplication declaring the parties right, where mention must be made of all the King's title, else it shall abate. For upon an issue in the petition found against the King, he shall be con∣cluded for ever to claim by any of the points contained in the petition.

CHAP. IV. Of Real Actions.

THese Writs concerning Common Pleas ate real or personal.* 1.103 And they both again are Praecipes, or Si fecerit te securum.

A Praecipe is that which willeth the Sheriff to command the Defendant to do somewhat in certain that the Plaintiff sueth for, which if he do not, then to serve the first process. The form is, Praecipe A. quod reddat B. &c. Et nisi fecerit, &c. tunc summon. &c. And is a Praecipe quod reddat which lieth for things in render. As of real things, land and such other things in demesne, rent, corrody, &c. of personal things, mony, goods detained, and the like. A Praecipe quod faciat which lieth for things not in render, whether they lie in Feasance as a Writ de consuetudinibus & servitils, Sectu ad molendinum, &c. or in suf∣ferance, as a quod permittat, or in other things of any such like nature.

A Si fecerit te securum, is that which willeth the first process to be served with∣out more ado. The form is, Si A. fecerit te securum de clamore suo prosequendo tunc sum∣mon, &c.

Real actions where a free-hold shall be* 1.104

recovered, are possessory or in the right.

Possessory, which are to recover a pos∣session, as all Assises, Writs of Ayel, Be∣sayel, and Cosenage.

In the right which are to recover a possession mixt with the right, of all which examples do follow after.

And both these may either be of a pos∣session or right in himself,* 1.105 or descended from his Ancestors; which we call aun∣cestrel.

Real actions in the right, are either founded upon the right, or for the mett right.

Statutes.

Merton c. 8. Seisin of ones Ancestor in a writ of right, shall be from the time of Henry the second.

In a mortdauncester writ of Niese and of Entry, from the last return of K. John out of Ireland.

In an Assise of Novel Disseisin, from Henry the thirds first passage into Gas∣c••ign.

Westm. 1. c. 38. Seisin of ones ancestor in a Writ of Right, shall be from the time of Richard the first.

In an Assise of Novel disseisin and nuper obiit, from Henry the thirds first passage in∣to Gascoign.

In a Mortdauncester, Cosenage, Ayel,

Entry, and Writ of Niese, from Henry the third's Coronation.

32 H. 8. c. 2. Seisin in a Writ of Right shall be within sixty years.

In a Mortdauncester, or in another possessory Action, upon the possession of his Ancestor or Predecessor, shall be within fifty years.

A Writ of the possession of the Plaintiff himself shall be within 30 years.

An Avowry or Cognizance for rent, suit, or services of the seisin of his Ance∣stor, or of his own, shall be within forty years.

Formedon in Remainder, Reversion, Scirae facias upon a fine, shall be within 50 years after the title accrue. If a man pre∣scribe in land, rent, or such like, of the possession of his Ancestor or Predecessor, he shall alledge seisin in them within 40 years next before the time of the Prescrip∣tion, Title, or Claim.

1 Mar. c. 5. The Statute of limitation of 33 H. 8. c. 2. shall not extend to a Writ of right of Advowson. Quare impedit, Jure patronatus, Assise de Darrein, Presentment, droit de gard of any Lands holden by Knights service; but the time of the sei∣sin alledged shall be as it was at the Com∣mon Law.

These kind of real Actions, viz. where the freehold shall be recovered, lie only a∣gainst the tenant of the Freehold.* 1.106 There∣fore a release of all Actions real is no Plea,

unless he were Tenant of the Free-hold at the time of the release; for else he had no cause of any such action against him.* 1.107 Neither is any such action maintainable a∣gainst lessee for years, for he hath not the Free-hold. Nor the disseisee cannot have a Fraecipe quod reddat against the disseisor,* 1.108 which is partner of the profits for years only, notwithstanding the Statute; be∣cause by the Common Law no action li∣eth against him.* 1.109 And for this cause also, non tenure of the whole, or though it be but of parcel of the thing demanded. Joint-tenancy with one not named in the Writ.* 1.110 Entire-tenancy of the whole, or several tenancy of parcel, when the writ is brought against two or more, are good Pleas in abatement of the Writ.

Statutes.

25 E. 3. c. 16. Non tenure shall not abate the Writ, but only for the quantity.

37 E. 3. c. 17. No writ shall be abated by knowledgment of villenage, if the De∣mandant or Plaintiff will aver that he that alledged the exception was free, day of the writ purchased, with the Free-holder may be joined in action, any having title to en∣ter;* 1.111 as the Mortgager with the Mortga∣gee, the Lord with his Villein, but not the disseisee with his disseisor.

CHAP. V. Of a Plea of Land.

A Real Praecipe quod reddat is that which is for real things in render; and is a plea of land, or other such real Praecipe.

A plea of land which is for land or other such things in demesne, where land in cer∣tain is demanded, it must always be brought in a ville, or place known out of any ville; and not in a hamlet which is parcel of a ville. But personal actions, as trespasses, and such like, may be in a hamlet. So of Dower and Assise; for there no land in certain is demanded; and also in an Assise, he shall recover by view of the Jury. So in a Scire facias out of a fine nuper obiit, a writ of mesne, covenant, waste, quare impedit. These may be in a hamlet. Otherwise it is of a writ of right of Advowson.

A plea of land is a writ of Entry, or a writ shewing the Demandants title.

A writ of Entry is that which is to disprove the Tenants possession by the means of his entry.

Wherein Tenant in Fee-simple de∣manding of the possession of his Ance∣stor, shall say in the writ,* 1.112 quod clamat esse jus & hereditat••m suam. Tenant in tail, or for life, shall not so.* 1.113 But in his

declaration set forth his special estate.

A Writ of Entry is either against the first party, or in the degrees.

Against the first party, when it is a∣gainst him to whom the first alienation 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, cometh in immediately under the first party, as heir unto him, or by alie∣nation from him.

In the Per and Cui, when he against whom it is brought cometh in immediate∣ly under the first parties heir or alienee: For if more than these two alienations (the Per, or the Per and Cui) pass, the deman∣dant is driven to his writ of right. And the reason is, that there may be an end of suits. For no writ of Entry in the Post lay at the Common Law, but the same is gi∣ven by the Statute of Marlbridge, c. 29. Which writ of Entry in the Post given now by that Statute lieth, when he against whom it is brought cometh in, neither in the Per, nor Per and Cui, then the writ shall be In quod, &c. nisi post dimissionem, &c. Out of all degrees, as by Abatement, Disseisin, Escheat, Recovery, Election, Succession, Dower, Judgment, &c. or as the third or more Feoffees.

The form of all which is thus. In a writ of Entry, in the nature of an Assise, against the party himself that did the disseisin,

Praecipe A. quod reddat E. unum Messuagium, &c. de quo A. injuste & sine judicio desseisivit B. &c. or in the other form disseisivit C. patrem, or other Ancestor of B. cujus heres ipse est, &c. In the Per thus. In quod idem A. non habet ingressum nisi per C. qui illud ei dimisit qui injuste B. &c. (or in the other form) qui injuste &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 in∣juste B. (or in the second form) qui injuste E. patrem, &c. praed. B. In the Post thus. In quod, &c. nisi post disseisinam quam D. injuste fecit praed. B. (or in the other form) in∣juste 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 Entry upon an a∣lienation. Marl. c. 29.

Writs of Entry grow either without wrong at the first, or upon a wrong.

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

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

Of a particular estate ended is an ad terminum qui praeteriit, or Entry ad Commu∣nem Legem.

Ad terminum qui praeteriit, is upon a de∣forcement by the lesser or a stranger after a lease for years, or life expired, whether the Lessee did alien, or not. But not after

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

Entry ad communem legem is, when Te∣nant for life, be it his own or anothers life, Tenant in Dower or by Curtesie of England doth alien and die, and he in the reversion for life, may have this Writ.

Of a condition broken, as Causa matri∣monij praelocuti. C••usa matrimonij praelocuti, is for a woman that giveth land to a man to marry her, and he will not: but it lieth not for a man that giveth lands to a woman.

Grounded upon the disability, are a Dum fuit infra aetatem, and a Dum non fuit compos mentis.

Dum fuit infra aetatem is by the infant, when he cometh to his full age, upon an alienation by himself, or his ancestors be∣ing within age.

But the clause that he is of full age, viz. qui plene est aetatis, shall not be inserted in the writ, if either it be brought in the degrees, Per, cui, or post, or upon the ance∣stors alienation.

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

Those upon a wrong at the first are ei∣ther upon 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 upon his alienation of her

fee-simple, fee-tail, or free-hold, whether Dower or otherwise, or of such a joynt e∣state in them.

And in this writ claiming a fee-simple; but not an estate Tail or Free-hold; for there the writ shall make special menti∣on of the estate, she shall say, Quod clamat esse jus & hereditatem suam, though it be of her own possession.

Statutes.

Westm. 2. c. 3. A cui in vita given to the wife after her husbands death, upon his losing of the Land by default. And the Tenant that recovered against her hus∣band must maintain his own right.

If it be an estate of fee-simple, and she bring not in her life time a cui in vita, the heir shall have a Sur cui vita. But of an e∣state tail only, a Formedon lieth in this case for the heir.

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

A sine assensu capituli is for the Succes∣sor of a Bishop, Abbot, Prior, Dean, Prebendary, or Master of any Hospital, after the discontinuance of the Predeces∣sor, viz. when they alien the Lands they have in the right of their Church, House, Abby, or Priory, without the consent of their Covent, Chapter, or Conferers, &c.

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

That upon an intrusion is called a writ of intrusion, and is for him in the reversi∣on or remainder in Fee-simple, or for life, not in tail (for he shall have a Formedon) nor for years, because he hath not the free-hold, after the death of tenant for life in Dower, or by courtesie.

And if Land be given to two, and the heirs of one, and he that hath fee dieth, and after him tenant for life dieth; now the heir of him in the remainder shall have this writ. And it lieth 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 Entry in the Quibus; or which is all one in the nature of an Assise.

Writs that shew the demandants title, are meer possessory, or in the right.

Meer possessory are those which are brought by the next heir upon an abate∣ment after the death of an Ancestor, other than his Father, Mother, Brother, Si∣ster, Vncle, Aunt, Nephew, Niece; for upon an abatement after the death of any such Ancestor, an Assise of Mortdaun∣cester lieth, as shall appear afterwards: seized in demesne, as of a Fee-simple the day of his death, though he were disseised the very same day, and so died not seiz∣ed at all. Of this nature are,

A writ of Axel after the death of his Grandfather or Grandmother.

A writ of Besay••l after his great Grandfather or Grandmother.

A writ of Cosinage after the death of his great great Grandfather or Grand∣mother, or any other collateral Cosin, as the great great Grandfathers brothers.

Statutes.

West. 2. c 20. In a writ of Cosinage, Ayel and Besayel, the point shall be enquired whether the Demandant be next heir as well as in a Mortdauncester.

In the right, is that which is to dis∣prove 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 Demandants right is grown. And is a Formedon, or a writ of Escheat and Dower, unde nihil habet.

A Formedon is a Praecipe quod reddat, entitling the party by the form of the gift.

And is a Formedon in Remainder,* 1.114 or a Formedon in reverter: for a Formedon in descender lieth not at the Common Law, but is given by the Statute of West. 2. cap. 1.

A Formedon in remainder is for him in the remainder for(a) 1.115 life, or in(b) 1.116 fee upon a lease for(c) 1.117 life expired. For after an

estate tail expired, it lay not at the Com∣mon Law; because it was a Fee-simple, whereupon a remainder could not de∣pend.

* 1.118A Formedon in revertor is for the ho∣nor after the issue in tail determined, as at the Common Law, if the donee alien before issue had, and after die without issue: or if he have issue, and after he or his issue die without issue. Contrary it is if he had issue, and then had aliened, and died without issue.

A writ of Escheat is for the Lord that hath a Seigniory in fee, or for life upon an Escheat.

Dower, unde nihil habet, is a writ for ones dower,* 1.119 which hath received no part at all of it.

Statutes.

Westm. 1. c. 48. A writ of Dower unde nihil habet, shall not abate, though she have received part of her Dower before the writ purchased, unless it were of the same party against whom the writ is brought, and in the same Town.

* 1.120A writ of dower lieth against Gardein by Knights service, though he be not te∣nant of the Free-hold.

* 1.121A praeoipe in capite is a praecipe quod red∣dat, for the meer right; and therefore lieth only for Tenant in Fee-simple of Lands holden in chief.

Statutes.

Westm. 2. c. 4. In a place of a writ of right, a Quod ei deforceat is given to Te∣nants for life, or in tail, upon losing by default.

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

OThet real praecipe quod reddats, are those which are in respect of a Seig∣niory, as a writ of right of ward, and a writ of right Sur disclaimer.

A writ of right of ward is to recover the wardship: If of the body,* 1.122 it lieth both for Gardein in Soccage, and by Knights service: If of the Land, it lieth only for Gardein by Knights Service.

Statutes.

Marlb. cap: 7. In a writ De communi custodia, if the Deforcer come not at the grand distress, the same writ shall be rei∣terated as oft as well it may be within half a year following, and every time

the Writ read, and Proclamation made i•• the County Court, if he come not to an∣swer, nor the Sheriff find him within half a year, he shall lose the custody. Saving his action another time, if he have right.

West. 2. c. 35. In a writ of ward of land, or heir, or both, either of the parties dy∣ing before the Plea determined, a resum∣mons shall be. And in the grand distress day must be given, that three County days may be holden before the return, in every of which Proclamation shall be made, whereupon the Defendant not appearing, Judgment shall be given for the Plaintiff. Saving the right of the Defendant, if after∣wards he will claim it. So shall it be done in a writ of Ejectment of gard.

A writ of Right sur disclaimer is for the Lord,* 1.123 to prove the lands to be holden of him, when in an action where the services should be recovered, as in an Avowry made upon the Tenant for them:* 1.124 for there he shall recover the services inclusive, in∣asmuch as he is to have a return in an As∣sise, or praecipe quod reddat of rent (for there the services are expresly demand∣ed) but not in a per quae servitia (for there no services but Attornment only is de∣manded) nor in a justification,* 1.125 in a reple∣vin, or an avowry in an action of Tres∣pass (for there the defendant shall never have a return,* 1.126 nor recover his services expresly nor includedly, the Tenant in Court of Record, viz. in the Common

place, but not in Court Baron, or Coun∣ty Court. For there, if the Lord make Avowry upon the Tenant, and he disclaim to hold of him, the Lord shall be amerced, disclaimeth to hold of him.

And if in this writ of right sur dis∣claimer,* 1.127 he can prove the land to be holden of him, he shall recover the land it self for ever; because the disclaimer is of re∣cord.* 1.128 Therefore by such a disclaimer he is barred of all possessory actions for the services, as an Assise, Cessavit, Ravish∣ment of ward, and such like; but not of a Writ of Escheat, Right of ward, Right of customes, and services, &c.* 1.129 A••d though the Lords distress and avowry were law∣ful, yet the Tenant so disclaiming shall recover dammages of him; for the dis∣claimer giveth the Lord a better advan∣tage, viz. the Land it self.

Statutes.

Westm. 2. c. 2. If the Tenant disclaim in County Court, or other Court not of Record, the Lord may remove the plea before the Justices, to cause it to be of Record, so as he may have a writ of right sur disclaimer.

Glocest. c. 4. & Explanat. c. 4. when land is given in Fee-farm, 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 lie fresh by two years, so as no distress can be found in it,

not render, or do that which is contained in the writing, the other shall recover the Land by a Cessavit. But the donee coming before Judgment, if he render the arrear∣ages and dammages, and find sufficient to do from thenceforth, that which is con∣tained in the writing, shall retain his Land.

Westm. 2. cap. 21. If a man detain from any Lord his service due by two years, the Lord shall recover the Land by a Cessa∣vit. This lieth also for the heir of the Lord against his tenant, his heirs, or those to whom he alieneth the Land.

Westm. 2. c. 41. So if Religious Houses that have Land given them, &c. withdraw the alms, &c. by two years, the donor shall have the like action.

CHAP. VII. Of a Writ De Consuetudinibus & Servitiis, and Secta ad molendinum.

A Real praecipe quod faciat is either to recover hereditaments, or some re∣al thing that concerns them.

* 1.130Those that are to recover some he∣reditament, demanding of ones own seisin are in the debet and solet, de∣manding

of the ancestor seisin, they are in the debet only, and then are in all respects as writs for the meer right, that is to say, are triable by battel or grand Assise.

These are either in respect of a Seigni∣ory, or to recover some other heriditament.

In respect of a Seigniory, as a Writ De Consuetudinibus & Servitiis, and a secta ad molendinum,

A writ De Consuetudinibus & Servitiis lieth for the Lord that hath an estate for life, or a greater estate, in the Seigniory,* 1.131 and is deforced of his services.

Secta ad molendinum lieth for the Lord,* 1.132 when the Tenants that hold of him by grinding their corn at his Mill, with∣draw their suit, and grind elsewhere.

Statutes.

Marlb. c. 9. The Process either where the Lord distraineth against the form of this Statute, or the Tenants withdraw the suits due, is attachment (wherein only Essoin is allowable, and deliverance of the distress incontinently to remain so till the plea be ended) venire fac. and the grand distress. At which day not appearing, the distresses delivered shall so remain till re∣covery in the Kings Courts, till which time the Lord (in case he be Defendant) must distrain no more, and the Plaintiff shall be dismissed without day, if the Defendant come to answer, and the matter pass a∣gainst

him, the Plaintiff shall recover dammages.

This of dammages to be recovered (in case where the tenant is defendant) is to be understood of withdrawing the suit from the Lord himself, and not from his Predecessors.

CHAP. VIII. Of a Quare Impedit, and a quod permittat.

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

* 1.133A quare impedit lieth upon a distur∣bance, where he, or his ancestors, or those from whom he claimeth, having at any time before presented to a Church, himself is now disturbed.

Statutes.

25 E. 3. c. 3. Stat. 3. Upon the King's collation or presentment to a benefice, his title shall be well examined, and be∣ing found before judgment untrue or un∣just, the collation or presentment shall be repealed. And the patron or possessor which sheweth the false title, shall have thereupon Writs out of the Chancery, as many as are needful.

Marlb. c. 12. In a Quare Impedit, and Assizes of Darrein presentment, day shall be given from fifteen days to fifteen days, and from three weeks to three weeks. And in a quare impedit, the process shall be a summons, attachment, or grand distress.

Westm. 2. c. 5. If Coparceners make par∣tition to present by turn, and one of them present accordingly, he that is afterwards disturbed shall have a Scire facias (and not be driven to his quare impedit) and reco∣ver his presentation with dammages.

An Avowson (after the death of one that hath presented) being assigned in Dower, or to tenant by Courtesie, & they present, the heir, if he be disturbed after their death shall have a quare impedit, or Darrein pre∣sentment at his pleasure. So of an Avow∣son demised for life, years, or in tail, when six months pass hanging a quare impedit or Darrein presentment, so as the Bishop presenteth by lapse, the patron shall re∣cover dammages to two years value of the Church: otherwise dammages to half a years value. The disturber not being able to render dammages, shall in the first case have imprisonment of two years, in the second of half a year.

A quod permittat lieth for one that hath Common of pasture for his beasts,* 1.134 being disturbed by a stranger, so as he cannot use his Common.

CHAP. IX. Of a Curia claudenda, Writ of Covenant real, mesne and warrantia charta, where of fines.

THose that are to recover some real thing concerning Heriditaments are a Curia claudenda, or a Covenant real, and other Writs founding in that na∣ture.

* 1.135A Curia claudenda lieth for a Free-hol∣der, not for a Tenant for years, when one that hath a Close next adjoyning to him, which he should keep enclosed, will not do it. A Writ of Covenant real lieth upon a Covenant to do a thing real, as to levy a fine of Lands, &c. Writs in the na∣ture of a Covenant real, are a writ of mesne, and a Warrantia charta.

* 1.136A Writ of mesne lieth for the Tenant against the mesne, when the Lord para∣mount doth distrein the Tenant whom the mesne ought to acquit.

Statutes.

Westm. 2. cap. 9. The Tenant distressed

by the chief Lord, may have a Writ in the County where he is distreined against the Mesne, who having Land in that Coun∣ty, and not appearing till the grand di∣stress, day shall be given in the grand di∣stress, so as two Courts may be holden before the return; wherein the Sheriff shall proclaim that he come to answer the Tenant at the day. At which day if he come not, he loseth his service, and the Tenant shall hold of the chief Lord by the same services that the Mesne held. The chief Lord may not distrein the Tenant of the Demesne if he offer the Service due: And exacting of him more than the Mesne ought to do, that Tenant shall have the remedy that the Mesne might have.

Upon a return that the Mesne had no∣thing to be summoned by, an Attachment shall go out, and upon a nihil returned, the grand distress with proclamation as before.

The Mesne having no Land in that County, but in another, upon such a return by the Sheriff, the party shall have a Writ Judicial to summon the Mesne in that County where it is testifi∣ed that he hath Lands; and both there, and in the other County, shall proceed to the grand distress, and Proclamation and Judgment as before.

The Mesne coming into the Court and

acknowledging, or being adjudged to ac∣quit his tenant, and not doing it, the tenant shal I have a Judicial writ of acquittance. Whereupon if the mesne come in, and the tenant can aver that he hath not acquitted him, he shall be satisfied of his dammages, and be quit of the mesne, and hold of the chief Lord; and if the mesne come not at the first distress, then another distress shall go out, and proclamation, and so pro∣ceed to Judgment as before.

This Statute extendeth only where there is but one mesne between the Lord that di∣straineth and the tenant, the mesne of full age, and the tenant tenant in Fee-sim∣ple.

A Warrantia Charta lieth for him that hath Lands or Tenements warranted un∣to him▪* 1.137 either by feoffment(a) 1.138 release, or confirmation with clause of warranty, where his hereditaments are liable from the time of the action brought.* 1.139 Therefore it is policy for one to bring his Warrantia Charta before he be sued. For upon vouch∣ing when he is once sued, he recovereth in value but such Lands as the vouchee hed at the time of the voucher.

And upon these writs of(a) 1.140 Covent re∣al,(b) 1.141 mesnes,(c) 1.142 warranty of Charters, as also upon a Writ of(d) 1.143 customes and service, a fine may be levied.

A fine is the acknowledging of an he∣reditament in the King's Court according to the covenant, to be his right that doth

complain. He that complaineth is called Plaintiff, and the other Deforceant. And this acknowledging of it to be ones right is called, A fine sur conveyance de droit; but If the right be acknowledged to be his, as that which he hath of the gift of the Coni∣sor, it is called a Fine sur conisance de droit come ceo quel ad de son donne. The form of a fine is, Haec est finalis concordia facta in eu∣rit dn'i Regis, &c. unde plac' conventionis pendet in ead' curia sc. qd. praed. I. S. recogno∣vit tenementa praed. esse jus ipsius A. &c.

A fine may be levied upon a writ of warranty of Charters, for it is in effect but a Covenant between the parties before the Justices, and entred of Record.* 1.144 And be∣fore the Statute of Westm. De his quae concor∣data sunt (which giveth a scire fac.) if the fine were not executed, the party should have a writ De fine facto, and recover dam∣mages only, which proveth that a fine is but a Covenant of Record.

Where one of them must needs have such an estate at the time of the fine levied, for against the plea that the parties to the fine had nothing,* 1.145 &c. it is no good replication that the parties were seized, &c. for if one of them were seized it is sufficient.* 1.146 Which form of pleading (viz. that one of the parties was seized) proveth, that if he have left an estate for years the fine is void.* 1.147 And a fine of the Land it self will pass a∣way a Reversion depending upon an E∣state for life. And this is as it were a

feoffment of Record.* 1.148 So as a Freehold passeth thereby without any livery of sei∣sin. That whereof the fine is levied, or any thing contained in it, as a Rent-common, &c. out of the Land, and Estate for years, or other Estate in the Land, &c. may be granted back again to the Conisor by the same fine. And this it called a fine Sur graunt & render; the form whereof is; Et pro hac recognitione, &c. The Conisee concessit to the Conisor, praed' tenem' cum pertium & illa reddidit in ead' curia haben', to the Conisor, &c. for none can take the first Estate but those that are named in the Writ of Covenant; but every stranger may take a remainder. As A. levieth a fine to B. who rendreth it back 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 levatis. Exception against a fine, that the Plain∣tiffs or Defendants, or their Ancestors, were always seized of the Lands con∣tained in the fine, shall not from hence∣forth be admitted in the parties to the fine or their heirs.

The fines shall two days in the week be publickly and solemnly read, and all pleas cease in the mean time.

5 H. 4. cap. 14. All Writs of Covenant and other, whereupon fines be levied, the

Dedimus potestatem, and all knowledges and notes of the same, before that they be drawn out of the Common Bench by the Chirographer, shall be inrolled in a roll to be of record for ever. Out of the which execution shall be had, if the notes or fines shall be imbezelled.

23 Eliz cap. 3. Every Writ of Cove∣nant, or other writ whereupon any fine is levied, the return thereof, the Dedimus potestatem, and return thereof, the con∣cord, note, and foot of the fine, the pro∣clamations and the Queens silver. Also every writ of Entry in the post or other writ, whereupon any common recovery is suffered, the writs of summons ad warrantiz••ndam, and the returns of all these writs, and every Warrant of At∣torney may at any mans request be in∣rolled. Which enrollment shall be of as great force to all purposes in Law, as the things themselves, if they were extant.

No fine, proclamation, or common reco∣very shall be reversed by writ of Error, by reason of false Latin, rasure, enter∣lining, misentring of the Warrant of At∣torny, or of any proclamation misentring, or Non-return of the Sheriff, or by rea∣son of any other defect of form in words, and not in matter of substance.

Fines executed bind all persons,* 1.149 if claim be not made within a year, there∣fore it is called a fine, Quia finis finem

litibus imponebat.* 1.150 And in a fine upon a ren∣der, if the Conisee sue not execution within the year, but after the year, by a Scire facias, no stranger need to lay his claim.

Statutes.

34 Ed. 3. c. 18. The plea of Non-claim of fines from henceforth to be levied, shall not be any barr.

34 H. 7. c. 24. Every fine after the in∣grossing shall be proclaimed in the Court the same Term and the three next, four several days in every Term, all Pleas ceasing the whilst. Which proclamations so made, the fine shall conclude all privies and strang••rs, except women covert, per∣sons within 21 years of Age, in Prison, our of the Realm, or if non sane memorie (being no parties to the fine.) So they or their heirs take their action, or lawful entry within five years after those imper∣fections removed. Saving to all persons, and their heirs (other than parties) the right claim and interest which they have at the time of the fine. So that they pursue it by action or lawful entry within five years next after the proclamations. And saving to all other persons such right, title, claim, and interest, as first shall grow, re∣main, or come to them after the proclama∣ti••n, by force of any matter before the fine. So they take their right according to

the law, within five years next after it grow, &c. And those that be Covert-baron &c. at the time when it groweth, &c. that they or their heirs take their actions, or lawful entry within five years after those imperfections removed.

Saying also to all not parties, nor privies the exception that none of the parties, nor any to their use, had any thing in the Lands at the time of the fine.

31 H▪ 8. c. 36 All fines levied by any person of 21 years of age of Lands en∣tailed before the same fine, to himself or his ancestours in possession, reversion, re∣mainder or use, shall immediately after proclamation made, be a sufficient barr a∣gainst him and his heirs, claiming only by s••ch entail, and against all other, claim∣i••g only to his use, or the use of any heir of his body.

1 Marlb. c. 7. All fines whereupon proclamations be not, or shall not be du∣ly made (by reason of the adjournment of any Term by Writ) shall be as good as if any Term had been holden from the beginning to the end, and Procla∣mations therein made according to the Statute.

31 Eliz. c. 2. Proclamations of fines shall be only four times, viz. once in the Term wherein the fine is ingrossed, and once every of the three Terms next after.

A Feme-covert joyning with her hus∣band* 1.151

in a fine it bindeth her for ever. Therefore here the Iustices must examine her,* 1.152 to see that she do it willingly. For i•• she say upon her examination, that the hus∣band did imprison her to levy the fine, this fine is not to be received. A grant by fine of a Seigniory, Rent-charge, Rent-seck, remainder, or reversion, is presently good, Save for bringing actions that run in private between the Tenant and him. As an Action of Waste or Consimili casu,* 1.153 when the reversion of Tenant for life is granted by fine, and after Tenant for life alieneth in fee, a Writ of Escheat or Ward, when the Tenants services are granted by fine, and after the Tenant dieth without heir, or his heir within age.* 1.154 But in these cases he may enter for a Forfeiture or Escheat, and seize the Ward; and shall also be received upon default of Tenant for life.

CHAP. X. Of an Assise and Juris utrum.

THus much of real Pracipes. Real si fecerit te securum, are an Assise, and Juris utrum, or other.

* 1.155An Assise is such a real Plea meerly in possession.

An Assise of ones own only possession is an Assise of Novel Disseisin, or an As∣sise or Nusance. An Assise of Novel Dis∣seisin is for a Free-holder against his disseisor, whether it be of Land or Rent, or the Bayliff of the disseisor, if himself cannot be found: And being of a Rent-charge, or Rent-seck, all the Tenants of the Land, we call them terretenants,* 1.156 must be named, and the whole Land put in view, though he were disseised by one Tenant only. If the Lord distrein the Tenant too often for the Rent or Services: that is to say, such as too great a distress may be taken for, as Rent-service, &c. but not for fealty, suit of Court, &c. for which there cannot be any too great distress. And whether it be the Lord mediate or immediate, the Tenant may have an as∣sise: the reason is, for that the Tenant cannot make rescouse.

Statutes.

Magn. chart. cap. 12. Assises of Mort∣dauncester, and of Novel Disseisin, shall not be taken but in their proper County by the Justice of Assise; and if they can∣not be determined there, they shall be determined by the same Justices in their journey: upon a difficulty of any points, they shall be reserved to the Justices of the Common Place, and there deter∣mined.

Westm. 2. cap. 13. 13 E. 1. Stat. de Mercator. 27 E. 3. cap. 9. Tenant by Elegit by Statute-Merchant, and by Statute-staple, shall have an Assise of Redisseisin.

Westm. 1. cap. 47. The Gardein or chief Lord enfeoffing one of parcel of Land in his hand, the heir may presently have an Assise of Novel disseisin against the Gardein and Tenant, and the Gardein shall lose the Ward, and all the ten∣nant that he holds of the heirs for life.

Westm. 2. cap. 25. A man shall have an Assise for Estovers of Wood, profit to be taken in wood of Nuts, Acorns, and other fruits of Corrodies, delivery of Corn and other Victuals and necessaries of Money to be received yearly in a place certain of toll, trorage, passage, pontage, pawnage, and such like, to be taken in places certain. Custodies of Woods, Parks, Forests, Chases, War∣rens, Gates, and other Bailywicks and Offices in fee. And in all these cases the Writ shall be De liber•• ten••ment••. Likewise an Assise is given for Common of Turve-land, fishing, and such like Commons which a man hath append••nt to a Free-hold, or without a Free-hold by special Deed, at the least for term of his life.

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

Escheator, Sheriff, or other Bay∣liff of the King, that seizeth any Lands by colour of his Office, without special warrant or commandement, or certain Authority that belongeth to his Office so to do, and double dammages to be recovered.

Westm. 2. cap. 25. When Tenant for years, or in ward, alieneth in fee, the remedy shall be by an Assise, as well against the Feoffer as the Feoffee, during the life of either of them. If by the death of either of them remedy fail by that Writ, then the remedy shall be by a Writ of Entry.

7 Rich. 2. cap. 10. An Assise of No∣vel Disseisin of Rent out of Tenements in divers Counties, shall be in the confine of the same Counties.

Westm. 2. cap. 25. In an Assise, if one named a Disseisor do personally al∣ledge an exception, whereby the ta∣king of the Assise may be deferred, as that another time an Assise of the same Land passed between the same parties, or that there is a Writ of higher nature hanging, &c. and hereupon voucheth Rolls or Records to warranty, and at the day given him, he fail of that he vouched, he shall be adjudged a Dis∣seisor, without taking an Assise, ren∣der double dammages, and have a years imprisonment. If such excepti∣on be alledged by the Bayliff in the

absence of his Master, the taking of the Assise and Judgment shall not thereupon be delayed. But his Master afterwards offering to prove before the same Justi∣ces, such an exception shall have a Venire facias for the Record, which if the Justi∣ces see, might have been available to have barred the Plaintiff, they shall award a Scire facias against him that recovered, wherein the Defendant shall recover a∣gain his seisin and dammages, with his double dammages sustained since the first judgment and imprisonment of that par∣ty that recovered. In like manner, if the Defendant, against whom an Assise passed in his absence, shew any Deed, Release, whereupon the Jury were not, nor could not be examined, because there was no mention of them in the pleading, the Ju∣stices, upon sight of those writings, shall award a Scire facias against the party that recovered, and cause the same Jurors to come before them. And the writings be∣ing proved true by their verdict, or by the enrollment of them, like punishment shall be as before.

Westm. 2. cap. 30. The Jurors shall not be compelled to find a disseisin, or no disseisin, but may give their verdict at large.

Merton. c. 3. A man disseised recovering his seisin by Assise of Novel Disseisin, or confession of the party, and having the same delivered him by the Sheriff, if he be

again disseised of the same Tenement, by the same disseisor, shall have a Writ of Redisseisin to command the Sheriff, ta∣king with him the Keeper of the Pleas of the Crown, and other lawful Knights, in proper person to go to the Land, &c. and by the first Jurors, and other law∣ful men, to make enquiry. This must not be without special commandment of the King.

Westm. 2. cap. 26. A writ of redissei∣sin shall lie for them that have r••cover∣ed by default, redition, or otherwise, without Recognition of the Assises and Jurors.

Merton. cap. 3. There disseisor shall be imprisoned.

Marlb. cap. 8. And not delivered without special commandment of the King, and besides shall pay a fine.

Westm. 2. cap. 26. He shall answer double dammages, and not be replevia∣ble by the common writ.

Westm. 2. cap. 8. In fine, writs of re∣disseisin must be inrolled in the Chancery, and a Transcripsit thereof shall be sent into the Exchequer in the end of the year. An assise of Nusance is for him whose Free-hold is spoiled by any Nusance;* 1.157 for if he have but a Lease for years in the Land, he shall not have an assise of Nu∣sance, but an action upon his Case.

Statutes.

* 1.158Westm. 2. c. 24. Giveth an Assise of Nu∣sance against him to whom the Tenement is alienated after the Nusance is made.

6 R. 2. c. 3. The Plaintiff, if he will, may have a writ of Nusance in the nature of an Assise, determinable before the Ju∣stices of one Bench or other, or before the Justices of Assise.

An Assise of his ancestors possession on∣ly called an assise of Mortdauncestor, is for the next heir upon an abatement after the death of his father, mother, brother, sister, uncle, aunt, nephew, or neece: for of other Auncestors, a writ of Ayel, Besayel, or Co∣sinage, and not a Mortdauncestor lieth, who was seized in demesne as of a fee(a) 1.159 simple the day(b) 1.160 of his death, though he were disseised the very same day, and so died not seized at all. But upon Lands gi∣ven to one and his second wife (he having a son by a former) and the heirs of their two bodies, their son cannot have a Mort∣dauncestor (after the death of his father overliving the second wife) for he is not next heir, but his elder brother: and therefore, by the Common-Law, he was driven to a Formedon en descender,* 1.161 which was nothing else but a writ formed upon his case. So if the Auncestor were seized in tail, the remainder to his right heirs, a Mortdauncestor lieth not, for thereof the

Demesne he is seized in tail, not in fee.

Statutes.

Magna charta cap. 12. vide supra.

Marlb. cap. 16. A Mortdauncestor gi∣ven against the Lord that will not render the Land to his Ward at full age.

Westm. 2. cap. 4. If a woman having no right, recover dower against a Gardein, the heir at full age shall have a Mort∣dauncestor against her.

Gloucest. cap. 6. All the heirs, where∣of one is son or daughter, brother or sister, nephew or neece, and the other in a further degree shall joyn in a Mort∣dauncestor.

Gloucest. cap. 3. The heir shall have an Assise of Mortdauncestor, if Tenant by Courtesie alien and leave no assets.

An assise which may be either of his own, or his Ancessors possession, called an assise of Darrein presentment, is up∣on a disturbance when(a) 1.162 himself or his Ancestor did last present; and therefore lieth for(b) 1.163 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 be always taken

before the Justices of the Common Place.

* 1.164Marlb. cap. 12. and Westm. 2. cap. 2. A Juris utrum is such a real Plea found∣ed upon the right for a Parson or Vicar upon his predecessors alienation.

Statutes.

14 E. 3. cap. 16. A Juris utrum, and other writs according to their case, given to Parsons, Vicars, and Wardens of Chap∣pels, Provosts, Wardens, and Priests of perpetual Chauntries for Lands in Frank∣almoign, as well as to Parsons of Chur∣ches or Prebends.

CHAP. XI. Of a Writ of Partition, Nuper obiit, and a Quo jure.

THis is the nature of an assise, and Juris utrum. Those that follow are either a Partitione facienda, & nuper obiit (which doth lie between privies in blood) or a Quo jure.

* 1.165A Partitione facienda lieth between Co∣parceners to compel partition to be made but not between Jointenants,* 1.166 or Tenants in Common, yet partition made there by assent between them is very good; but the

husband of one of the Coparceners com∣ing to be Tenant by Courtesie, such a writ lieth for the other Coparcener a∣gainst him, because he cometh in of the state of his wife, but not for him, against the other.* 1.167 Therefore here for equality of partition, things that otherwise can∣not, may be granted without Deed: As a Rent, Reversion, Seigniory, Way, Avowson, Composition to present by turn, &c.

Statutes.

31 H. 8. cap. 1. Jointenants or Tenants in Common of an Estate of Inher••tance, may be compelled to make partition, and afterwards shall have aid to deraign the warranty, paramount, and to recover for the rate as Coparceners (after partition) should.

32 H. 8. cap. 32. Jointenants, or Te∣nants in Common for life or years, or where one or many hold for life or years with another that hath the Inheritance, may be compelled to make partition. Such partition shall be prejudicial to none but the parties, their Executors and As∣signs.

Nuper obiit lieth against one privy in blood,* 1.168 that entreth after the death of the ancestor that died seized in Demesne. And therefore being but to try the pri∣vity

of blood, vi••w, nor voucher, lieth not, neither is Non-tenure any plea.

* 1.169A Qu•• jure lieth for the Tenant of the Land when one challengeth Common, ther•• to try whether in right he ought to have any ••••n••.

CHAP. XII. Of Debt and Detinue, whereof a Writ of Annuity.

THus far of real Actions. A personal action is that wher•• dammages are to be recovered; for at the Common Law neither shall(a) 1.170 any but the Plaintiff reco∣ver dammages,(b) 1.171 nor dammages lie but in personal and mixt actions, nor in real, as Dower, writs of Entry, Sur Disseisin, Ayel, Cosinage, &c. For in them damma∣ges are given by special Statutes, which being but once suspended, or but against one, is gone for ever, and against all. As if the Creditor be made an Executor to his Debtor,* 1.172 and once administer, or take to wife one of the Executors of his Debtor,* 1.173 she having administred before, the acti∣on of Debt is gone for ever.* 1.174 So if two be bound in an Obligation to a feme sole, and after she taketh one of the O••ligors to husband,* 1.175 the whole duty is extinct.

Executors bringing an action, must do

it in all their names, as well of those that refuse administration, as of the rest. But an action may be brought only against those that do administer.* 1.176

Statutes.

9 ••. 3. c. 3. Stat. 1. In a writ of Debt brought against divers Executors, they shall have but one essoin before appear∣ance, and one after appearance. He or they that do first appear in the Court at the grand distress, shall answer to the Plaintiff, and the Plaintiff (if it pass for) shall have judgment and execution of the goods of the Testator against all named in the writ as well as if they had all pleaded. In personal actions growing in respect of •• possession in Common Tenants in Com∣mon are in all respects as Iointenants; for they must joyn in an action of Tres∣pass,* 1.177 for a Trespass done upon their ground: in an action of account against the Bailiff of a wood, and if one of them die, the survivor shall have an action of the whole. So if the Tenant for life,* 1.178 the re∣version to two sisters commit waste, one sister dieth having issue, and the Tenant commit waste again, the issue and her aunt shall joyn in an action of waste, and the aunt sole recover treble dammages for the waste done in her sisters time.

In personal Praecipes dammages only shall be recovered where the thing cannot be had:* 1.179 for dammages shall not be reco∣vered

in a writ of Detinu••, if the thing it self may be delivered,* 1.180 dammages I say, to the value of the thing demanded; but dam∣mages for the detaining shall.

Personal Praecipe quod reddats are Debt and Detinue.

Debt, when any thing is due upon a Contract.

* 1.181Which if it be money due from one to another in their own right, is in the Debt and Detinet, otherwise in the Detinet only. As in Debt,* 1.182 for the rent of Wheat, and Hens reserved upon a Lease for years, or of any Chattel,* 1.183 quick or dead, in Debt by or against an Executor for rent, upon a Lease of Land, though it be behind after the Testators death,* 1.184 or upon a former recovery of debt or dammages against Executors, or for Arrearages found in an Action of Account brought by them, for all is in the right of the Testator. But against an Heir upon an Obligation, &c. of his Ancestor, it lieth in the Debet and De∣tinet, for the assets which he hath in his own right, maketh it his proper debt. So for an Abbot or Prior upon an Obligation of the Predecessor,* 1.185 and though he be be∣hind himself only, and against husband and wife upon a recovery of debt and dam∣mages against the wife whilst she was sole.* 1.186

Statutes.

Magn. Chart. cap. 8. The pledges shall

be free so long as the principal Debtor is sufficient. And answering the Debt, shall have the Lands and Rents of the principal till they be satisfied.

2 H. 2. cap. 12. No Warden of the Fleet shall suffer any Prisoner in Execu∣tion to go out of Prison by Mainprize, Bail, Baston, without making gree to the party, unless by Writ, or other Com∣mandment of the King, upon pain to lose his Office, and the party to have a writ of Debt against him.

33 H. 6. cap. 10. Every Obligation taken by a Sheriff or his Ministers, by colour of their Office, of any person in their Ward by course of Law, shall be by the Name of their Office, and upon Condition that the Prisoners appear at the day and place mentioned in the Writs, Bills and War∣rants taken in any other form, it shall be void.

32 H. 8. c. 37. The Executors or Admi∣nistrators of him that hath any Rent or Fee-farm in Fee-tail, or for life, shall have an Action of Debt for the Arrearages in the Testators life time against the Te∣nants that should then have paid it, or may distrein (and make avowry upon his matter) in the Lands, so long as they re∣main in the possession of the said Tenant, or of any claiming only from him.

A husband seized of any such Estate in any Rent or Fee-farm in his wives right, shall (after her death) himself, his Exe∣cutors or Administrators, have the same remedy for Arrearages due in her life.

So of him, his Executors and Admini∣strators, that hath a Rent or Fee-farm du∣ring anothers life, and cestui qui vi, die, the same being unpaid.

Prerogative.

When any of the King's goods come into a subjects hands,* 1.187 whether by matter of Record or Enfait, so as he is accomp∣tant for them, his Land all times after is chargeable for the same, and subject to the King's seizure, into whose hands soever it come, whether by descent, purchase, or otherwise.

Statutes.

34 H. 8. c. 2. The Land of the heirs of high Collectors of any Task, Subsidy, or Lone, and of the Receivers of Courts, shall b•• chargeable therewith, as well that the heir hath by descent in Fee-••ail as in Fee-simple. And also that that is given him by the Collector or Receiver covenously, and thereupon the heir may have an action of debt against the Executors and Admini∣strators of his Ancestor, wherein no Es∣soin, protection, or wager of Law is al∣lowable; and have Execution of the goods

of the Ancestor, being in their hands at the time of the actions brought.

13 Eliz. c. 4. The Lands, Profits, and ••ereditaments of every Accomptant, or of him that receiveth money for the Queen, or her Successors, to be imployed to the use of the Queen, shall be extended (in the nature of a Statute Staple) for the payment of the Arrearages. Or the Queen, if he do not satisfie within six months af∣ter the Arrearage found, may sell his Land, and the party may have the surplu∣sage to be delivered unto him by him that received the money upon the sale, with∣out further warrant; this sale to be of any Land whereof it is found by inquisi∣tion, that the Accomptant taketh the pro∣fit••; which inquisition, if it be not true, the party grieved after traverse of the office, and that found for himself, shall have his Land again without any petition, livery, or ouster lemain. If any such buy La••d with the Queens Treasure, since the beginning of her Reign, and pay not the Arrearages as before, the Queen shall seize and retain the Land according to the rate that the party had it. This sale ex∣tendeth not to those Officers that have used to disburse the Arrearages about their charge, or offices which continue, except the Queen command present pay∣ment to be made, and then they shall have six months as before.

This Statute extendeth not to the Ac∣comptants,

whose yearly Rent, or whole Receipt from the beginning, exceedeth not CCC l. nor to Sheriffs, Escheators, Bailiffs of Liberties. Also the Sureties shall be ratable according to their abili∣ties, charged for the surplusage only which remains not satisfied by such sale of the Lands of such Officers.

39 Eliz. c. 7. The former Statute of 13 Eliz. shall extend to sales to be made after the death of the Accomptant or Debtor, and to an Accompt made, or Debt known within eight years after his death.

And none shall be taken a Debtor but such Officers and Accomptants (in this ••ct mentioned) as upon their Accompts finished (all reasonable Petitions being allowed) shall remain Debtor upon the foot of the Accompt.

After one year after the Accompt made or known (all reasonable Petitions allow∣ed) the Queen may by her Letters Pa∣tents sell so much as shall suffice 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 intent of 13 Eliz. the overplus, if any be, shall be redelivered without Petition or Fee. Every such sale shall be as good as if the party himself had made it for money, or other valuable consideration by bargain and sale, deed enrolled, feoffment, or recovery with voucher, and shall barr the party and his heirs, and all claiming under him, after he

shall be debtor or person accomptable, and all whom he might have barred by a∣ny recovery, and all whose Lands are to be sold by the intent of 13 El. and shall be good against the Queen and her Succes∣sors, and all claiming under them for any charge or incumbrance to the Queen or her Successors by the party.

Provided, it shall not avoid any Lease by the Queen in other sort than it should at the Common Law, if the Queen w••re satisfied.

This Act and 13 Eliz. shall extend to un∣der Collectors of Tenths and Subsidies of the Clergy, shall not impeach any assu∣rance made before this Parliament, bona fide, nor any Lease of 21 years, or three lives, whereupon so much yearly Rent shall be reserved yearly paiable, as hath been within 21 years before, nor customary Estates made according to the custome.

And of this nature is a writ of annui∣ty, which lieth for him that hath an an∣nuity in Fee for life,* 1.188 or though it be but for years, be it money or other things, as clothes, bread, &c. and is in the debet for them all: that is to say,* 1.189 for any other thing as well as for money, not in the de∣tinet contrary to an action of Debt,* 1.190 De∣tinue, when any thing is with-holden, which is called De catallis reddendis: if it be for writings, it is called De chartis reddendis.

CHAP. XIII. Of an Action of Account, and an Action of Covenant.

PErsonal Praecipes quod faciat are an action of Account, and an action of Covenant.

An action of accompt which is for an an accompt to be made: As if one be made a Bailiff of a Mannor,* 1.191 &c. then it is against him as Bailiff; if Receiver of his Rents, Debts, &c. then as Receiver: if both Bai∣liff and Receiver, then as Bailiff and Re∣ceiver.

Statutes.

Marlb. c. 23. Attachment given in an Action of Accompt against Bailiffs that withdraw themselves, and have no Lands nor Tenements to be distreined by.

Westm. 2. c. 11. He to whom the Ac∣compt is to be made, may assign Audition to take it, who may immediately commit to the next Goal the Accomptant (being found in Arrearages) till he fully satis∣fie: whereupon the Accomptant finding himself grieved, may bring the matter by a Scire facias before the Barons of the Exchequer.

Prerogative.

The King may have it against Execu∣tors, and so can no other man.* 1.192

An action of covenant which is for a covenant; that is to say, an agreement by Deed to be holden.

CHAP. XIV. Of Writs where the Peace is not broken.

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

Of those without force, some go not so far as breach of the Peace; others do br••ak it.

Those that break not the Peace are these that follow.

Rationabili part•• bonorum, for the Wife and Children of one deceased to have their part of the goods.

Valore maritagij for gardein in Knights service, when the heir at full age refuseth to satisfie him for his marriage:* 1.193 And therefore there in the writ are no words of the heirs intrusion into the Land.

A ••rit of forfeiture of marriage is to recover the double value against such an heir marrying himself within age,* 1.194 without the Lords assent, and at full age putting out the Lord.

Entrusion of ward, when the heir of Land by Knights service entreth, and putteth out the Lord, whether during h•••• non-age, or after his full age, if the Heir both intrude, and deny the value of the Land also, then this writ of Intrusion of Ward may be brought for both.

* 1.195Ejectione custodiae for any Gardein by Knights service or Soccage, against •• stranger, ejecting him of the Land or bo∣dy of the Heir, or both.

Quare ejecit infra terminum for Lessee f•••• years,* 1.196 against the Feoffee in fee, or for life of his Lessor; for in such a case an Eje∣ctione firme lieth not against the Feoffee or Lessee for life, because he is not the per∣son that doth oust him, but his Feoffo•• and therefore was this writ devised. A•••• here the term it self shall be recovered, if ••redge•• be not past, as in an Ejectione firmae th••redge•• cometh after.

* 1.197Trespass upon the case of things n••redge•• against the Peace; as Assumpsits for ••redge•• assumption to be performed, and such like and this lieth not against Executors.

* 1.198Here, and in all other actions of Tre••∣pass upon the Case, the writ must compre∣hend all the matter of substance, a••redge•• which is traversable as clearly as th••redge•• count, unless it be the day, quantity o••redge•• the Land, or such like.

CHAP. XV. Of Trespasses upon the Case, a∣gainst the peace, deceit, and conspiracy.

THe other that break the Peace, but not vi, are called Trespasses against the peace.

And of this kind specially are an acti∣on of Deceit and Conspiracy in the na∣ture of such a Trespass. An action of de∣ceit is upon any deceit committed,* 1.199 where if it be upon a Non-summons in a plea of Land, whereby he loseth the Land by default, or such like, it must be brought during the life of the Summoners, but nor when all the Summoners and Veighors be dead.

In a writ of deceit the Plaintiff shall recover all that he hath lost.* 1.200 As if it be brought upon a Recovery in a Quare Im∣pedit, &c. then dammages: If in a Forme∣don, then the Land only, but no damma∣ges, for he lost none in the Formedon be∣fore.

Conspiracy in the nature of a Trespass is upon conspiring by many to prejudice a man wrongfully.* 1.201 As if men conspire to en∣dict one because ••e arrested not a Felon that passed by the Town of M. And there∣by they cause him to be indicted & amer∣ced in the Leet of R. and F. and to be

taken and imprisoned for this Amercia¦ment, till he be thereof acquitted in the Leet. Or if men affirm and say to one A. that he hath right to such Land, and pro∣cure 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 endicted for hunting in a Park, whereby he is taken and imprison∣ed, and put to expences, till he have ac∣quitted himself of this Trespass.

CHAP. XVI. Of Trespass whereof Parco fra∣cto, Rescous, and Ejectio∣ne firme.

SVch are those without force; coupled with force is an action of Trespass, for a Trespass done, whether in Good••, or upon his Land; and so if it be of a bodily trespass, as Battery, &c. but in maim and rape it is called an Appeal.* 1.202 An action of Trespass brought in a Court Baron, whether by Plaint in the Court of a Mannor, Hundred, or County Court, or by writ in the County Court, must not sup∣pose it to be done by force and arms;* 1.203 for then a Supersedeas lieth, shewing that a plea of Trespass, quare vi & armis, shall not be holden in a lower Court than before the

King, or other Justices by his Command∣ment. And therefore no Capias lieth there,* 1.204 either in Process or Execution, but in Courts of Record only.

Statutes.

Marlb. cap. 38. A writ of Trespass is given to the Successors (in Religious Hou∣ses) for goods taken away from the Pre∣decessor, whether he commenced Action in his life, and died without Judgment, or though he commenced no Action.

And likewise to recover their own Seisin against Intruders in time of Vaca∣tion, wherein dammages are also given.

Marlb. cap. 4. If the Lord distrein for his services when none are due, yet he shall not be punished by fine and ran∣some, but only be amerced.

Westm. 1. cap. 20. Trespassors in Parks and Ponds attainted at the Suit of the party, besides making large amends ac∣cording to the Trespass and Fine, at the King's pleasure, shall have three years Imprisonment, and find good surety not to commit the like Trespass. And if he cannot find surety, he shall abjure the Realm. Being a Fugitive, and having no Land nor Tenement, whereby to be justified, he shall be proclaimed from County to County, and if he come not thereupon outlawed, if none do

sue within a year and a day, the King shall have the Suit.

5 R. 2. cap. 7. None shall make entry into Lands or Tenements, but where en∣try is given by Law. And in such case not with strong hand, nor multitude of peo∣ple, but in peaceable manner.

He that is convict of the contrary shall be imprisoned, and thereof ransomed at the King's will.

15. Ric. 2. c. 2. At all times that such for∣cible entries be made, and complaint thereof cometh to any Justice of Peace, he shall take sufficient power of the County, and go to the place, and if he find any that hold such place forcibly, after such entry made, they shall be taken and put into the next Goal, there to abide, convict by the Record of the same Justice, till they have made fine and ransome to the King.

8 H. 6. c 9. The like for them that make such forcible entry into Lands, or other possessions, or them hold forcibly.

And whether the parties be present or voided before the Justices coming, yet he shall inquire of the matter by the people of the same County in some convenient place, and shall cause the Tenements so entred or holden to be reseised, and restore the party (so put out) into full possession.

The party put out or disseised in this manner, shall recover treble dammages against the disseisor, or any feoffee, coming in by fraud.

31 Eliz. c. 11. No restitution upon an indictment of forcible entry, or holding with force, shall be good, where the party hath been in quiet possession three whole years next before the indictment, and his estate not ended.

Merton cap. 6. A Lay-man ravishing, or marrying a Ward within fourteen years of age, shall be imprisoned, besides loss of the value of the marriage.

Westm. 2. c. 35. One that hath no right, taking away the Ward, shall be imprison∣ed two years, though he restore the Child not married, or satisfie for his marriage. Not restoring him unmarrried, or not be able to satisfie for his marriage (in case he have married him) he shall abjure the Realm, or have perpetual imprisonment. The form of the writ, both when the heir is in the same County, or carried into a∣nother, is there s••t down.

If the Defendant there come not upon the distress, he shall be outlawed.

The Plea shall proceed, though the heir die, if the Plaintiff die before the plea de∣termined, &c. a resummons shall be against his Executors or Heirs (if the Executors have no Assets) to satisfie the value of the marriage.

Special actions of Trespass are these that follow.* 1.205

De' parco fracto for taking a distress of beasts, & other things distrained for dam∣mage

fesant, or for rent or services be∣hind, not of the Pownd, whether common Pownd, or other place that is a lawful Pownd, and whether he that so brake the Pownd be proprietor of the Beasts, or no. And this lieth for him that distreined, not for him whose the Close was, where one distreineth and putteth the Beasts by li∣cence into his Friends Close; for it is not the Pownd of the owner of the Soil, but of him that did distrein, and the other shall have an Action of Trespass, Quare clausum fregit.

* 1.206Rescous for taking such a distress away before it be impownded. And here the par∣ty must needs have possession of the Beasts or things so recussed; for if he be di∣sturbed before he do ••ttach or distrein them, a writ of Rescous lieth not, but an Action upon the Case.

* 1.207Ejectione firme when Lessee for years of Land is ousted, be it by the Lessor, or a stranger, where the term it self shall be recovered, if it be not past, as in a Quare ej••••it infra terminum before.

CHAP. XVII. Of Appeals that touch Life.

THese are the Common Pleas, an ap∣peal that concerneth Life is the par∣ties

private action,* 1.208 prosecuting also for the Crown in respect of a Felony, be it petty Treason, or other Felony whatso∣ever. But for high Treason no Appeal lieth.

Appeals of the death of a man are gi∣ven to the Heir of the party slain, for the husband shall not have an Appeal of the death of his wife, but her son.* 1.209 So the poisne brother of the whole blood shall have the Appeal, and not the elder bro∣ther of half blood; but the elder of the whole blood shall.

Statutes.

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

Magna chart. cap. 33. A woman shall have none but only of the death of her husband.

2 E. 6. c. 24. Endictment or Appeal good in the County where he dies, though the poisoning or stroke were in another.

3 H. 7. cap. 1. One acquitted upon an En∣dictment of Murder or Manslaughter, or as Accessory, shall go at large till the year and day be passed, within which time no Appeal may be brought (if no Clergy be had before) and all advantages therein sa∣ved, as if the acquittal had not been.

So against the Accessories, though the Principal were attainted at such suit of the King.

CHAP. XVIII. Of writs of right Patent.

* 1.210THus far of Original Writs; Commis∣sional are those which are not returna∣ble, but determinable before the parties to whom they are directed; and are but in effect commissionary, or meer Commissi∣ons. Of the first sort are those that give authority to a Court Baron, to hold plea where the Suitors are the Iudges, not the Sheriff or Steward. These are a writ of right Patent, or a Justicies. In both which the same course is holden, as in those that went before,* 1.211 viz. pledges as before, count as in them, and the same both process that is in the writs original of that nature. As in a writ of right Patent, a Praecipe in the nature of a grand Cape and p••tit cape. Tri∣al by battel, or grand Assise, &c. in Justice or Viccontiel, writs of Debt, Accompt, &c. Summons of Trespass, &c. Attach∣ment, but not a Capias in any case, for that lieth only in a Court of Record. Also many Actions of one nature may be joyn∣ed in one Justicies, with several Praecipes. So in Plaints, Bills, &c.

A writ of right Patent is a writ for the(a) 1.212 meer right of Tenements holden of a common perfon, as Land,(b) 1.213 Avowson, or Rent(c) 1.214 service: but not(d) 1.215 Rent-charge,

Rent-seck,* 1.216 or a Common to be brought to the Lords Court of that Mannor. But if he hold no Court, or otherwise yield his Court to the King for that time, at the prayer either of the Tenant or De∣mandant, then it may be in the King's Court with this Clause, Quia B. capitalis dominus nobis inde remisit curiam.

And this must shew by what service the Land is holden.* 1.217 The writ remaineth al∣ways with the party himself. So doth no other writ original. If one privy in blood not past the third degree, enter after the dea••h of the Ancestor that died in demesne not seized. As where a man letteth for life, and dieth in the life of the Lessee, having many Coheirs, and after that Lessee for life dieth, and one of the Coparceners entreth into all, or where the Ancestor is disseised and dieth, and one Coparcener entreth into all, there such a writ of right Patent, for the other Coparcener or for the elder brother, if the younger enter in∣to all, is called a writ of right De rationa∣bili parte terrae. And therein the grand Assise nor Battel shall not be joined for the privity of the blood;* 1.218 nor view nor voucher lieth: neither is No••-tenure any plea, for it is to try the privi••y of blood, as a Nuper obiit that went before.

A woman that hath received part of her Dower shall have a writ of right of Dowry Patent for the remnant, whereof she is to be endowed, wherein the same

things are to be observed that were i•• writ of Dower, unde nihil habet before.

CHAP. XIX. Of Justices.

A Justicies is a Writ that giveth the County Court power to hold plea; and therefore is called a Vicontiel writ: Of this sort are,

* 1.2191. An assise of petty Nusance is when a Mill, or such like, is levied to ones Nu∣sance.

All of them are comprehended in these verses:

rica Ca _____ _____ gulium ges lendinum Fab, fur, porta domus, vir, gur, mo, murus ovile: Et pons; traduntur haec vietcomitibus.

* 1.2202. For admeasurement of things, as admeasurement of Dower by the heir, when his gardein or himself endowed the wife in his nonage of more than she ought. But by this writ she shall have no new land assigned to her in Dower.* 1.221 But only there shall be taken from her so much of the land as amounteth above the third part of the land whereof she ought to be endowed.

* 1.222Admeasurement of Pasture by a com∣moner whom another commoner wrong∣eth by putting in more beasts into the Common than he should, whether the

Common be appendant or appurtenant, so it be to a certain number, wherein all the Commoners, as well those that have not surcharged, as those that have, and also the Plaintiff himself shall be admeasured. But it lieth not for the Lord against his Tenants surcharging, for he may distrein the sur∣plusage for dammage feasant. And as some say, may have an Assise; for it is a distur∣bance of the profit of his soil. Nor for the Tenant against his Lord surcharging, but he shall have an assise of common.

Statutes.

Westm. 2. cap. 7. A gardein may have a writ of admeasurement of Dower, and the Heir also at full age, if the Gardein follow it faintly.

In writs of Admeasurement both of Dower and Pasture after the great distress Proclamation shall be made two County days, whereupon if the party come, the plea shall proceed: if not, Admeasure∣ment shall be made in his default.

Westm 2. cap. 8. When the same party after admeasurement another time sur∣chargeth, a writ to enquire if that second surcharge shall go out either judicial, if the former Admeasurement were before the Justices, or otherwise original out of the Chancery. And the beasts surcharging the pasture, or their value, shall be an∣swered to the King.

* 1.2233. A N••tivo habendo for the Lord that hath an Inheritance in any villein, b••t not an estate for life or years;* 1.224 for this writ is in his nature a writ of right to recove•• the inheritance of his villein, when his villein departeth away from him.* 1.225 And here if the defendant plead that he is frank, the Sheriff cannot proceed.

* 1.2264. Rationalibus divisis, for that Lord whose Land or Waste hath by little and little been encroached upon within time of memory until now, by a Lord whose Seigniory adjoyneth in another ville, a∣gainst the Lord so encroaching.* 1.227 But if the encroachment be at once, whether now or before time, there an Assise of Novel Dis∣seisin lieth, and not this writ.

5. A homine replegiando, for one imprison∣ed,* 1.228 or in prison detained where he should not. As being bailable, or claimed as a villein, or in ward, where indeed he is frank out of ward.

* 1.2296. A Replevin for goods or chattels distrained, which according to the nature of the plea ministred by the parties, grow∣eth to be either a real or personal plea, as upon property claimed, then is it person∣al; if the Defendant avow the taking for Services or Rent behind, &c. then it be∣cometh real, &c. and as strong as a Praeci∣pe quod r••dda••, inasmuch as he is to have a return. And therefore he shall in that case have aid before any plea pleaded as in a Praecipe quod reddat.* 1.230 And this may be both

by writ and plaint in any Court-baron,* 1.231 as well as in the County Court. And being by plaint, though in the County Court, it s••••ll not proceed if any thing touching the ••••te-hold come in question, as if the De∣fendant avowing for dammage feasant, the Plaintiff justifieth by reason of Common of Pasture.

Vpon the pluries not served by the Sheriff, his power is determined,* 1.232 and the parties shall plead in Bank.

Statutes.

Marlb. cap. 21. The Sheriff may reple∣vin beasts not only without, but within a liberty also, if the Bailiff of the liberty will not.

Westm. 2. cap. 2. The Sheriff or Bailiff shall take pledges of the Plaintiff, not only de prosequendo before they make deliver∣ance of the Beasts, but of returning of the Beasts, if a return be adjudged, he that ta∣keth pledge otherwise shall answer the price of the Beasts. Upon a return award∣ed to the Defendant, the writ De returno habendo shall have this clause (that the Sheriff shall not deliver them without writ, wherein mention shall be made of the judgment.) And thereupon the Plaintiff (if he will) may have a judicial writ to the Sheriff to deliver him the Beasts.

Upon a return awarded, after which if a return another time be awarded, there shall be no more Replevins. And if upon his default the second time, or otherwise the

Defendant be adjudged to have a new ••••¦turn, the distress shall remain i•• reple••redge••¦ble.

1 and 2 Ph. and Ma. cap. 12. Ever••redge•• Sheriff of a Shire (being no City) shall a••redge•• his first County day,* 1.233 or within 2 mo••redge•• after receit of his Patent, proclaim in ••redge•• Shire town four Deputies at the le••redge•• dwelling not past 12 miles one from ano∣ther, which in his name shall make R••redge••¦plevins as the Sheriff might do himself.* 1.234

7 Many of the actions that went b••redge••¦fore, both for real things to be done, ••redge•• Consuetudinibus & servitiis; Sectae ad mol••redge••¦dinum; Quod perm••ttat; Mesne-do•••• Ʋnde nihil habet. And also personal Ac••redge••¦ons, as annuity, debt, detinue, acco••redge•• covert, trespass, to what sum soever, ••redge•• as well be brought in the County by I••¦stices, as to be returnable in the Comm••redge•• place.

CHAP. XX. Of meer Commissions.

MEer Commissions are these th••redge•• follow: being all of them to be ditt••redge••¦cted to choice persons, such as it sh••redge•• please the King.

Oyer and Terminer to hear a••redge•• determine upon some heynous trespa••redge•• committed;* 1.235 as rebellious Assemblies, I••¦surrections,

and such like And these are called Justices of Oyer and Terminer.

Statutes.

2 E. 3. cap. 3. It shall be granted only to Justices of the one Bench or other, or to Justices 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 Justi∣ces together with them, and may be direct∣ed to the Justices themselves to admit them, or to the parties that shall be so as∣sociate to signifie their association.* 1.236 That(a) 1.237 to the party is patent: The(b) 1.238 other to the Justices to admit him is always close.

Si non omnes is a writ for the rest to proceed, although the other come not. To be directed as well to the party to be as∣sociate as to the other Justices. Patent(c) 1.239 to the party, close(d) 1.240 to the Justices.

Ad quod damnum to enquire what hurt it may be to the King or Countrey, or any other for the King to grant such or such a thing, as a licence to alien in Mort∣main, or to alien Lands holden of the King in chief; or to grant liberties to any City, or such like.

Perambulatione facienda to enquire of the bounds of two Seigniories or Towns,* 1.241 ••here an encrochment by little and little ••s supposed to have been made. And this

must be by the mutual assent of both the Lords. But if such encroachment were at once, whether now or heretofore, a•• Assise of Novel Disseisin lieth, and not this writ.

CHAP. XXI. Of Plaints.

SO far of writs; it followeth to speak of Plaints and Bills: both being i•• such Courts as hold plea without original writ.

A plaint is in matters that concer•• Common Pleas.* 1.242

A plaint of Trespass brought in a Court Baron, whether Mannor, Hun∣dred, or County Court, shall not proc•••••• if the Free-hold come in question: but a Suit by writ in the County Court may. Therefore in such case upon a plaint in County Court, the party hath no remedy, but a writ of Trespass vicontiel, and thereby the Sheriff may determine the Issue, though the Free-hold come in de∣bate. But that is no remedy in other Court Barons.

CHAP. XXII. Of Bills.

A Bill is in Pleas of the Crown.* 1.243 As an appeal of Felony, Maim, Rape,* 1.244 &c. may be by Bill befo••e any one Coroner of the Shire, as well as by writ original, finding first sureties to the Sheriff.

One whose attendance is necessary in any Court,* 1.245 as the Officers and Attornies there, shall sue and be sued in form of plaint without writ original, which is cal∣led a Bill priviledge. But albeit the Cook or Butler of a Judge, or other Officer of a Court shall have their priviledge if they be sued elswhere, yet a Bill lieth not a∣gainst them; but against the Officers and Attornies it doth, for they are Members of the Court, and their Attendance ne∣cessary. And they shall be fore-judged of their Office, if being demanded to do them, they make default. But an Attorney in the King's shall not be sued by Bill; for no Attorney is there of Record, nor his presence necessary: otherwise it is in the Common Place.

CHAP. XXIII. Of a Quo warranto.

Prerogative.

* 1.246THe King hath a special means of Suit for trying of the right of Franchise u∣surped upon him, called a Quo warranto; and is to be brought before the Iustices of Oyer. Therefore here allowance of a Franchise, before them, bindeth the King. Otherwise it is upon a Suit in the Common Place.

Statutes.

* 1.24718 E. 1. A Statute of Quo warra•••••• Pleas of Quo warranto from henceforth shall be pleaded and determined in the Circuits of the Justices.

18 E. 2. Stat. of Quo warranto. A pub∣lick proclamari fac••, shall be awarded to those that claim liberties, to know by what warrant they claim them, wherein they shall have a warning of forty days. The party that claimeth liberties being before the King, it shall not be in default before any Justices of their Circuits. And being impleaded before one or two Justices, the same Justice before whom he is implead∣ed, shall save him harmless before the o∣ther.

If he come not at the day, the liber∣ties shall be taken in the King's hands in name of a distress, and when they appear, be replevied upon their demand. In which replevins they shall answer immediately.

If their Ancestors died seized, then the King shall have a summons for them to ap∣pear before the King, or his Justices of Assise; at which day if they come not, nor be assoyned before the King, and the King do tarry longer in the same Shire, such order shall be taken as in the circuits of the Justices. And if the King depart from the same Shire, they shall be ••••journed unto short days, and have reasonable de∣lays according to the discretion of the Justices, as it is used in personal Actions.

CHAP. XXIV. Of Offices for the King.

THese are the Suits that every one may ••••ve. Enquiry for the King is, when matter for the King is found by a Iury called an Enquest of Office, whether the Enquiry be by Officers themselves, as Sheriffs, Escheators, ••oroners, &c. vir∣tute officii, or virtute brevis, or Commis∣sions to them directed. And here the just number of twelve is not of necessity re∣quisite, but may be sometimns more or less.* 1.248

* 1.249An Enquiry is an office or presentment. An office which findeth matter to entitle 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 evidence.

* 1.250If such an office be found for heridita∣ments, and the King entitled by matter en fait, that is to say, by no other Record but that only; as if the office find that J. S. the Kings Tenant died seized, the par∣ty may either traverse, to say J. S. was not seized, or confess and avoid it by saying, that himself was the King's Tenant, and disseised by J.S. and so J. S. died seized, being 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 J. S. was attainted of Treason, and seized of certain Lands, there only a Petition li∣eth to the King, because this is a double matter of Record, and therefore neither can the party traverse it by denying J. S. to be so seized, nor have his monstrans de droit to shew that J. S. did disseize him, &c. or that he enfeoffed J. S. upon con∣dition, and that J. S. brake the condition before the attainder. All this is to be un∣derstood so long as the Record of the at∣tainder continueth in his force. But the party may traverse the attainder well e∣nough,* 1.251 as to say, nul ti••l attainder, i. that there is no such attainder, and upon that being found for him, he shall have the land, without being driven to his petition,

otherwise not; and the reason is, because the office entitling the King by a matter of Record, this title cannot be avoided, but by as high a matter, and not by the plea or allegation of the party; upon as high a matter of Record to avoid the office, as the office it self, a man may traverse it, though the King be intitled by double matter of record. As being found by office that J.S. was attainted of Treason by Par∣liament, and his Lands forfeit, and that he was seized of B. acre, whereby the King seizeth it. Now if another Act of Parlia∣ment restore the heir to all the Lands whereof the ancestor was seized, & adnul the ancestors attainder, his heir shall have this by way of plea, without petition.

If the office be for personal goods,* 1.252 the party may always have a traverse or plea any matter unto it, and so have his goods again, unless the escheator have accompted for them.* 1.253 And that though the offer find the King's title to be by matter of record: as that J. S. was attainted of Felony or Treason, or outlawed in Debt or Tres∣pass, and was at the time possessed of a horse, or of such and such goods, where∣in in truth the property was unto a stran∣ger; that stranger may have a Traverse. The King upon office finding for him, if his entry be lawful, and the possessions to be had at the time, is presently in possessi∣on, as in wardship or escheat of land found by office:* 1.254 but an office finding that the

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King's tenant hath ceased,* 1.255 or his Tenant for life committed waste, vesteth no pos∣session in the King, for his entry is not law∣ful, but h•• i•• driven to sue a Scire facia••. So if an office entitling the King to thing•• not manu•••• that is to say, whereof no pro∣fit is to be taken forthwith, until they fall as a Rent-common, &c. this v••steth no possession till the day. Also he shall be answered of all the mean profits from the time of his title.* 1.256 As upon an alienation in Mortmain found by office, from the time of this alienation appearing of record, up∣on the King's Letters Patents adnulled for insufficiency from the very time of the grant.

* 1.257An Escheator here may find office•• in officie, as well as virtute brevi••, or commissio∣nis. But not of Outlawry of Felony, or suck high matter of record without warrant•• paramount, and certification by writ of Record, Those virtut•• bre••••is, or commissionis are re••••nable in the Chancery. The othe•• properly in the Exchequer; but may also be returned into the Chancery.

Statutes.

36 E. 3. cap. 13. Stat. 1. No Escheator shall take Enquests of Office but indented between the Jurors and him, else they are void.

38. H. 8. ca••. 22. Se•• virtute officii only to find an office of Lands holden of the King of v l. value or above, pain. v l.

8 H. 6. c. 16. Take Enquests but of peo∣ple impannelled by the Sheriff, and those Enquests must be returned within a month after the taking. Pain 20 l. So of Commissioners.

25 H. 6. cap. 17. Take enquest virtute brevis, but within a month after delivery of the writ, his fees are set down.

1 H. 8. c. 8. Made perpetual. 3 H. 8. c. 2. Sit unless he have Lands, &c. to the clear yearly value of 40 Marks. Pain 20 l.

Delay to take the Verdict when the Jury offer it, Pain C l. So of Commissioners.

Be Escheator in three years again after that year ended.

34. E. 3. cap. 13. Stat. i. A Traverse gi∣ven to the party whose Lands are seized by office for alienation without licence, or nonage of the heir in Ward, it shall be sent to the Kings Bench to be tried.

36 E. 3. cap. 13. Stat. 1. Upon a Traverse or Monstrans de droit, the Chancellor may let him (that tendreth it) the Lands hol∣den to farm, finding surety to do no waste.

8 H. 6. cap. 16. They shall not be let to farm till the Enquests returned, nor in a month after, within which time the party grieved may have the benefit of the for∣mer Statute.

All Letters Patents within the month shall be void.

18 H 6. cap. 6. All Letters Patents made of Lands or Tenements before office found or returned shall be void.

1 H. 8. cap. 16. The party shall have three months liberty after the office returned to tender his Traverse.

2 E. 6. c. 8. Where an office is found for the King, he that hath interest for years, or by Copy in the bond, or any Rent, Com∣mon, Office, Fee, or any Profits of whatso∣ever Esta•••• out of the Land, shall have them, though they be not found in the Of∣fice in such sort as they should, if no office had been at all. When Land it found hol∣den of the King immediately, and that it should descend or come to an heir within age, which is, or ought to be in the King's Ward, that heir within age may have a Traverse.

The party grieved may have a Traverse immediately or after at his pleasure, when one is found heir, where another indeed is heir, or when one is found heir in one County, & another found heir to the same person in another County, or when one untruly is found lunatick, ideot, or dead.

The party grieved may have traverse or Monstrans de droit (and shall not be driven to petition) when it is untruly found that one attainted of Treason, Felony, or pra∣munire is seized of lands, whereunto ano∣ther hath just title of an Estate of Free∣hold.

And although the King be intitled in such lands by double matter of record.

Upon every such traverse a Scire facias shall go out as in traverses or petitions before, and the defendant therein have the same advantage that they had in a Scire facias in a petition before.

In every traverse pursued by virtue of this act where by the Common Law the party were driven to petition, two writs of search shall be granted. After judgment upon a traverse sued by virtue of this act, if it appear by matter of record that the King hath a former title, the same shall be saved unto him.

Artic. super chart. c. 19. When the Es∣cheator or Sheriff seize land into the King's hand without cause: upon ousting of the King's hands, the party shall have the mesne issues restored to him.

20 E. stat. De Escheatoribus. If the Es∣cheator by writ out of the Chancery seize Land into the King's hand, and after upon inquisition no title is for the King to have the custody; and ouster le main shall be awarded for the party out of the Chancery.

Provided, that if any thing afterwards may be found in the Chancery, Exche∣quer, or Kings Bench for the King, a Scire facias shall go our against the party. And if the King have right, it shall be answer∣ed of all the issues from the time of the Escheators first seising of the Land.

23 H. 6. c. 17. In a Scire facias upon a Traverse against any Patentee no prote∣ction allowable.* 1.258 Vpon an office found virtute officij, whereby the King is intitu∣led to ones wardship, the heir shall never have livery,* 1.259 that is to say, the Land deli∣vered out of the King's hands. But upon a perfect office virtute brevis,* 1.260 or commissio∣nis, if it be a special writ or commission, not a general one, to enquire of all wards, he may. Therefore here the heir is allowed these Commissions following, or Writs in the nature of such Commissions, viz. First for the finding of an office for the King, then for the having of the Land out of the King's hand.* 1.261 Those for the finding of an office are, 1. A Diem clausit extremum, Man∣damus, & devenerunt, to inquire what lands holden of the King, and what of other, the Ancestor was seized of the day of his death, the value, the day of his death, who is the next heir,* 1.262 and of what age.

The Diem clausit extremum is to be sued within the year after his death.

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 Inheritance cannot descend, if they offer speedily af∣ter Diem clausit extremum in the Chancery to render till the Infants age, as other will without fraud.

The Mandamus after the year.* 1.263 And here it must further be inquired who took the profits. The Devenarunt is when the Auncestor, died in ward to the King. 2. A Qua plura, Melius inquirendum, & Datum est nobis intelligi, upon defect in offices found by virtue of such writs or commissions, but these shall never go out upon an office found virtute officii.* 1.264 Quae plura upon levy∣ing out of any land in those offices.

Melius inquirendum upon any other de∣fect in the office, as if the office were in∣sufficient or uncertain,* 1.265 or the Land of greater value than is found in the office; or held by other services, or the Tenant seized of other estate.

Datum est nobis intelligi,* 1.266 upon an office ••••ding lands to be holden of any other person, when there is a record to prove that is holden of the King, but this writ shall not be upon a bare surmise.

Those for having the Land out of the King's hand are an Aetate probando,* 1.267 and a writ of Livery. Aetate probanda is to en∣quire, whether he be of full age, or not, be∣fore which time he is not to have Livery. A writ of Livery is after a perfect office;* 1.268 (for no livery shall be upon an insufficient office) finding a tenure in chief whether by Knights service or soccage;* 1.269 & whether the heir then be within age, or of full age But he that holdeth of the K. by Knights service, but not in Capite,* 1.270 shall not sue live∣ry. But because none can enter upon the

King, the heir (if he were within age) when he cometh to his full age, shall have an ouster le main, to have all the Lands de∣livered to him at once by the King,* 1.271 which is called a livery, for if this be sued, and no mention made of an Avowson, all shall be reseized, and the King answered of all the mesne issues.* 1.272 And a livery must be en∣tire, and not by parcels. The manner thereof is this, when the heir in the Kings Ward is of full age, he shall have a writ out of the Chancery to the keeper of the Privy Seal, testifying that he is of full age, and hereupon he shall have a Privy Seal to the Chamberlain of the King to receive his homage. And when he hath received his homage, he shall have a writ from the Chamberlain to the Chancellor testifying that he hath received his homage, and thereupon he shall have a writ of livery.

Statutes.

28 E. 3. c. 4. The rents given to them that sue livery when the rent-day cometh, how soon soever it come after the livery.

32 H. 8. c. 46. The Court of wards erect∣ed to be a Court of Record, Officers ap∣pointed: a Master of Wards that shall keep the Seal, an Attorney, a Receiver, two Auditors, two Clerks, a Messenger, and an Usher.

All wards with their Land, &c. shall be in the ordering of the Court.

They may sell and grant the King wards,

or their Lands during their minority, &c.

The same to pass by the King's Bill as∣signed, which shall be a sufficient warrant to the L. Chancellor for the great Seal.

They may (without the King's Bill as∣signed) make good sales of underwoods, and appoint timber for necessary repara∣tions of the ward lands, and make Leaser during their minority, &c.

Widows and the fines for their marri∣age are in the survey of this Court.

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

The grantee of the custody of wardship of any of the King's wards shall sue forth his Patent within four months: next after the assignment of his Bill, else the Bill and effect thereof to be void.

Process shall be made out of this Court against wards intruding upon their lands before livery, or ouster le main under the Great Seal.

With many other matters concerning the authority of this Court, and the offices thereof.

33 H. 8. c. 22. The office of the M. of the livery united to the Court of Wards.

A Surveyor of the liveries added and appointed to be the second Officer.

A Clerk of the liveries also added.

All liveries suing shall be in the order∣ing of this Court.

None that hath land over the clear year∣ly value of 5 l. (otherwise it is where the

Land is under that value) shall have live∣ry before inquisition or office, by the Kin•• Writ or Commission, which shall not pos•• out of the Chancery or other Court, with∣out a warrant directed to them out of the Court of Wards under their hand.

They shall set rates for liveries, and a••∣point days of payment, &c. and their Bil•• for livery shall be a sufficient warrant ••o the Lord Chancellor.

A general livery may be sued where the yearly value of the land exceeds not 20 l. but such general livery shall not be with∣out warrant from this Court. The Paten•• for livery may be sued forth within three months next after the assignment of the Bill by the King or his Court.

Two being found heirs by one and the same title,* 1.273 whether twinlings that are males, found heirs by one self-same office or divers men by several offices found heirs to the same Ancestor, and by the same title (for if one office find that the K. gave land to A. and the heirs of his body, and that B. is his cosin and heir, and ano∣ther office findeth that the gift was in ge∣neral tail, and that four daughters are his heirs, there must be a traverse and no en∣ter pleading, for they claimed not by one ancestor and title) the King shall not make livery,* 1.274 till by enterpleader the truth is discussed at his full age that was found heir first: for if A. of five years is found heir to the K. Tenant, and after by another

office B. is found his heir, and of full age, B. hath no remedy till A. come of age, and then they must enterplead. And in every enterpleading, an office must be found for both. And if one be found heir of full age, and after another within age, the enter∣pleading shall not stay till the full age of the second, because the other was found heir first. Among Coparceners,* 1.275 the King upon livery shall make partition. And that is for the King's benefit, because upon that partition every one shall have some part of the lands in chief. For if any should have for their portion only the lands hol∣den of other men, then the King should lose his prerogative in those lands for e∣ver, because they that have them when they shall die, hold no Lands of the King in Capite. And therefore in the writs of Livery there is a proviso, that every one shall have in her purpart, parcel of the Lands holden in chief.

CHAP. XXV. Of Presentments or Endict∣ments.

A Presentment is an enquiry, finding some offence against the King, which is also called an Endictment. Therefore it is as it were the King's Action, where∣upon the party shall be arreigned, or put to answer by the King: and tried by ano∣ther

Jury, which (in case of Felony or Treason) we call the Jury of Life and Death.

Every strong suspicion of such an of∣fence, though it be in case of Felony, ap∣pearing of record,* 1.276 hath the force of an in∣dictment: as in an Action of Trespass of goods carried away, if the defendant plead not guilty, and be found guilty as a felon: in an appeal of murder,* 1.277 &c. if the plaintiff after declaration be non suit. But so is not the Sheriffs return,* 1.278 as where he returneth upon one an Escape of Felony, &c.

* 1.279Without which the King can have no suit upon a wrong done, principally to ano∣ther; but done to himself he may.

For(a) 1.280 preventing of certain of those offences, that is to say, trespasses to the body and felonies, and committing them that offend to prison, till they may be indi∣cted, and so duly punished, as(b) 1.281 to arrest him that maketh an affray, and send him to the next Goal, or upon reasonable cause (as if it be night time, or there be that would rescous him, &c). keeping him in the stocks till he can safely bring him to the Goal;* 1.282 or to arrest him till he find surety by Obligation; every hundred hath his Constable; and every several tithing within the hundred hath his Borsholder. The conservator of peace in an hundred is called a Constable, or High Consta∣ble; in a Tything, a Petty Constable, Borsholder, Headborough, Thirdborough,

Borough-head, Tything-man, or chief pledg.

Statutes.

1 E. 3. cap. 16. Stat. 1. For the better keeping and maintaining of the Peace, the King will, that in every County good men lawful, which be not maintainers of ill, or Baretors in the County, shall be assigned to keep the Peace.

18 E. 3. cap. 2. Stat. 2. Two or three of the best in reputation in the Counties shall be assigned keepers of the Peace by the Kings Commission, and at what time need shall be, the same with other wise and learn∣ed in the Law shall be assigned by the Kings Commission, to hear and determine Felo∣nies and Trespasses done in the same Coun∣ties.

34 E. 3. cap. 1. In every County of En∣gland shall be assigned for the safe keeping of the Peace a Lord, and with him three or four of the most worthy men in the County with some learned in the Law, and they shall have power to distrein evil doers, rietors and barettors, and to pursue, arrest, take, and chastise them according to their trespass and offence, and to do them to be imprisoned, and duly punished according to the Law and Customs of the Realm, and according to that to them shall seem best by their discretions and good advise∣ments,

and also to inform themselves, and to enquire of all those that have been pil∣lers and robbers in the parties beyond sea, and be now come again, 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 indictment, or by su∣spition, and to put them in prison, and to take of all them that be not of good fame (wheresoever they shall be found) sufficient surety and mainprise for their good a bearing towards the King, and towards his people, and to punish the other duly, to the intent that the people be not by such Riotors trou∣bled and endamaged, nor the peace blemish∣ed, nor Merchants, nor other passing by the high ways of the Realm, disturbed, nor put in fear by the peril which might happen to them by such evil doers. And also to hear and determine at the Kings suits all manner of felonies and trespasses done in the same County, according to the Laws and Cu∣stoms aforesaid.

13 Ric. 2. cap. 7. They must be sworn to keep and put in execution all the Sta∣tutes and Ordinances touching their Offices.

2 H. 5. ca. 4. Stat. 1. The Justices of Peace must make their Sessions four times by the year, that is to say, in the first week after the feast of St. Michael, in the first week after the Epiphany: In the first week after the clause of Easter, and in the

first week after the translation of St. Thom. the Martyr (which is the 7 Julii) and more often if need be. And that the same Justices hold their Sessions throughout the whole Realm of England in the same weeks, every year from henceforth.

2 H. 8. cap. 5. Justices of Peace from hence∣forth to be made in the Counties of England, shall be made of the most sufficient persons dwelling in the same Counties, by the ad∣vice of the Chancellor, and of the Kings Council, without taking other persons dwelling in forreign Countries, to occu∣py such office, except the Lords, and the Justices now named, and to be named by the King and his Council. And except also the Kings High Stewards of the Lands and Seigniories of the Dutchy of Lancaster, in the North and South parts, for the time being.

18 H. 6. cap. 11. None shall be assigned Justice of Peace, if he have not Lands to the value of 20 l. by year. This extendeth not to Towns Corporate, Boroughs, &c. nor to persons learned in the Law.

1 Mar. cap. 8. No Sheriff shall exercise the office of a Justice of Peace by force of Commission, or otherwise, in the same Coun∣ty, during the time only that he exerciseth the office of the Sheriffwick.

Any(a) 1.283 man suspecting another of a Fe∣lony

committed, or but(b) 1.284 intended, as where one lieth in wait to rob the people that pass by, and draweth his sword upon one, willing him to deliver his purse, &c. may arrest him(c) 1.285 so as thereupon he commit him to the Gaol, as(d) 1.286 common voice and fame that he did the fact, or being present where a murder was done, and found with a sword drawn in his hand, or when a robbery was done, and found with some part of the goods, are just causes of suspici∣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 aceessary; and what is sufficient cause of suspition, and what not shall be tried by the Justices. But(a) 1.287 neither can any man arrest one for a Trespass, unless it be the Constable, nor for a Felony, except(b) 1.288 himself suspect the party (though he doth it by the command∣ment of one that doth suspect him) and that the same Felony be indeed commit∣ted.

As if it be for robbery, the self-same thing must be stoln;* 1.289 for to say, that divers Bieves were stoln, and because he suspected I. S. to have stoln six Bieves, he did arrest him, is not good, without alledging expresly that those six Bieves were stoln.

With indictments of Trespass, infor∣mation upon penal Satutes (such as in∣flict a pecuniary mulct or other penalty upon offenders) have a near affinity. Concerning which informations, these

Statutes following were made.

Statutes.

4 H. 7. cap. 20. Where a penal Statute giveth whole or part to whosoever will sue a covenous release or recovery (except it be by action) tryed upon the point of the Writ shall not prejudice him that will sue bona fide.

31 Eliz. cap. 5. All informations and indictments where the forfeiture is limited to the Queen only, must be brought within two years after the offence commited, when it is limited to the Queen, and any other that shall sue within one year, or (in default thereof) for the Queen within two years, except Statutes of Tillage. All brought af∣ter the time shall be void: where a shorter time is limited in any penal Satute, the Suit must be brought within that time.

27 Eliz. cap. 11. Information for the Queen upon Statutes of Tillage, shall be brought within five years after the action accurred unto her.

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

1 Eliz. cap. 1. Against fore-stallers, &c. must be brought into the County where the

offence was indeed done. But officers of record using to pursue the informations by vertue of their Office may do as before.

31 Eliz. cap. 5. All suits for using unlaw∣ful, or not using lawful game, not having Bows or Arrows, using any Art or Mystery wherein he hath been brought up, shall be sued and prosecuted in the general quarter Sessions of Peace, or Assizes of the same County, or in the Leet within which the offence is committed, and not out of the same County.

29 Eliz. cap. 5. The Defendant in an in∣formation in the Kings Bench, Common Pleas, or Exchequer, where he is baylable or by leave of the Court may appear by At∣torney, may the first day appear by At∣torney of that Court, without putting in bail.

31 Eliz. cap. 10. This former Statute (29 Eliz. cap. 5) shall extend only to na∣tural subjects and free denizons.

18 Eliz. cap. 5. Made perpetual.

27 Eliz. cap. 10. An Informer shall not compound or agree with the party 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 pass against him by verdict or judgment, then he shall render to the par∣ty

his Costs and Damages to be assessed by the Court.

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

Indictments of the death of a man are to be taken before the Coroners.* 1.290 So is it not of any other Felony, for the Stat. 4 E. 1. called officium Coronatoris setteth down the office of a Coroner to be so by the Common Law, and the whole order how he is to pro∣ceed in the inquiry.

Statutes.

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

33 H. 8. cap. 12. The Coroner of the Kings house shall inquire alone without the Coroner of the Shire, by a Jury of the Yeo∣men officers of the Kings officers.

CHAP. 26. Of Original Process.

HItherto of the first matter of the suit, it followeth to speak of Ori∣ginal Process.

Original process is that process which is till the Defendant do appear.

Original process is single or mixt: Single, which is by the possessions only (land or goods) or only by the person.

That by the land is of two sorts. First summons and grand cape in a praecipe quod reddat.

The Summons is a warning of the tenant in his land, but not by his goods, or by a rent-service, rent-charge, rent-seck, nor a Common which he hath, for there the land is anothers by certain summoners, two at the least. The Summons upon an action brought against one as heir,* 1.291 must be in land that did descend, otherwise it is in any land.

* 1.292If it be to recover the freehold of land it self, it must be in the same land else making default, he may at the grand cape wage his Law of non-summons. But if he ap∣pear, it makes no matter in what land he be summoned.* 1.293 A grand cape is a process to take the land into the Kings hands by the view of lawful men, called thereupon Veyors, as the other are Parnors, with a summons of the Tenant to answer(a) 1.294 as well to his default, as to the deman∣dants action, and therefore it is called a grand Cape. Therefore here the Tenant is suffered to save his default as to say, that he was not summoned according to the Law of the Land, and thereof is ready to do his law, or that he was in prison, or disturbed by water, &c.

* 1.295And the King shall have the land to his

own use, the Sheriff being accountable of the issues thereof from the default, till judg∣ment for the Demandant.

Statutes.

13 Eliz. cap. 3. Upon a Summons in a real action fourteen days before the return, a Proclamation of the Summons shall be on a Sunday immediately after Divine Service, at the door of the Parish Church where the land lieth, and returned with the names of the Summoners. And till that done, no Grand cape shall go out, but an alias & plu∣ries as the case requireth.

If the Tenant be returned summoned,* 1.296 where indeed he was not, the Writ shall abate.

Secondly, it is summons and re-sum∣mons, or other like summons in a mort∣dancestor, Juris utrum, and an assize of Darrein presentment.

By the goods, as in assises of novel dis∣seisin and nusance, where the original pro∣cess is a Pone per vadios & salvos plegios. A Pone per vadios & salvos plegios ia a pro∣cess to attach the Defendant by certain of his(a) 1.297 proper goods not borrowed, or in pledge unto him, being meer personal chattels, neither a(b) 1.298 chattel real, as a ward, &c. nor(c) 1.299 parcel of his free-hold as a clod of earth, &c. which he shall(d) 1.300 for∣feit if he appear not.(e) 1.301 And the Sheriff may take those goods with him, or leave them with the party at his pleasure. But

whithersoever he do, the property is ••redge•• out of the party till he make default.

The original process by the person ••redge•• a Capias (which is process to impris••redge•• him) then an exigent or solemn(a) 1.302 dema••redge•• at five several County Courts immed••redge••¦ately following one another: Theref••redge••(b) 1.303 no Allocato comitatu lieth if a Court ••redge•• holden after an exigent returned, and ••redge•• not appearing, judgment to be out of t••redge•• protection of the King and his Laws, whi••redge•• we call outlawry. The judgment where∣of is to be given by the Coroner in t••redge•• fifth County. For(c) 1.304 at the Commo••redge•• Law there is no Outlawry, but where th••redge•• Writ is vi & armis, as in Trespass, Conspi¦racy, Felony, &c. And the reason why it ••redge••¦eth there, is, because they are acts founde••redge•• upon the sole tort of the Defendant. A••redge•• this is in main Felony and Treason.

Statutes.

1 H. 5. c. 5. In every original Writ ••redge•• actions, personals, appeals, and indictmen••redge•• in which the Exigent shall be awarded: ••redge•• the names of the Defendants in such Wri••redge•• original appeals and indictments, addi••redge••¦ons shall be made of their estate and degre or mystery, and the Towns, Hamlets a••redge•• places, and the Counties whereof they we••redge•• or be, in which they were or be conversa••redge•• Otherwise all Outlawries thereupon pr••redge••∣nounced shall be none. And before the••redge••

outlawries pronounced, the said Writs and Indictments shall be abated by the excep∣tion of the party omitting the said additi∣ons.

6 H. 6. c. 1. All Exigends and outlawries upon Indictments in the Kings Bench of Fe∣lony and Treason shall be void, if before the Exigend, awarded, a Capias be not directed to the Sheriff of the County whereof they be named in the indictment, having six weeks space (or longer, by the discretion of the Justices) before the return.

8 H. 6. c. 10. In every indictment or ap∣peal of treason, felony, or trespass, after the first Capias returned; forthwith (before an Exigend) another Capias shall be awarded to the Sheriff of the County where the in∣dictment is supposed to abide retornable before the same Justices, &c. containing the space of three moneths (where the Coun∣ties be holden from moneth to moneth) of four moneths (where they be holden from six weeks to six weeks) by which Capias the Sheriff shall be commanded to take his body if it be found in his Bailiwick, if it be not found, then to make proclamation (for his appearance) in two Counties before the return of the Writ. Any exigend or out∣lawry otherwise pronounced shall be holden for none.

10 H. 6. c. 6. The like is to be observed

when any such indictment or appeal tak••redge•• before Justices of peace, or other ha••redge•• power, shall be removed before the K••redge•• in his Bench, or elsewhere by Certiorari ••redge•• otherwise.

6 H. 8. cap. 4. Upon every exige••t ••redge•• writ to make three Proclamations (return••redge••¦ble day of the return of the exigent, and th••redge•• proclamations to be made, two in the ••redge•• County Court, the third at the gene••redge•• Sessions) shall go out to the Sheriff of eve••redge•• other County (viz. than that where th••redge•• action is brought) where the Defendant i••redge•• named to be, or late to have been, if th••redge•• Kings Writ run there: otherwise to th••redge•• County next adjoyning to that where he i••redge•• so named. Being named late of Londer••redge•• Middlesex, the Writ of Proclamation sh••redge•• go out to every other County, where he ••redge•• abiding, time of the exigent awarded. Eve••redge•• outlawry to the contrary shall be avoide••redge•• by plea.

27 E. 3. cap. 2. A writ of Idemptit••redge•• nominis given to those whose lands, good or chattels be seised by any officer, su••∣sing them to be outlawed (where they ••redge•• not) because they bear such names as the••redge•• that be oulawed, for default of good d••redge••¦claration of the surname.

9 H. 6. cap. 4. Such an Idemptitate no••∣nis given to their Executors.

If the Exigent be returned not fully served without any folly in the Plain∣tiff, as(a) 1.305 where the Defendant after de∣mand at two Counties rendreth himself in Court, and upon mainprise found, hath a Supersedeas, and yet appears not at the day. But otherwise it is upon a(b) 1.306 Supersedeas by another person bearing the same name, or in case where no(c) 1.307 more Counties but four can be holden between the delivery of the Writ to the Sheriff, and the return, for it is the Plaintiffs own folly in the first case to put no difference between their names, and in the second to take so short a time. Though it be in the(d) 1.308 hustings of London which are holden uncertainly, the Plaintff bring∣ing a new exigent which we call an Exigent de novo(e) 1.309 before any other County hol∣den, but else not, shall have the benefit of the former Counties. And therefore it is called an exigent allocato Comitatu, or allo∣cat•• hustingo, if it be in London, where their hustings are as the County Courts.

Outlawry disableth him from suing any action.* 1.310

Statutes.

5 E. 3. cap. 12. In case where the Plain∣tiff hath recovered damages, and he against whom the damages be recovered, is outlaw∣ed at the K. suit, no charter of pardon shall be granted, except the Plaintiff be satisfied for his damages. When one is outlawed by

process no such Charter shall be gra••••∣ed, except he yield himself before the Justices from whom the exigend issued, wh•• shall cause the party to be warned to ap∣pear before them at a day. Whereupon ••redge•• the Plaintiff appear, they shall plead up•••• the first original, as if no outlawry ha•• been. If the Plaintiff appear not (and the warning be duly witnessed) he that is o••∣lawed shall be delivered by virtue of h•••• Charter.

31 Eliz. cap. 3. Upon every extent i•• a personal action a writ of Proclamatio•• shall go out of the same Court to the Sherif•• of the County, where the Defendant at the time of the Exigend shall be dwelli••••▪ Whereupon three Proclamations shall b•• made; one in open County Court, anothe••redge•• at the quarter Sessions, the third one mo••redge•• at the least before the Quint' exact at the door of the Parish Church where the Defen∣dant shall be dwelling at the time of the ••redge••∣gent, upon a Sunday immediately after d••redge••∣vine Service. All outlawries otherwise st••redge•• be void.

But before reversing of any such out••••••∣ry in this respect, the Defendant shall p••redge•• in bail, not only to answer the Plaintiff ••redge•• a new action, but to satisfie the condem••∣tion, if the Plaintiff begin his suit withi••redge•• two Terms.

Prerogative.

By outlawry all his chattels, whether Real as a(a) 1.311 term for years (and therefore there the King may seize the Land it self, and plow and sow, and occupy it as the ter∣••or might) wardship, &c. or personal, as ones(c) 1.312 goods (the property whereof is pre∣sently in the King, and he may have a de∣tinue against every man that hath a possessi∣on of them) profits(d) 1.313 of land, wherein he hath a Free-hold or inheritance, viz. Bents, Corn, manurance of his Pasture (yet in this case he cannot, &c. seise the land it self, nor occupy, plow, or sow it, or grant it away. And if the party so out-lawed make a feoffment, this feoffment is good, and the King after that shall have the profits no more.) But not(a) 1.314 a fornace, table fixed upon the land with posts, boards, doors, windows, and such like annexed to a Free-hold are forfeit to the King, not only those in possession, but even such as he hath a right unto, as debts, (viz.(b) 1.315 due by spe∣ciality, but not(c) 1.316 by a simple contract, for the reason supra fol.) matters in(d) 1.317 account(e) 1.318 goods taken away, &c. But not damages which he is to recover, as by reason of(f) 1.319 trespass done to his land(g) 1.320 battery, false imprisonment, or such like.

In case of mayme there must be three Capias, two in felony, as stelth, robbery and burglary, one duly in the death of a man, be it murder or man-slaughter, and high Treason.

Statutes.

25 E. 3. cap. 14. The second Capias in ••••e of Felony must be returned three weeks a••∣ter.* 1.321 In case of Felony and high Treas•••• they that tarry the Exigent, though the•• they render themselves, forfeit their ch••∣tels.

Mixt, is that which is to say by h•• goods,* 1.322 as for want of goods he may reso•• to his person. As first in all Praecipe q••redge•• faciat, and other personal praecipes, and ••redge•• personal Si fecerit te securums,* 1.323 not being a∣gainst the Peace, or likewise in all Justice or vicontiel writs, the process is a Su••∣mons by the Defendants goods, an a••∣tachment or Pone per vadios and distr••redge•• infinite: Or if upon the Summons a ••redge••¦hil be returned,* 1.324 that is to say, that the p••redge••¦ty hath nothing whereof to be summo••¦od, then a continual Capias.

Distress infinite is a process to distri••redge•• him continually after, till he do app••redge•• by certain of his goods, and profit of ••redge•• lands, or as we use to say, issues, which ••redge•• loseth if he appear not.

Statutes.

Westm. 2. cap. 37. No distress shall ••redge•• but by Bailiffs sworn and known.

Westm. 2. cap. 39. the Plaintiff may a∣ver that the Sheriff might have returned greater issues, and thereupon shall have a Judicial Writ to the Justice of assise to en∣quire of what and how great issues he might have answered from the day of the purchase of the writ to the day of the return, and the Sheriff shall be charged of the surplusage not returned.

1 E. 3. cap. 5. The like averment of two small issues returned given against the Bayliffs of Franchises, as well as the Sheriff.

Vpon this distress must be returned in issues the value of all his lands from the Test of the writ untill the day of the re∣turn.* 1.325 As if his land be worth 12 C. l. by the year, and a months space between the Teste and the return a C. l. issues must be re∣turned upon him.

And with these issues whether in this case, or in any other case of a distress infi∣nite, as after a venire facias to return Jurors &c. the land is chargeable into whose hand soever it come after.* 1.326 As if issues be returned upon Tenant in Tail, Tenant for life, or a man seised in the right of his wife, the land shall be charged after their death:* 1.327 or if an Abbot lose his issues, and after be transla∣ted and made a Bishop, the successor during his life shall be charged. And in this respect because the land is charged,* 1.328 the beasts of a∣ny stranger coming upon the same land may be distrained for the issues lost.

In such process as these where an at∣tachment or distress should go out, if the defendant be a beneficed Clerk he must be warned by his person, or land if he have any lay fee else, as if the Sheriff re∣turn quod est Clericus Beneficatus non habens laicum feodum. Process shall go out to the ordinary, to make him appear by the is∣sues of his benefice, which is called a venire facias Clericum.

* 1.329A Capias lieth not here against a Peet of the Realm. But against a Knight it ly∣eth, for a man may be a Knight that hath no free-hold: So cannot an Earl or Lord by common intendment. But if he have no∣thing in the County where he is sued, the party shall have an Elegit sure estatum in such a County where he hath assets.

* 1.330In a replev. the County Court, be it by writ or plaint, if the goods be conveyed a∣way, so as at the Tenants suit they can∣not be restored. As if he that took then drive them to a Fortlet or Castle, or out of the County, &c. whereby the Sheriff return upon the pluries that they are essoyned, pro∣cess of withernam lyeth, which is for the plaintiff to have of the others goods till restitution of his own.

Statutes.

Westm. 1. cap. 17. The Sheriff or Bay∣liff may take the power of his County or Bayliwick, and beat down a Castle or Fo••••

where such beasts are enclosed, if he that took them will not make deliverance.

Secondly in Trespasses upon the case against the Peace and in all other Tres∣passes, whether it be a writ of Deceit or Trespass vi, or though it be a Writ from the King himself upon a contempt or breach of the Peace, as refusing to come at the King, being sent unto him with money to aid him in his War, and spoyling and wa∣sting mens lands, goods, and chattels, and other unlawful acts doing, and so every contempt it is attachment: And if a Capi∣as in these cases go out first, and the party be taken thereby, he shall be dismissed, be∣cause it should be by pledges, distress infi∣nite, and upon a Nihil returned, a Capias, as before.

Here for contempts a Capias lieth a∣gainst Peers of the Realm, as for rescu∣ing of one arrested by the course of the Law, &c. And that is in respect of their di∣sturbance of the Law.

In actions of Trespass, with force, whether a common action or indictment of trespass, appeal of battery, or such like, af∣ter the attachment returned nihil, it is three Capias, viz. a capias alias and pluries, and then process of outlawry.

Statutes.

Westm. 2. cap. 11. Process of outlawry given in an action of account.

25 E. 3. cap. 17. Such process shall be made in a writ of debt and detinue of chat∣tels, and taking of beasts by writ of Capias, and by process of Exigend by the Sheriff, as is now used in a writ of accompt.

7 H. 5. cap. 1. In writs to be purchased against those that forge or make untrue Charters or Minuments, and them proclaim or cause to be read, like process shall be made by capias and exigend, as in Writs of Trespass.

19 H. 7. cap. 9. Like process given in actions upon the case sued in the Kings Bench, and Common Pleas, as in actions of Trespass and Debt.

23 H. 8. cap. 14. Like process given in every Writ of anuity as in an action of Debt.

CHAP. 27. Of Counts.

THus far of the beginning of a sute The proceeding hath two parts, Count and Pleading (which two are but one in Pleading) or other mean acts.

* 1.331A condition (annexed to an estate of free-hold) cannot be alledged in Count or pleading unless it be by deed: Be it in

personal or real actions.* 1.332 But a condition knit to a lease for years, or grant of a ward∣ship, or other chattel Real may. Yet the Ju∣ry upon the general issue (as nul tort nul dis∣seisin in an assise) may find it if they will. And thereby the party shall have advantage of it.

Count is a larger declaration for the time, place, quantity of the land, and other such things of the substance of the original writ. And therefore in a Formedon of four Acres and Count but of one,* 1.333 all the Writ shall abate, for it is not pursued. In an ap∣peal of murder, he cannot declare that the Defendant traiterously killed him as he was going to succour the King in his Wars with twenty men in his company, &c. for the Writ supposeth no Treason.

Statutes.

36 E. 3. cap. 15. Declarations shall be good enough if they have matter of sub∣stance, though the terms be not apt.

In real actions which are in the right (but not in meer possessory ones) the De∣mandant must alledg the taking of the profits, we call it esplees, in the Declaration. As in pleas of Land, the taking of the profits of the land as errable, meadow, and pa∣sture, &c. if of a pond, then by taking the fish there, as Breams, &c. In a writ of right of advowson,* 1.334 the esplees shall be laid in his Clerks taking the great and small tythes.

In an assise of an office as of a filizary, &c. seisin shall be alledged by the taking of 4d. for making out a capias,* 1.335 or such like. In a quod permittat, by the taking of com∣mon by the mouth of his beasts. In a native habendo, esplees shall be alledged in the vil∣lein, viz. in taxing him high and low at his pleasure, in making his profit of him, to drive his Cattle,* 1.336 to carry away his dung, and to do all other kind of villein service, &c. But in a Writ of Escheat, in a Writ of right sur disclaimer, and such like, which are founded upon the seigniory, and not up∣on any seisin of the land it self, no esplees shall be alledged. And these esplees where they are to be alledged, must be alledged in himself, if the action be brought of his own 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 shall be alledged only in the donee.* 1.337 In a forme∣don en remainder for an estate tail, only in the particular Tenant to prove the estate tail executed. In a formedon en reverter, they must be alledged both in the Donor and the Donee, for there a fee simple is de∣manded. In a lease for life the remainder in tail, and the lessee for life, and he in the re∣mainder in tail die, the issue in tail shall have formedon en descender, and make no mention of the Tenant for life. And therefore the esplees shall be only alledg∣ged

in tenant in Tail, otherwise it is in the like case of a reversion in tail granted.

Instead of Count, a plaint shall be made in ass••ses of novel disseisin, and in writs of dower a demand.

CHAP. 28. Of Pleading.

PLeading is the parties debating of the suit.

Every plea, as Barre, Replication, Re∣joynder, Sur-rejoynder, &c. must be offered to be proved true. By saying in the plea,* 1.338 Et hoc patro natus est verificare, which we call an averment. But no averment need to be in avowry, for it is in lieu of a Count and Declaration. And the avowant is in a manner actor and Plaintiff, and to have a return.

An advantage of a matter which can∣not be pleaded, shall be saved by protesting not acknowledgeng it to be true, although matter pleaded pass against him.* 1.339 As if an infant bring an action of waste against his guardian, and appear by Attorney (which none should do but one of full age) if the guardian take his nonage by protestation, be∣cause he cannot plead it, it shall save him from all mischief. But in detinue brought by the Executor of A. the Defendant cannot take by protestation,* 1.340 that A. made not the

Plaintiff his Executor, for that is the very ground of the sute, and may be denied by answer, and issue joyned upon it. And a pro∣testation is but a saving to the party that taketh it, from being concluded of some matter alledged against him, whereupon he cannot joyn issue.

Pleas are either of the defendant when he is first brought in to answer, or the mutual pleas of both. In a joynt action against two or more: as in(a) 1.341 an action of debt. But otherwise it is a writ of(b) 1.342 con∣spiracy against two, for they are several wrongs, one of them appearing shall not answer. But must have idem dies till the other come in to answer, or(c) 1.343 the sute be finished against him. As by death or outlawry in a personal action, debt, accompt, or such like.

An action by, or against an Infant as heir▪ as(d) 1.344 a formedon en descender brought by him, or a writ of(e) 1.345 error against him where his ancestor recovered; but(f) 1.346 not where he cometh in of his own wrong, shall not proceed till his full age unless it be apparant that by proceeding he cannot be prejudiced. As in(g) 1.347 a formedon en descen∣der by an infant, if the Tenant plead a warranty with assets against him, the par∣rol shall demur, for if he traverse the assets, he should acknowledge the deed of war∣ranty. But(h) 1.348 if the Tenant plead a recove∣ry in avoidance of the estate tail, the parol shall not demur; for there the Court shall

plead for him. But(i) 1.349 it shall not demur in a writ of entry sur desseisin by an infant, though the Tenant plead a matter en fait, as a Feoffment with warranty by the An∣cestor of the Infant, for there the Infant claimeth of his own possession. And if an Infant and his Ancestor be Joynt-tenants in Fee,* 1.350 and the Infant surviveth in a praecipe quod reddat against the Infant he shall not have his age.

Statutes.

Westm. 2. cap. 40. The Husbands heir called to warranty by the alience by a Cui in vita shall not have his age.

Glocest. cap. 2. An Infant holden out of his heritage after the death of his Father, cousin, Grandfather, or great Grandfather, in an action thereupon shall not have his age.

Westm. 1. cap. 46. In a writ of entry by the heir of the disseisee, the sute shall not stay for his nonage, no more shall it for the nonage of the heir of the desseisor, if the dis∣seisee bring his assise, and before the assise pass the disseisor die. The like incorporati∣ons where the Lands go by succession. But in a writ of dower an Infant heir shall not have his age,* 1.351 (a) 1.352 nor the heir of the vouchee, in a Quod ei deforceat upon a reco∣very in a writ of dower, for it is in the na∣ture of the first Writ.

CHAP. 29. Of Pleas to the Jurisdiction and Person.

THe Defendants first pleas are dilatory, or to the action.

Dilatory, which are before any plea in bar.

* 1.353When an action is brought against many, they must joyn in the plea if they plead these dilatories, for in a praecipe quod reddat one cannot demand the view, and the other pray in aid, nor one pray in aid of one man, and the other of another man.

Dilatory pleas are exceptions, or foreign Advantages.

Exceptions are such dilatories ground∣ed upon the matter it self of the sute. And are in dishability or abatement. Those in dishability, are to the Iurisdi∣ction or Person.* 1.354 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.

* 1.355To the person, when it is alledged that the Plaintiff ought not to be answered, as if he be out-lawed, excommunicated, &c.

In which latter case the suit shall be put without day, only till he be absol∣ved.

CHAP. 30. Of Pleas in Abatement.

THose in abatem. are for any fault in the first matter of the sute, for which cause the Defendant may have oyer of any thing tendred by the Plain∣tiff, and not being parcel of the record, as of the Writ, Condition, &c.

Pleas in abatement are to the Count first, and then to the Writ, for after plead∣ing to the(a) 1.356 Count or to the(b) 1.357 plaint in an assise, a man may plead unto the Writ, but(c) 1.358 not to the Count after Plea to the Writ, but(d) 1.359 to the matter of the Count he may.

And among pleas to the writ, excep∣tions that arise upon the view of the writ are to be pleaded before those that are fo∣rein, or dehors the writ as non tenure, seve∣ral tenancy, &c.

Pleas to the Count are for insufficiency, variance from the Writ, &c.

Pleas to the writ are for default of form, false Latin, &c.

By waging of Law of non summons in a praecipe quod reddat, the writ shall abate.* 1.360

In assises of novel disseisin and nu∣sance, in appeals of felony and Juris utrum the defendant may have many pleas, two three, or more in abatement. As that there is no such Town, Hamlet, or place known

by the name, &c. and if that be not found, then that no Tenant of the free-hold is na∣med in the Writ, &c. So in an appeal of Fe∣lony, whether the same matters he of seve∣ral natures (that is to say) one tryable by Record, the other by the Countrey, as that the appeal was purchased hanging another, and also that there is no such Town, nor Hamlet, nor place known out of the Town and Hamlet as C. whence the Defendant is supposed: or all of one nature triable by the Countrey, as that his name is Willia••, where he is named in the appeal John,* 1.361 and also that there is no such Town, &c. or that the party whom he is supposed by the appeal to kill, was dead such a day, which was two years before the appeal com¦menced. Or that the Plaintiff is a Bastard, or being a woman which bringeth an ap∣peal of the death of her Husband, that they were never accoupled in lawful Ma∣trimony.

The writ abating for some cause that cannot be imputed to the Plaintiffs folly. as for(a) 1.362 false Latine, non(b) 1.363 summons of the Sheriff(c) 1.364 Joyntenancy, and such like; but not for non(d) 1.365 tenure, or(e) 1.366 na∣ming one an Esquire when he is a Knight, himself bringing another with speed in the same Court against the same party, we call it a writ purchased by Journeys ac∣compts, shall have all advantages of the former, for he shall recover(f) 1.367 costs for the first sute: the(g) 1.368 defendant being executor

shall be charged with the assets which he had day of the first Writ,(a) 1.369 Being Tenant day of the first Writ, he shall not plead non tenure, being(b) 1.370 sole Tenant then he shall not plead Joyntenancy, be∣ing(c) 1.371 Joynt-tenant, then he shall not plead several Tenancy. But no Writ by Journeys accounts lyeth by, or against any other than the self-same parties, and in the same Court that the former was: for(d) 1.372 if the Plaintiff in a several action die, his Ex∣ecutors cannot have an Action by Journeys accounts. And(e) 1.373 if two coparceners bring a formedon, and one dyeth, the other as heir to her father may have a Writ of all by Journeys accounts. But as heir to her sister of her part she cannot. So if(f) 1.374 the Te∣nant in the praecipe die upon a Writ of dow∣er brought, or such like, no writ lieth by journeys accounts. But(g) 1.375 upon the death of one of the Joynt-tenants in a praecipe quod reddat, where the other hath all by survivor it doth: Lastly, if an assise of fresh force be abated in the Franchise, a new assise by Journeys accounts, cannot be in the Guild∣hall before the Justices of assise.

CHAP. 31. Of Oyer of the Writ or Bond, &c. view or prayer, voucher, garnish∣ment, Interpleader to the Writ and Sanctuary.

* 1.376FOreign advantages are delaies with∣out exception to any thing. As in all actions Oyer of the Writ, &c. In 〈◊〉〈◊〉 actions, view, aid, prayer, and voucher.

View is in real actions of the thing de¦manded, or of the land whence it come•••• when it is so necessary, as without vic•• the Defendant cannot well answer.

Statutes.

West. 2. cap. 48. From henceforth vi•••• shall not be granted, but in case where t•• view is necessary, as if one lose land by d••∣fault, and he that loseth, moveth a Writ ••redge•• demand the same Land. And in case whe••redge•• one by an exception dilatory abateth ••redge•• writ after the view, as by non tenure or mis∣naming of the Town, or such like, if he purchase another Writ in this case, and ••redge•• the case before mentioned, from hencefort•• the view shall not be granted if he had vie•• in the first Writs. In a Writ of Dower where the demand is of the Land that the Husba••••

alienated to the Tenant or his Ancestors, where the Tenant ought not to be ignorant what Land the Husband did alien unto him, or his Ancestors; though the Husband died not seised, yet from henceforth view shall not be granted. In a Writ of Entry also that is abated, because the Demandant misnamed the Entry; if he purchase another Writ of Entry, if the Tenant had view in the first Writ, he shall not have it in the second. In all Writs also where Lands be demanded by reason of a Lease made by the Demand∣ant or his Ancestor, as that which he leased to him, being within age, not whole of mind, being in prison, and such like, view shall not be granted hereafter: but if the demise was made to his Ancestor, the view shall not lie as it hath done before.

Stat. De visu terre & essoyne de servitio Domini Regis: View shall not be granted in a Writ of Ward, in a Writ of Customs and Services, in a Writ of Advowson of a Church (but not in case where there be no more Churches than one in a Town, and all of one Saint) in a Writ of Dower, and in a Writ of Nuper obiit.

Ayd Prayer is for Tenant for life,* 1.377 to request him that hath the inheritance, to help him plead. And therefore here the te∣nant himself remaineth always party, and is never out of Court: And this Aid Prayer is for the feebleness of his estate.

So must an incumbent, the Patt•••• and Ordinary. Else no recovery agai•••••• him bindeth the successor or them. And the is in respect of their interest to the Church the Patron to present, and to have an Indi∣cavit of the Tythes: the Ordinary to ad•••• and to present by Lapse. But upon Aid pray∣er it doth, though they make default, and fess the action.

Statutes.

Westm. 2. cap. 3. He that is in the re∣version shall be received in default of the Tenant for life. If judgment be given by reddition, or default, he in the revers•••• shall have a writ of Entry after the death o•• the Termor: so shall the heir where the Te∣nant was Tenant in Tail.

20 E. 1. De Defensionis Juris, he in the re∣version desiring to be received before judg∣ment, shall find Surety▪ (as the Court sh••redge•• allow) to answer the value of the issues ••redge•• the Tenants from the day of the receipt, t••redge•• Judgment, if it pass for the Demandant.

13 R. 2. cap. 17. The like receipt sha••redge•• be for him in the reversion upon the fa••redge•• pleading of such a Tenant, and he s••••redge•• plead in chief without delay. And th••redge•• Judges by discretion shall give days ••redge•• grace between the Demandant and hi••redge•• that is received, without giving the co••∣mon

day in a plea of Land, unless it be by the Demandants assent. Surety of the issue shall be found (as before (20 E. 1.) as well where the receipt is counterpleaded, as where it is granted.

Glocest. cap. 11. Tenant for years shall be received before Judgment rendred, to say that the action was by covin.

Westm. 2. c. 3. Receipt is given to the wife in her husband, if he lose her land by default,* 1.378 and the Tenant that recovered a∣gainst her husband must maintain his own right.

Voucher is the calling of one that should warrant in to answer the Action. Therefore upon the vouchees entring into warranty, the Tenant is out of Court. And notwithstanding a recovery in a Warrantia Chartae, yet if he be afterwards impleaded in an action where voucher lyeth, he must vouch him against whom the recovery was, else he shall have no benefit of that recovery

Statutes.

Westm. 1. c. 39. In Mortdancestor nu∣per obiit, intrusion, or other such like Writs in which land is demanded which should defend, covert, remain, or escheat, after the death of any Ancestor or otherwise, if the Tenant vouch, it's 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, unless the vouchee be ready, who if he vouch over, the Deman∣dant shall have his counter-plea.

Also in a Writ of Entry in the degrees none shall vouch out of the line. Also in Writs of Right or of possession (as before) that is a good counter-plea, that the vouchee nor his Ancestor had never seisin of the land or any thing in the services 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 he might a Feoffment make unless the vou∣chee be present, who if he vouch over, the Demandant shall have his Counter-plea. But warranty of Charters lies in these cases.

20 E. 1. Stat. de vocat. ad warrant. This Counter-plea of voucher that the vou∣chee nor his Ancestors had never any thing, so as he could a Feoffment make with war∣ranty shall be received, although the vou∣chee be ready to enter into warranty.

14 E. 3. cap. 18. If the Tenant vouch a dead man, the Demandant may aver he is dead, or there is none such.

* 1.379West. 2. cap. 6. If the vouchee counter-plead the warranty, and it be found against him, he shall lose the land. Where the vou∣chee losing the Tenant shall recover in

value against him any hereditaments that he had at the time of the voucher. And therefore a voucher is in liew of an action where the original process is Somons ad war∣rantizandum or(a) 1.380 if one be vouched with∣in age a Somons ad habendum visum first: and being awarded of full age, then a Somons ad warrantizandum, if he be awarded within age the parol shall demur and a Grande Cape ad valentiam. If the summons ad war∣tantizandum or habendum visum, alias,* 1.381 and pluries, be not served, then a sequatur sub suo periculo is to go forth. And if the Tenant cannot get that served, he loseth his war∣ranty. Therefore it is sub periculo of the Tenant.* 1.382 And if upon vouching of an heir the Sequatur sub suo periculo be returned nihil in the land by descent, but that he was sum∣moned in land that he had purchased, the Tenant loseth his Warranty, for the sum∣mons must be in lands descended. But if the Sequatur sub suo periculo,* 1.383 or the Cape ad valen∣tiam be returned served, there the Tenant shall recover in value.

But in exchanges the hereditaments are liable from the very time of the Ex∣change.

In partition among coparceners, from the death of their Ancestor. So as the wives dower whom he taketh before any voucher by reason of such an(a) 1.384 exchange, or whom a(b) 1.385 co-parcener in gavel kind marrieth at any time, shall be defeated upon a reco∣very in value, or proraetae, for so is the reco∣very

in value called in the case of Coparce∣ners.

Prerogative.

* 1.386The King shall not be vouched, but prayed in aid, of which in that case hath the force of a voucher. As if the King by his Letters Patents give Lands to one by this word (Dedi) the Patentee shall have aid of him,* 1.387 because by the same word he might vouch a common person. And when one prayeth in aid of the King in liew of a voucher, the special cause must be entred, else he shall never have in value by Petiti∣on.

So of Coparceners.

And if two Parceners make partition, one alienateth part of her purparty,* 1.388 the other is impleaded and prayeth in aid of her Co∣parcener, and they lose. In this case she shall recover according to the rate of the moiety which she lost, whether the other ali∣enated before aid, prayer, or after.

* 1.389In an assize of novel disseisin and nu∣sance, voucher lyeth not, unless the vou∣chee be present in Court, and will by and by enter into Warranty.

He that is impleaded in any action wherein he may vouch and doth not, shall never have the benefit of a Warrant-Chart.

Advantages in certain personal acti∣ons are Garnishment and Enterpleader. Garnishment is upon a Writ of Detinue,

when being alledged by the Defendant to have been upon a bailment by the Plain∣tiff, and another, or for another upon con∣dition. As that if I. S. do such a thing the goods shall be delivered to him (for though the Plaintiff sole delivered the goods,* 1.390 and I. S. were a stranger, yet I. S. is to have ad∣vantage of the condition, and may have a writ of detinue) if not, then re-delivered to the Plaint. that other shall be brought in to shew whether by reason of that bailment which the Defendant so alledgeth both for the(a) 1.391 place,(b) 1.392 condition,(c) 1.393 and mat∣ter of the bailment, viz. who bailed it, &c. from which the Garnishee cannot vary how∣soever it agree or disagree with the Plain∣tiffs declaration, himself or the Plaintiff ought to have them, for garnishment is but to know whether the condition, &c. alledged by the Defendant were performed or not. And if they were delivered upon o∣ther condition than the Defendant alledg∣eth, the garnishee is at no mischief but the Defendant: for the garnishee may recover them by a writ of detinue, and the Defen∣dant by his false plea, maketh himself chargeable both to the Plaintiff and to the ganishee. But if the Defendant affirm not any certain bailment for place, condition, matter,* 1.394 &c. as if the Plaintiff declare of a bailment upon certain conditions, &c. and shew which, and that he hath perform∣ed them, and the Defendant pray garnish∣ment generally: there the garnishee may

vary from the bailment alledged by the Plaintiff, for the Defendant hath not affirm∣ed the same.

Interpleader is when divers bringing several writs of(a) 1.395 detinue, ward,(b) 1.396 or Quare(c) 1.397 Impedit against the same person in the same County, and for the same thing, though(d) 1.398 they vary in time and place of delivery (for the place is not ma∣terial being all in one County) so as they va∣ry not in the substance of their declaration, as for to declare of a chest sealed, without alledging any deed in certain: and the other to alledge a deed in certain. They(e) 1.399 all shall interplead together, as much to say, the rest shall answer him that brought the first writ,* 1.400 and therefore shall have the same day given them, if the writs be returnable at several days. And the reason of enter∣pleading in detinue is, because otherwise if one recover against the Defendant, yet the others action is not abated, but continueth still. Otherwise it is in a real action as in a Formedon praecipe quod reddat.

Prerogative.

The King may appoint any place h•• thinketh good to be a safeguard for all of∣fenders flying thither, that they shall not be molested or compelled to answer, whe∣ther one fly thither for(a) 1.401 treason,(b) 1.402 mur∣der, theft, or other crime, for which he should lose life or member. And therefore this ta∣king

effect by the Kings grant only (for touching the Kings Prerogative so nigh it cannot(d) 1.403 be by prescription) and being an immunity to one that offendeth the King and his Crown, is a(e) 1.404 temporal matter pertaining to the temporal Coertion and Ju∣risdiction, and need no consecration. But yet when it is consecrated by the Popes un∣holy Ceremonies, it obtaineth the name of Sanctuary.

Statutes.

Taking of Sanctuary away.

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

28 H. 8. cap. 7. In Petty Treason.

27 H. 8. cap. 4. and 28 H. 8. cap. 15. In Treasons, Felonies, Robberies, and Con∣sederacies, in or upon the Sea, or other Ha∣ven, River, Creek, or place where the Ad∣miral hath or pretendeth Jurisdiction.

32 H. 8. cap. 4. In wilful Murder, Rape, Robbery, in or near the high way, or in any house, putting any person within in fear of his life, Felonies, burning of houses or barns with Corn, robberies of Churches, Chap∣pels, or hallowed places, and all procurors, and abettors, and all offences where San∣ctuary lieth not by the Law, or is taken a∣way by any former Statute.

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

of treason Man-slaughter within any of the places or houses of the King, or his heirs, or where the King in person is abiding. So in stealing, or in feloniously carrying away any Plate, Jewel, or other goods of the King or his successors, above 12 d. value.

32 H. 8. c. 1. made perpetual, 23 H. 8. c. 3. 1. E. 6. c. 12. In Murder or Poyson∣ing of malice prepensed, breaking of any house by day or night, any person being in it and put in fear thereby, robbing in or nigh the high-way, felonious stealing of Hor∣ses, Geldings or Mares, or stealing goods out of any Church or Chappel. But in all other cases of Felony 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 Coyn of the Realm, or cur∣rant in the Realm, the Queens sign manual, privy Signet, or privy Seal, and all procu∣ring and abetting.

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

27 H. 8. cap. 19. All in sanctuary for Murder or Felony out of the house, wear a badg in length and breadth ten inches: they shall wear no weapon but their meat knives, and that at meal only.

Both these upon pain of loss of the privi∣ledg.

They shall not be out of their lodging before Sun rising, nor after Sun set upon pain of imprisonment two days in that Sanctuary for the first time he is so taken, the second time six days imprisonment, the third time loss of his priviledge, upon substantial and indifferent proofs before the Lord Chancellor. And it is Felony for any Sanctuary person that shall of prepen∣sed malice make rescues, or resist any Of∣ficer in imprisoning the priviledged persons as before. Contracts under 40 s. trespass and covenant between the priviledged persons, and other inhabitants in the San∣ctuary shall be determined before the Go∣vernor.

32 H. 8. cap. 12. All Sanctuaries adnul∣led other than Churches and Church yards, and certain places named in that Act, and in 33 H. 8. cap. 15. which are appointed places of Tuition, for term of life to the of∣fenders in capital offences. The priviledged persons shall every day be called by name, and making default three several days with∣out lawful cause, forfeit the priviledg: com∣mitting any offence punishable by death is forfeiture also.

CHAP. 32. Of Pleas in Bar.

THus far of Dilatory pleas.

Pleas to the action are those the go to the body of the matter.

And are pleas in bar or confessi•••• Pleas in bar are those which are to 〈◊〉〈◊〉 the Plaintiff of his action where the De∣fendant must make defence, as to sa•• Defendit vim & injuriam quando. 〈◊〉〈◊〉 this defence shall not be in dower as•••• of novel disseisin,* 1.405 Per quae servicia, and ••∣taint.

The Tenant may plead a Warran•• in bar of him that should warrant if ••redge•• bring the action. As if there be Gran••••∣ther,* 1.406 Father and son, the Grandfather is d••redge••¦seised, the Father releaseth to the disse••redge•• with warranty, and dyeth after the Gra••redge••¦father dyeth. Now if the Son bring an a••redge•• on to recover the Land he shall be ba••redge•• by the warranty made by his Father, ••redge•• this is called a Rebutter.

Statutes.

Glocest. cap. 3. The heir shall not ••redge•• barred of his mothers inheritance by th••redge•• warranty of the Father, being Tenant ••redge•• courtesie, or alienating without fine in t••redge••

mothers life time except he leave assets.

And though the Tenant of the Land be a stranger to the Warranty, as a dissei∣sor or one that cometh in by a recovery, may plead that he hath a third persons e∣state, and(a) 1.407 rebut, but not vouch by a Warranty made unto the person. But in(b) 1.408 Writs of Dower the Ancestors Warranty is no bar.

A Warranty made by the disseisor at the time of the disseisin: we call it a war∣ranty commencing by disseising. As the Fe∣offment with Warranty of a Father, or other Ancestor, lessee for years or at will of the demise of his son, or of guardein in Knights service or soccage, or where one which hath not right entreth into the Land, and pre∣sently maketh a Feoffment with Warranty, ••arreth not his heir(c) 1.409 for then his acti∣on and right should be lost for ever. But by such a Warranty the heir may be vouched, set that is in the nature of a Covenant a∣gainst him as Heir to his Ancestor. So that if he have other Land descended to him from the same Ancestor, it is reason that he Warrant that which he may do, saving to him his action that he may have by reason of the disseisin.

In an assise of novel disseisin and tres∣pass the defendant pleading a title in bar must give colour of title to the Plaintiff, for if either it be no title, as either in tres∣pass to plead(a) 1.410 it is his free-hold, or(b) 1.411 the free-hold of I. S. and that he entred by his

commandment, or(c) 1.412 when one praye••redge•• aid of J. S. or of the King, or Rege l••c••••¦leo, though he intitle himself by a lease ••redge•• will, &c. colour needs not. Otherwise ••redge••(d) 1.413 if he entitle another to a lease for ye••redge•• and justifie by his commandment. So(e) 1.414 a matter that destroyeth the Plaintiffs t••redge•• as a release in an assise,* 1.415 in a trespass ••redge•• goods a sale by a stranger in Market o••redge•• and that the Plaintiff took them out of ••redge•• possession, and he re-took them, there col••redge•• needs not.

No more it doth where he pleadeth ••redge•• the writ and not in bar, though the plea••redge•• deed go in bar. As in trespass of goods, ••redge•• J. S. was possessed and made Alice S. ••redge•• J. D. his Executors and dyed. Alice S. t••redge•• the Plaintiff to Husband, and was covert ••redge•• of the trespass and after dyed. So should ••redge•• writ be brought by J. D. who is yet in ••redge•• life, not named in the writ, judgment ••redge•• the writ, &c.

And in giving colour these things must ••redge•• observed.

1. It must be to the Plaintiff, not ••redge•• stranger,* 1.416 nor to the Defendant.

Not to a stranger, as in trespass that was seised and him enfeoffed, and J.S. cl••••¦ing by colour of a deed of feoffment fro•• where nothing in truth passed, &c. eno••redge•• and enfeoffed the Plaintiff. This is no g••redge•• colour, for in a stranger matters en fait ••redge•• always be alledged, as to say, that J. ••redge•• enfeoffed A. who enfeoffed the Plaintiff: ••redge••

that A. entred and disseised J. S. and en∣••ledge••offed the Plaintiff, &c.

Neither must the plaintiff give colour to ••ledge••he Defendant,* 1.417 as where the Defendant pleadeth his freehold, now if the Plaintiff ••ledge••ay that before the Defendant any thing had, A. was seised and enfeoffed the Plaintiff, and ••ledge••he D. by claiming colour of a deed of feoff∣••ledge••en from A. where nothing passed, &c. en∣••ledge••red, upon whom the re-entred is not good.

2. It must be of such a possession where∣••ledge••y he may maintain his action.

As in an assise the Defendant must give ••ledge••he Pl. a colour of the Pl. own possession,* 1.418 ••ledge••nd not of the possession of his Ancestor, as ••ledge•• say that the Plaintiff claiming by colour ••ledge••f a deed of Feoffment made unto himself ••ledge••here nothing passed, &c. is good. But not ••ledge•• say that the Plaintiff claiming by colour ••ledge••f a deed of Feoffment made to his Ancest∣••ledge••r where nothing passed, &c. for of such a ••ledge••ossession in his Ancestor he cannot have an ••ledge••ffise.

3. The colour must be a matter doubt∣••ledge•• in Law,* 1.419 or otherwise difficult to the ••ledge••y-people, else it is not sufferable, but he ••ledge••all be forced to take the general issue, as ••ledge•• an assise to say, Nul tort, &c. or in action ••ledge•• Trespass, not guilty. As if I bring ••ledge•• assise against you, and you say that you ••ledge•• the same land to one for term of life, ••ledge••d after granted the reversion to me, and ••ledge••e Tenant for term of life dyed, and that ••ledge••laiming the reversion by force of the said

grant, where the Tenant did never attu•••• entred, &c. This especial matter is suffer∣able, because that is dangerous to plead N•• tort, &c. For the lay-people will think that the reversion passeth by force of the gra•••• without atturnment. The same Law it is where the Tenant saith, that he himself let the land to the Plaintiff for term of his life, and then the Plaintiff did surrender: For the lay-people know not that a surren∣der may pass by word. The same Law it is where the Tenant saith, that the Father of the Plaintiff let unto him for term of an••∣ther mans life, and after released unto hi••. And the Plaintiff supposing that his Father dyed seised of the Reversion ousted him af∣ter the death of him, for whose life, &c. be∣cause the lay-people understand not but this release doth inure, whether by way of enlargment, feoffment, confirmation, ••redge•• extinguishment. The same Law it is if the Tenant say that the Father of the Plainti••redge•• enfeoffed him, and afterwards suffered hi••redge•• to occupy at will, and he supposing, &c. The same Law it is to say, that the Plain∣tiff claiming as Bastard and eldest ••redge•• entred, because the lay-people think ••redge•• the eldest Son, though he be a Bas••redge•• may inherit. The same Law it is to say ••redge•• such a one was seised and infeoffed, the ••••∣nant and the Plaintiff claiming by a De••redge•• feoffment made before where nothing ••redge••¦sed, &c. because the lay-people thi•• ••redge•• a good feoffment, though it be ••redge••

without livery. But where the special mat∣ter is not a matter in Law, or difficult, there the Tenant or Defendant must take the ge∣neral issue, as if the Tenant say, that he was seised untill he was by the Plaintiff dis∣seised, 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 Plaintiff claims as younger son, because that every man know∣eth, that the younger son cannot inherit be∣fore the elder. The same Law it is if he say, that he leased to the Father of the Plaintiff for term of life or years, or for term of another mans life, and the Plaintiff supposing that he had died seised of an estate in fee-simple, entred, &c. because in these cases the Lay people do well under∣stand that he is no disseisor: and therefore in these, and in all other like, the Tenant shall take the general issue.

In real actions for the meer right when it is in respect of a disseisin done to him or his Ancestors, and not founded upon a seigniory, as a Writ of Eschete, a Writ of ••ight sur disclaimer,* 1.420 &c. the Tenant can∣not traverse the seisin, but may tender half a Mark to the King to have it in∣••o••ted by the Iury: and being found that the Demandant was not seised in the time whereof he counteth, that shall ••••t him for ever.

Prerogative.

The Tenant cannot tender half a mark against the King.

The Heir or Executors in an Action brought against them, where they are chargeable, pleading a matter in their own knowledge(a) 1.421 which goeth in perpe∣tual bar. As for the heir to plead that no∣thing descended to him from the same An∣cestor; the Executor to plead a release or acquittance made unto himself, or that he was never Executor, nor never Administred as Executor shall be charged as in their proper duty, if it pass against them. O∣therwise it is if the Executor plead Mit••∣mer, or another Executor alive not named is the Writ (for that is no bar, but only to the Writ,) or Oriens inter mains (for that i••redge•• no perpetual bar,* 1.422 for a Scire facias lyeth i••redge•• they come to have Lands after) or a release, or acquittance to their Testator: or Nice•••• fait of their testator, for they cannot have knowledge of it. Otherwise it is also if ei∣ther the Heir or Executor be condemned by a Nihil dicit, or confess the certainty o••redge•• the assets. And in the first case, as wher••redge•• the heir pleadeth nothing by descent, &c. which is found against him, the Plainti••redge•• shall have an Elegit of the moiety of all h••redge•• lands, as well purchased, as by descent: ••redge•• in a Formedon en Descender, if the Tena••redge•• plead in bar a warranty with assets, a••redge•• the Demandant said Rien per descent, a••redge••

it is found that he hath by descent, he shall be barred of all that he demandeth by his Writ (of how small value that be which descendeth) because the issue that he ten∣dred is false.

In Assises of Novel Disseisin, Nusance, Mortdancester, Juris utrum, and in Indic∣ments and Appeals of Felony, the De∣fendant may plead in abatement, and o∣ver in bar, or take the general issue also. As in a Mortdancester,(a) 1.423 that he hath no∣thing but in right of his wife; or(b) 1.424 J. S. holdeth parcel of the Land in demand, not named in the Writ: and if that be found a∣gainst him, then that he hath abated. In an assise of Joyntenancy, or Misnomer, which are in abatement or any matter in bar: (un∣less he confess a putting out of the Tenant, or that which amounts to as much, as by pleading a release, or such like) and if that be not found, then he hath done no wrong. In a Juris utrum, the Tenant may plead Misnomer of the Demandant,* 1.425 or that a stranger holdeth parcel not named. And if it be found, &c. that the Demandant hath received his fealty, &c. And if it be found, &c. then that it is his Lay see, and not Frank Almoign, &c. In an Indictment, or appeal of death, Misnomer of himself, or no such Town; and to the Felony not guilty. But he cannot plead a Release and to the Felony not guilty:* 1.426 for by the Re∣lease he hath in a manner confest the felony: also he may plead a matter in bar, and upon

that sound against him, then plead not guil∣ty, though he pleaded it not before.

* 1.427In Assises of Novel Disseisin and Nu∣sance, he may plead a special matter that amounteth but to the general Issue. As in an Assise of Rent by Dean and Chapter, to say that rescous was made to the predecessor and no seisin in him, or in any Successor since that time. Though in the pretence of him that pleadeth it, it amount to no more, but that the Plaintiff was never seised, so as he could not be disseised.

Vpon(a) 1.428 Indictments of Felony and Treason, otherwise it is in Appeals, the Defendant being put to answer, which is called an Arraignment, is not allowed council, if he deny(b) 1.429 the fact. For either his conscience perhaps will sting him to ut∣ter the truth, or otherwise by his gesture, countenane, or simplicity of speech, it may be discovered; which the artificial speech of his Council learned, would hide and co∣lour. Also himself can best answer to the fact.* 1.430 But if he plead Sanctuary, or any o∣ther matter in Law, then he shall have council. A Presentment in the Leet o•• Sheriffs turn, after the day of the Pre∣sentment bindeth the party for ever, and is not traversible,* 1.431 but in cases that touch ones Free-hold: as that one ought to cleanse the High-way or such like, ratione te∣nurae suae: therefore the course is to remote such presentments into the Kings Bench by a Certiorari, where he may traverse them.

CHAP. 33. Of Confessions.

COnfession is when the Defendant confesseth the Plaintiffs action to be good. The Defendant confessing an Indictment of Felony may accuse o∣thers, in which case we call him an Appro∣ver. And one cannot(a) 1.432 be an Approver, but in Felony or Treason. And that upon an(b) 1.433 Indictment only, and though it be(c) 1.434 after not guilty pleaded, yet before ver∣dict he may become an Approver. But up∣on an appeal one cannot be an approver. For without(d) 1.435 confession of Felony be∣fore the Judges, which confession must be(e) 1.436 upon an indictment precedent (that the judg may at any time give judgment to at∣taint him) not upon an arrest for Felony of the same offence. But he cannot approve one that(f) 1.437 received him, for it must be of such an offence as he himself did, together with the other: nor one that(g) 1.438 abetted, and procured him to commit the Felony, for he confesseth not himself guilty of the same offence, in as much as he cannot abet himself.

Statutes.

Westm. 1. c. 12. Notorious Felons w^ch.

will not put themselves upon an inquest at the Kings sute against them, shall be put to a pain fort & dure, as those which refuse to be tried by the Law of the Land.

One that flyeth to a Church(a) 1.439 or Church-yard, and cofesseth before the Coronor when he cometh, the certainty of any bar, felony, where life or member is to be lost before he be thereof attainted, whether upon an indictment or appeal,* 1.440 as that he hath stoln such or such a thing, killed such or such a man. But at the first taking of the Church,* 1.441 it is enough to say, he taketh it for a felony, which he hath committed gene∣rally may abjure, and so save himself. But not in case of high Treason, or petty Trea∣son, for the Coronor cannot attaint him up∣on his confession thereof, because he is not his Judge of such a crime: neither can be hi•• Judg as he is Coronor, although he have a Commission from the King to do it. And if the offender, being in the Church, will of purpose confess a felony, to the inte•• to escape of Treason, yet if the Coronor have information that he is charged with a Trea∣son, he may not suffer him to abjure. And that for the Kings advantage, who is 〈◊〉〈◊〉 take more benefit if he be attainted of Trea∣son than of felony, because of the escheas The same Law it is of petty Treason, for th••redge•• Coronor can no more record his confessio••redge•• of that than of high Treason: neither may the Coronor if he be informed that he have committed petty Treason, suffer him to ab∣jure

of Felony, and that in respect of the heinousness of the offence,* 1.442 notwithstanding the King be to have no more advantage in petty Treason than in Felony. Neither can a man abjure for petty-larceney, because he is not to suffer death for it likewise.

Abjuration is his(a) 1.443 oath before the Coronor himself to depart the Realm for ever at the time and place set him: going the direct way thither: tarrying there but one flood and ebb if he can have passage: aad till he can so pass going every day in∣to the sea up to the knees to assay if he may passover, and if he cannot pass with in ••0 days, then to put himself again in∣to 〈◊〉〈◊〉 Church as a Felon, &c. And this ab∣juration is an(b) 1.444 attainder in it self (and that the strongest that can be, being by his own confession) and a(c) 1.445 forfeiture of his Land. And there is a Writ of escheate of of Land for ••elony, pro qua abjuravit reg∣••••. And therefore he(d) 1.446 that is hanged upon judgment against him, and becometh a∣live again, cannot abjure (but an abjuration in that case is an escape) for one cannot have two judgments for one offence.

Statutes.

9 E. 2. Stat. de artic. cleri. cap. 10. Those that abjure may not be molested whilst they are in the street, and whilst they be in the Church, their keepers may not tar∣ry in the Church-yard.

9 E. 2. St. de art. cler. c. 15. A Clerk

shall not be compelled to abjure, but to have his Clergy.

21 H. 8. c. 2. Immediately after con∣fession, and before abjuration, the Felo•• shall be marked in the hand with an hot Iron, with the sign of an A. The Felon must take his passage at such a day and time as the Coronor shall limit, else he shall lose the benefit of Sanctuary, and be taken out, and further ordered according to his demerits, without restitution to Sanctuary.

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

22 H. 8. c. 12. All abjurations shall be made to certain priviledged places within the Ream, mentioned in that act, there t•• 〈◊〉〈◊〉 main during his life.

CHAP. 34. Of Replication, Rejoynder, Sur-re∣joynder, &c.

THe mutual pleas of both are the ••∣bating before issues, or an issue it self.

Debating before issue, is the dis∣cussing of the material things, to draw it to some one issue. As in an actio•• of Trespass or an Assise, if the Defendant claim by a lease from the Plaintiff to A. who granteth his term to B. and to B. the

Defendant, the Plaintiff must answer only to his own Lease, for the assignments of A. are but conveyances, and not material. But in an assise, if the Defendant derive his inte∣rest from a stranger, and that A. was seised and enseoffed B. who enfeoffed C. and C. the Tenant: there the Plaintiff may traverse any of the mean Conveyances, for they are all material.

Therefore repugnance of a Plea unto it self is a fault in pleading, as in an action of Trespass of his house, and walls broken down, the Defendant cannot plead touch∣ing the house, not guilty, and as to the breaking down of the walls justifie, for this carrieth a repugnancy in it, in as much 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 cometh in with a new matter. As if the rejoynder be a matter puisne, underneath the matter of his bar, not above and going before it. As in an action of Trespass, the Defendant pleadeth a discent unto him of the Land, the Plaintiff saith, that after the descent the Defendant enfeoffed him. Now if the Defendant rejoyn that the fe∣offment was upon conditon, and he en∣tred for the condition broken; this is a de∣parture for the matter of the bar, that is, the discent, is before the matter of the re∣joynder, that is to say, the entry for the condition broken, whereby the feoffment is avoided. So in an assise, the Defendant

pleadeth the feoffement of J. S. and the Plaintiff make title to himself by discent, and that he was disseised by J. S. who en∣feoffed the Demandant, or that he enfeoffed J. S. upon condition, who brake the condi∣tion, and afterwards enfeoffed the Defen∣dant, &c.

Now if the Defendant say that after the disseisin (or condition broken) and after the feoffment of I. S. to the Defendant, the Plaintiff did release to the Defendant, or confirm the estate of the Defendant, this is a departure, for that is a matter that grow∣eth after the feoffment pleaded in Bar. But if he plead such a release or confirmation from the Plaintiff to I. S. that is no depar∣ture, for it is a matter before the feoffment, or in an action of trespass for goods, if the Defendant title himself by the gift of I. S. and the Plaintiff saith, that himself was possessed till I. S. took them from him, and gave them to the Defendant. Now the De∣fendant may say, that after the taking the Plaintiff gave them to I. S. who gave them to the Defendant; for although the Defen∣dant might have pleaded these things at the beginning, yet in as much as it is pursu∣ing, and fortifieth his Bar, and no puis••e matter underneath the title of his Bar, but eigne, and above the matter of his Bar, there∣fore it is no departure. So a plea in Bar which is intendible at the Common Law, cannot be maintained by a matter of Cu∣stom, or by Statute-Law. As in an assise the

tenant pleadeth in bar a devise unto him∣self of the Land being devisible by the cu∣stom, the Plaintiff saith that the Devisor was within age at the time of the devise. Now if the Tenant said that by the custom there an infant of fifteen years of age may make a devise: This is a departure, for the custom pleaded in bar shall be intended of those that may make a devise by the Com∣mon Law. So if in an action of Trespass the Defendant plead in bar a lease for fifty years from a house of Religion, and the Plaintiff avoid it by reason it was made within a year 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 provided that all such leases shall be good for 21 years, and so maintain the lease to be good for so many years, this is a depar∣ture: or if one plead a fine, and that being avoided, because the parties to the fine had nothing, will maintain the fine to be good by the Statute 1 R. 3. because he had levied the fine cesti qui use. Lastly, when matters are pleaded which offer several issues, that is termed a double plea, and is a fault in pleading. As in an assise to plead a feoff∣ment of the Ancestor with Warranty. In debt upon a simple contract to plead pay∣ment and an acquittance. In an assise to plead divers descents of the Land in fee-simple, for every of them requireth a seve∣ral answer. But in an assise to plead divers

discents in tail, is not double, for one an∣swer maketh an end of all, that is to deny the gift in tail, So as the matter cannot co•••• but to one issue: So in an action of debt to plead fully administred, and so riens tu•• mains, for one answer, assets enter main•• serveth.

So is it also of two or three matters toge∣ther with the general conclusion, as in debt upon an obligation to say, that he is not lettered, and the Deed was read unto hi•• in another sort: and further, that he deli∣vered it upon a condition, which is not per∣formed, so not his Deed. So to justifie an ar∣rest for twenty causes of suspition of felony, is not double, for one answer serveth De s•••• tort demesne. No more to assign in a Writ of error as many errors as appear in the re∣cord, for in millo est erratum, answereth them all. But to assign divers errors en fait is double, for these are to be tried by the Country. And the reason of all this is, be∣cause upon divers issues joyned, if one be found for the party, and another against him, the Court shall be inveigled, and not know how to give judgment, whether for him, or against him. But to plead a feoff∣ment with warranty, and relye upon the warrranty only is not double, for he can∣not plead the Warranty without the feoff∣ment.

Of the first sort are Replication, re∣joynder, surrender, &c.

In an assise against many, if each(a) 1.447 take the whole tenancy severally, and ••••ad(b) 1.448 several matters in bar: or(c) 1.449 ••••t Nul tort, and the other in bar: other∣••••se(d) 1.450 it is if one plead in bar, and the o∣ther Joyntenancy by deed: the Plaintiff at his peril must chuse his Tenant.* 1.451 And then after issue for the whole, that, viz. the Tenancy, shall be first inquired of. And being found for the Plaintiff, then the o∣ther issue shall be inquired.* 1.452 Being found against him, and no title made against the tenant indeed, the writ shall abate.

In an action of trespass meer transito∣ry, although the Defendant justifie by any special matter, as in a(a) 1.453 Trespass of goods, by commandment of J. S. whose the property is, in(b) 1.454 assault and battery, or an(c) 1.455 appeal of maime, in his own de∣fence upon the plaintinffs first assaulting of him: in false imprisonment by(d) 1.456 being Constable of the Town, and that the Plain∣tiff brake the Peace, or(e) 1.457 by an arrest for suspition of Felony, or by(f) 1.458 the com∣mandment of J. S. to seise the body of the Plaintiff in ward, by reason his ancestor whose heir he is, held of J.S. by Knight ser∣vice, &c. yet the Plaintiff 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 Justification be by matter of writing, or record, as in false imprisonment, by(a) 1.459 a warrant of Justice of peace to arrest him, or

a(b) 1.460 Capias that came to him as Sheriff to take the body of the Plaintiff, or if it be any(c) 1.461 title or licence (d) from the Plaintiff, there de son tort demesn is no plea, but the special matter must be answered.(a) 1.462 So al∣waies in a trespass local, as of his close broken down, &c. If the Defendant intitle a stranger to the Land, whether to the free-hold, or though it be but to a lease of it, and justifie by his commandment. And like∣wise in a(f) 1.463 replevin which is real, the ti∣tle or special matter must always be tra∣versed. If it be a trespass upon land, the Defendant justifying in some other land than the Plaintiff meaneth, the Plaintiff may make a new assignment, setting forth the place more specially.* 1.464 As if the De∣fendant justifie in a place called A. as his free hold, the Plaint. may say in the place where, &c. is called B. other than the place called A and then the Defendant may plead all anew.

CHAP. 35. Of Issues.

AN Issue is when both the partie•• joyn upon somewhat that they refer unto a trial, to make an end of the Plea. And it is of the fact, or law of the fact, which is commonly termed by the general name of issue, when the proper contradiction of that which one alledg∣eth is set down by the other, which is properly termed a traverse. As in debt upon an Obligation for performance of Cove∣nants,

and the defendant plead he hath per∣••••med all, the Plaintiff must shew some in ••••tain which the Defendant hath broken,* 1.465 thereupon issue shall be joyned: but can∣••••t reply that the Defendant hath not per∣f••rmed all. For in Logick there be three ••••ods of contradictions: General, when both the Propositions are general, as, All be covenants are broken, None of the co∣••enants are broken. Particular, when one is General, the other particular, as, all the ••ovenants are broken, some of the co∣••enants are not broken, none of the co∣••enants are broken, some of the covenants ••••e broken. Proper, when both the propo∣sitions are proper, as, this covenant is bro∣ken, this Covenant is not broken.* 1.466 The two ••••mer make no issue in our Law, but the ••••ter only: and every issue is of an affir∣••ative and a negative. After which if any insufficiency of pleading appear in the word, whether the issue be joyned there∣upon which we call a Jeofaile, or no, the parties must replead or begin a new ••here the first defect was. And in this case Jury is ready at the bar that to pass upon ••••e issue, shall be discharged.* 1.467 As if the bar be good, and the replication ill, and issue ta∣ken upon it, the judgment must be that the Plaintiff must make a new replication, and the bar shall remain. So if the bar be good, and likewise the replication, but the rejoynder ill, and the issue taken upon the rejoynder, the defendant must take a new

rejoynder, and the replication shall remain. But if the Bar be ill, and the replication good, and the issue taken upon it, now they must plead all a new, because the bar which is first of all is vicious.

But no repleader shall be in an assise, if the Plaintiff have disclosed a suffici∣ent title: for in an assise no Land in cer∣tain is demanded, but an assise only pray∣ed. And therefore where a sufficient title is disclosed, the Plaintiff shall have judgment upon seisin, and disseisin found for him. And no repleader shall be notwithstanding that the Tenant have made a(a) 1.468 vicious bat or(b) 1.469 misrejoyned. Otherwise it is if the Plaintiff take issue upon an insufficient bar.

If the tender of this issue come on the Plaintiffs part, the form is, Et hoc petiit quod inquiratur per recordu, vel patrid, &c. If on the Defendants part, then it is, Et de hoc point se super recordum illud vel s••∣per patriam.

* 1.470Issue in a writ of right cannot be joy∣ned, we call it joyning of the mise, upo•• the meer right, but by the party himself, not by Attorney.

* 1.471Where the Plaintiff in his replication maketh title at large, without traversing or confessing and avoiding the bar, or any way medling with it, the Tenant may joyn issue upon the title by saying, Veig•• assise sur la title,* 1.472 that is, Let the assise come upon the title, which is called a pleading to the assise at large. This to be understood

where the title is by a matter en fait, but not record, or done(a) 1.473 in a forein Coun∣ty, for they are not tryable by the assise.

And in a personal action, whether tres∣pass or replevin where justification is made for damage feasant, for that is meerly in the personality, where the title of the Land cometh in question, lyeth not till issue joyned. And yet in that case it never ly∣eth for Tenant for life, but only for Te∣nant for years, Bailiff, &c.

Prerogative.

Aid in these actions shall be of the king before issue joyned only,* 1.474 though the King be seised but in his natural capacity, as in the right of his Dutchy of Lancaster.

CHAP. 36. Of Trial by Jury.

THis being of a matter en fait, that is to say,* 1.475 done in the Coun∣trey. For a Jury shall not be charged with a matter in Law: nor it shall not be given in evidence unto them. But if they will take knowledge of the Law, they may give their verdict generally,* 1.476 viz. where a verdict may be given at large. As upon an issue of Nul tort nul disseisin. So the Jury may find of themselves matters of

record if they will, and although it be 〈◊〉〈◊〉 given in evidence. And therefore a fine or common recovery may be given in evi∣dence without shewing it under the great Seal, or Seal of the Court, or vouching the Roll of the Recovery, for the Jury may f••••d them if they will. But peradventure they are not bound to find it upon pain of ••••∣taint,* 1.477 unless it be shewed under the Seal is triable by the oath of twelve free 〈◊〉〈◊〉 lawful men of the same County, indiffe∣rently chosen, whom we call a Jury, and the making of the Jury is called a panel or array. And these must be 12 for the verdict no more or less, as of(a) 1.478 11 or 13 is void free, not(c) 1.479 villeins, nor(d) 1.480 aliens: law∣ful, for one outlawed may not be a Jur•• because he is not Legalis homo,(e) 1.481 and ••redge•• the same County, for upon(f) 1.482 a tresp••redge•• local, as grass cut down in the County o••redge•• D. where the Trespass was in the Cou••redge•• of S. if the Defendant plead not g••redge•• (as he may) and the Jury find him g••redge•• in the County of S. the verdict is void.* 1.483 ••redge•• if they find them guilty generally, a•• ••redge••¦taint lyeth. But upon an issue whether ••redge•• Executors have assets in their hands, the ••redge••¦ry may find the assets in any County, s••redge•• is but a transitory thing. Lastly, the J••redge•• must be indifferently chosen, so as nei••redge•• the Sheriff that maketh it (for that is g••redge•• cause of challenge to the panel or a••redge•• nor the Jurors that are to pass upo•• (for that is good cause of challenge to ••redge••

pols) bear either favour or malice to any party. As for the Sheriff to put in any Ju∣ror at the parties denomination. And either the Sheriff or Juror to be of his(a) 1.484 Fee,* 1.485 or his(b) 1.486 servant, or within(c) 1.487 his distress, whether his Tenant (immediate or not im∣mediate, as(d) 1.488 holding of J. S. who holdeth of the party) or not his Tenant, as where he is to come to the parties Hundred, or the party hath a Rent-charge going out of his Land. To be of kin to the party, for Cousin∣age in the Sheriff is a good principal chal∣leng to the array, and in a Juror to the Poll: although it be in the ninth degree, and that one cannot be heir to the other of the land in variance. As if Husband and Wife be vou∣ched (which is intendible for the warranty and Land of the wife) and the Sheriff or Juror be Cousin in the ninth degree unto the Husband, the reason whereof is, for the affection which the Law intendeth that the one doth carry to the other. And because one may be heir to the other of other land. And therefore it is a good challenge in per∣sonal sutes also: To have been(a) 1.489 arbitra∣tors on his part in that matter. To(b) 1.490 have an action of battery depending against the party, or an action of debt by the party a∣gainst him, &c. The Juror to have(c) 1.491 ta∣ken money for his verdict to have(d) 1.492 given it beforehand, or to have(e) 1.493 passed formerly in the same matter, and such other things as of themselves carry favour or malice in them, and are called principal challenges. So

of those which only do induce it: as to be the parties(f) 1.494 Master,(g) 1.495 Councellor, At∣torney,(h) 1.496 Steward of his Manor, to(i) 1.497 soe him in an action of debt, &c. to be(k) 1.498 of the same society with him, as if both be of Graies-Inne, or the(l) 1.499 party to be within his distress, or(m) 1.500 he to have passed before upon such another matter.

Statutes.

Westm. 2. cap. 38. In an Assise no more shall be summoned but 14.

Men above Lxx. years of age continually sick, or sick at the time of Summons, shall not be returned in Juries or Assises: nor any that dwell out of the County, unless it be in grand Assises.

Artic. super chart. cap. 9. 34. E. 3. cap. 4. Juries shall be made of the next people of the County.

11 H. 6. cap. 1. None dwelling in Stews shall be of a Jury.

9 E. 3. cap. 4. A Deed pleaded in a Franchise shall be tried in the County where the action is brought.

2 E. 6. cap. 24. Upon stroke or poyson in one County, the party dying in another, an indictment and tryal may be in the County where he dyeth. And an appeal

sued there, and tried by twelve men of the same County.

Likewise the accessaries in one County to a Murder or Felony in another County, shall be indicted, arraigned, &c. in the Coun∣ty where the offence of accessary is done.

33 H. 8. cap. 20. Indictment of a per∣son Lunatick, being at the time of confessi∣on of Treason before the Council, of perfect memory, and so certified by them, shall be tried by Free-holders of any Shire to be ap∣pointed by commission. And the tryal whe∣ther he be culpable or not, shall be there in his absence.

13 H. 8. cap. 23. Confession of Treason Misprision of Treason, or Murder being made before the Council, or three of them, or they vehemently suspecting one of such an offence, it shall be inquired, heard, and determined by Commission out of the Chan∣cery, in the Shire or place limited in that Commission, by such lawful persons as shall be returned; wherein no challeng for the Shire or Hundred shall be allowed.

28 H. 8. cap. 13. and 27 H. 8. cap. 4. All Treasons, Felonies, Robberies, Murders, and Confederacies within the Admirals Ju∣risdiction shall be inquired and determined in such form of Law as if it were done upon the land, by Commission directed to the Admiral and three or four other assigned

by the Lord Chancellor in the Shire limited in their Commission, where no challeng shall be for the Hundred.

32 H. 8. cap. 4. The indictment and ar∣raignment of treasons and misprision of treasons in Wales, or else where the Writs out of the Chancery of England run not, shall be in such Shire, and before such Com∣missioners as the King shall appoint.

35 H. 8. cap. 2. All Treasons, Mispri∣sions, or concealments of Treason done out of England, shall be inquired, heard, and determined 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 And 2 Ph. and Mar. cap. Trials for Treason shall be according to the course of the Common Law.

23 E. 3. cap. 3. No indictor be put in Enquests upon the deliverance of Indictees of Felonies or Trespass.

Westm. 2. cap 38. None shall be put in Assises or Juries triable in their own Shire, but such as have 20s. a year Free-hold, not in assises triable out of their own Shire, un∣less they have 40s.

21 E. 1. De ponend'in Assisa. None shall be put in assises triable out of their own Shire but such as have lands to the yearly value of a C. s. nor in assises triable in their own Shire, unless they hav 40s.

2 H. 5. c. 3. None shall pass in an In∣quest upon the tryal of the death of a man, nor between parry and party in plea real or personal, whereof the debt and damages a∣mount to 40 marks, unless he have Lands of the yearly value of 40s.

33 H. 8. c. 13. In Cities, Boroughs, or Corporate Towns, an Inhabitant being worth 40l. in goods, shall be admitted in trials of Murder and Felonies in every Ses∣sion and Gaol-delivery for that Town, though he have no free-hold.

35 H. 8. cap. 6. Made perpetual.

2 E. 6. c. 32. The cause of having 40 s. value, must be inserted in the venire facias; and be of Lands out of antient demesne. Where that clause needs not, the Jurors must dispend some Land of Free-hold out of an∣tient demesne within the County where the issue is to be tried.

27 El. c. 6. Where the Jurors return∣ed in the Kings Bench, Common place, Exchequer, or before Justices of Assise, ought to have 40 s. Free-hold, there they shall from henceforth have 40 l. yearly Free-hold out of antient demesne, in the County where the issue is to be tried. And the clause thereof inserted in the venire facias. These two Statutes extend not to Corporations.

27 El. c. 7. No Bayliff of Liberty shall return to the Sheriff, or deliver unto him

the name of any person to be returned in a Jury without some addition whereby the party may be known. Neither shall the Ju∣ry, &c. return any Juror out of a Liberty without some addition whereby he may be known, nor within a Liberty with other addition than that is delivered unto him by the Bayliff, &c.

8 H. 4. cap. 3. Every Juror returned within the County of Middlesex shall be cal∣led the fourth day of their return, and ap∣pearing at the same day, their appearance shall be recorded, and they shall not be amer∣ced, nor lose their issues.

5 E. 3. cap. 10. A Juror taking of the one part or of the other, shall never be of Jury more, and besides imprisoned.

34 E. 3. cap. 8. The party or any stran∣ger may sue him for it.

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

Westm. 2. cap. 30. Assises of novel dis∣seisin, Mortdancester, and Attaints, shall be taken thrice a year by two Justices assigned, associated with one or two discreet Knights in the Shire where they come.

In every Shire before their departure they shall appoint the day of their return: And adjourn the Assises if the taking be by any means deferred.

Also in assises of mortdancester being re∣spited, they may adjourn into the Bench if need be. And when it cometh to the taking of the assise, the Justices of the Bench shall send it back again to them.

All Pleas in either of the Benches that require small examination shall be determi∣mined before them.

27 E. 1. cap. 4. Statutum de finibus leva∣tis. Such Inquests being taken, shall be re∣turned into the Bench, and there Judgment shall be given.

Inquests and Recognisances determinable before Justices of either Bench: shall be ta∣ken in vacation time, before any of the Ju∣stices before whom the plea is brought, be∣ing associate to one Knight of the same Shire, where such Inquests shall pass, unless it require great examination.

12 E. 2 cap. 3. Stat. Eborac. Inquests in pleas of Land (that require no great ex∣amination) shall be taken in the County be∣fore a Justice of the place where the plea is accompanied with a substantial man in the County, Knight or other, so that a certain day be given to the Bench, and a certain day and place in the Countrey, in pre∣sence of the parties demanding of the same.

Inquests in pleas of Land that require no great examination, shall be taken in the Countrey, (in manner abovesaid) before

two Justices of the Bench.

2 E. 3. cap. 17. All such Inquests in plea of Land shall hereafter be taken as well of the request of the Tenant, as Demandant.

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

7 R. 2. cap. 7. In all manner of pleas where a Nisi prius is grantable of office after the great distress returned and thrice served before the Justices against the Jurors, and thereupon the parties demanded if any of the said parties will pursue, or if the par∣ties refuse to have Nisi prius in the case, then at the sute of any of the Jurors that is present a Nisi prius shall be granted for ending of the quarrel.

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

18 Eliz. cap. 12. The chief Justice of England upon issue joyned in the Kings Bench or Chancery, and the Chief Justice

of the Common Pleas, and chief Baron of the Exchequer, upon issues joyned in their several Courts (or in their absence two o∣ther Justices or Barons) or made Justices of nisi prius for the County of Middlesex, in all issues joyned to sit in Westminster Hall with∣in the Term, or four day after.

4 E. 3. cap. 11. confirmed. 7. R. 2. cap. 15. Justices of nisi prius shall inquire, hear, and determine, as well at the Kings suit as the parties, all maintainers, conspi∣rators, makers of confederacy, & committers of Champerty, and all other things contain∣ed in the said Article, as well as Justices of ••yer should do, if they were in the same County.

14 H. 6. c. 1. Justices of nisi prius have power in cases of Felony and Treason as tell upon acquittal, as attainder, and there∣upon to award Execution.

Stat. Eborac. 12. E. 2. cap. 2. Up∣on a deed denied where witnesses are na∣med, process shall be awarded against the witnesses, if they come not at the grand di∣stress, or upon a nihil non inventus returned, yet the taking of the inquest shall not be deferred. If he come at the grand, and the inquest remaineth untaken for some cause, the witnesses shall have idem dies, and not appearing, then the first issues returned on them shall be forfeit, and the inquest taken, notwithstanding their absence.

An Inquest shall be taken notwithstand∣ing the absence of witnesses dwelling in a Franchise where the Kings Writ runneth not. Four of the Iury must also be of the same Hundred,* 1.501 and so many are e∣nough though it be in an attaint where the Jury is 24. In an information upon the Statute of plurality of Farms, for having se∣ven Farms in seven Towns in four several Hundreds: If four of the Jury have any thing, or dwell within any of the four several Hundreds it is sufficient.

Statutes.

15 H. 8. c. 6. Made perpetual. 2 E. 6. cap. 32. Six sufficient Hundreds shall be re∣turned in every Jury.

27 El. cap. 6. If two sufficient Hundreds appear in any personal action, it is enough.

If the thing in issue lye in the notice of two several Counties, and not of one only, for(a) 1.502 only two Counties may joyn, and no more. And two may though they be not the next, as Kent and Devon-shire, the Iury shall be made(b) 1.503 equally out of both: That is, six out of the one, and six o•••• of the other. And this we call a joynder of Counties, as in(c) 1.504 an action of Trespass, if the Defendant justifie for common append∣ant to Land in another County, or in a writ of annuity and Count of a seisin in another County then where the Church is, out of which the annuity goeth.

Statutes.

7 R. 2. cap. 10. An assise of novel dis∣••••s•• of Rent out of the Tenements in di∣••ers Counties, shall be in the confine of the 〈◊〉〈◊〉 Counties.

But upon an indictment of an offence ••••••inst the Crown,* 1.505 the tryal shall never 〈◊〉〈◊〉 by joynder of Counties. Therefore an I••dictment that one stroke J.S. in one Coun∣ty, of which stroke he died in another County, is no good Indictment, because it cannot be tried, for that the Counties can∣not joyn in an indictment. And therefore be∣••••re the Statute 2 and 3 E. 6. (which al∣••••reth the Law in this case) they were wont ••o carry the Corps into the County where ••e stroke was. But otherwise it is in an ap∣peal.

But if the Defendant plead in any ••••tion, as in a homine replegiando, or though it be but in a Writ of Trespass or Debt,* 1.506 ••••••t the Plaintiff is a villein regardant 〈◊〉〈◊〉 a Manor of his in another County, yet 〈◊〉〈◊〉 same shall be tried in the County ••••ere the Writ is brought. And this is in Ferorem libertatis.

28 E. 3. c. 1. confirmed. 6 H. 6. c. 28. in every sute between an Alien and a De∣••esne, (though the King be a party) the one half of the Jury shall be the Aliens. If so many be in that visne, and if there be

not to that number, then so many as be there not parties, nor with the party to the sute.

Where a Peer of the Realm is party to the action,* 1.507 a Knight must be returned to the Iury.

Statutes.

Magn. chart. cap. 29. A Peer of the Realm upon an indictment of Felony or Treason shall be tried by his Peers.

20 H. 6. cap. 9. Dutchesses, Baronesses, Countesses, sole or married, shall be tried (in such cases) as Peers of the Realm. I•• a Court of Pipowders the trial is by the Merchants.* 1.508

The Iury in a Writ of right is called the grand Assise. Being four Knights, 〈◊〉〈◊〉 other in default of Knights chusing a Iury of 12. unto them. So note 16. in all, see the grand Jury is always about 12, 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 12.

Challenges are here allowed for the parties (if they will) both to the array a•••• to the polls. And whether to the pannel 〈◊〉〈◊〉 the pols, are to be tried by some of the Iu∣rors, if it be(a) 1.509 before any Iuror swor•• the Court shall choose the Triors, whe•• any Jurors are sworn, they must try it.

Challeng to the array is when the Iu∣ry is not sufficiently impannelled up••••

just cause of challeng to the Sheriff, and ••••••erwards to the Coroners,* 1.510 who by reason ••f just exception against the Sheriff made it should make the array, the(d) 1.511 Court ••••st chuse certain named Esloiers(e) 1.512 ••here the parties shall never have chal∣leng to the whole array. Challeng to the ••••ll is when any of the Iurors are insuf∣••••••ent to pass upon the trial.* 1.513 This chal∣lenge must be taken before the pannel be perused: For if the Plaintiff challenge one, and when the panel is perused, the Defen∣dant challeng the same person, yet the ••laintiff may release his challeng, and then ••••e Juror shall not be drawn, because the ••efendants challeng is nothing worth, in ••••at it was not made till the panel was pe∣••••sed, and shall be tried by two of the Iu∣rors chosen by the Court,* 1.514 against whom 〈◊〉〈◊〉 challeng shall be admitted, but challeng- 〈◊〉〈◊〉 that sound not in reproach of the juror, 〈◊〉〈◊〉 to be(a) 1.515 of council with the party, or(b) 1.516 within his distress, to have(c( 1.517 nothing ••••thing the Hundred, or(d) 1.518 not suffici∣ent free-hold, shall be examined upon his ••••th, which we call an examination upon a ••••yri dire. He that challenged the array if it pass against him, or (which is as strong) she release it, shall never challeng the polls without shewing cause presently, ••hich shall be tried out of hand. Before the Clerk pass through the pannel.* 1.519 So shall not any other challeng. And after thalleng to a Iuror for one cause, as favour, &c. w^ch.

passeth against the challenger, he shall n•••• challeng him for another, as for having nothing in the Hundred, &c.

In indictments and appeals of Felo∣ny the Defendant may challenge 35 Iu∣rors without shewing cause,* 1.520 which is cal∣led a peremptory challeng.

Statutes.

22 H. 8. cap. 14. No person arraigned for any petty Treason, Murder, or Felony shall be admitted to any peremptory challeng a∣bove the number of twenty.

* 1.521When there lacketh some to fill the Iu∣ry, as the greater part being returned dead, or not appearing. But if all the pols be chal∣lenged and drawn, there no tales shall be, b•••• a new venire facias for tales referred to (quales) some like thing, other of the sa•••• sort shall be taken, for there may be ma••y tales one after another(a) 1.522 till it be full, which we call a Tales, which must be 〈◊〉〈◊〉(b) 1.523 even number(c) 1.524 less than the prin••••¦pal panel, As a decem tales, octo tales, &•• or in an attaint where the Jury is 24. 20. Ta∣les, &c. And(d) 1.525 every tales must be 〈◊〉〈◊〉 a less number than other. As after a•• Octo tales, a Sex tales, but not a decem tale•• nor an Octo tales again.

Statutes.

35 H. 8. c. 6. Made perpetual. 2 E. ••.

cap. 32. A Tales may be made up before Ju∣••••••ces of Assise or Nisi prius ofable persons of the same County, then present at the prayer of the Plaintiff or Demandant.

4 And 5 Ph. and Ma. cap. 7. So for the King upon request by any authorised thereunto, or assigned of the Court, or by the party that followeth upon a penal Sta∣tute as well for the King as for himself.

15 El. cap. 9. Such a Tales de circumstan∣ti••us before the Justices of Nisi prius shall be granted at the prayer of the Defendant or ••••owant.

But in Indictments and Appeals that ••••ch life,* 1.526 a Tales may be of a greater num¦ber than the principal pannel. As a 40 Tales or as many as the Court will award, and that is in respect of the peremptory challenge of 35.

The Iury being charged, may neither ••••t nor drink (but by leave of the Iusti∣••••s) before their verdict given,* 1.527 and doing 〈◊〉〈◊〉 before they be agreed, it maketh their verdict void. After they be agreed it is ••••t fineable.

The Iury upon arraignment either it the(a) 1.528 Kings sute(b) 1.529 or in an Appeal acquitting one that was found guilty of the(c) 1.530 death of a man upon an inquiry(d) 1.531 by the Coroners Super visum corporis must ••••nd who did the fact. But upon an In∣dictment(e) 1.532 before the Sheriff or Justices

of peace, for that is not of Record, as the finding before the Coroner is,(f) 1.533 neither doth this take place in an acquitail upon an Indictment for the felonious taking of goods.

* 1.534The Iury in an assise of Novel disseis•• (which are there themselves properly cal∣led an assise) shall inquire of the plea in abatement, though the issue be joyned up∣on the seisin and disseisin. And therefore no plea in abatement is there answera∣ble.

34 E. 1. De Conjunctim feoffatis. The de∣fendant in assise alledging joyntenancy of his part with a stranger by Deed, the Plain∣tiff may aver him to be sole tenant; where∣upon Process shall be made against both the defendant and the stranger. And if a•• the day both of them justifie the feoffment, they shall maintain the exception, and further answer to the Assise, as if the origi∣nal had been purchased against him joynt∣ly. If the exception be proved false by the Assise, they shall have a years imprison∣ment, though the Assise pass for them. I the Defendant absent himself at the day, the Assise shall pass against him by defa••••, though the stranger appear and Justif••e the Deed. Whether both, or one a••∣pear, if it be found by the Assise that the Exception was truly alledged, the As•••••• shall pass no farther, but the Writ sh•••••• abate. Such an Exception shall not be al∣ledged

by the Bayliff of any Tenant. The like processes in assises of Mortdancester and Juris utrum.

An Infant bringing an Assise, if a mat∣ter en fait, that is,* 1.535 done in the same Coun∣ty be pleaded against him, whether in A∣batement, as in an assise of Rent, that he had made his plaint of the same land whence he supposeth this Rent to be issuing: or in Bar(b) 1.536 as the Deed of his Ancestor, with warranty, the Iury shall inquire of all the circumstances. Otherwise it is a Writ(c) 1.537 of entry sur disseisin, or other(d) 1.538 Praecipe quod reddat: for there the point put in issue and no other, shall be tried by the Jurors. Otherwise it is also in an Assise upon plead∣ing a recovery(e) 1.539 against him, or other matter of Record: in that case he must an∣swer, and the Jury shall not inquire of the circumstances, for the Court shall plead and maintain for him.

The like inquiry of the circumstances ••••all be, if in an assise brought against ••im he plead to the assise at large.* 1.540 Other∣••ise it is if he plead in Bar, for there if the ••laintiff make himself title as by a statute ••erchant, &c. and the Infant traverse the ••••e which is found against him, the Plaintiff ••••all have judgment without inquiring of ••••e circumstances, because the issue is taken ••t of the point of the assise, and therefore ••••all one as if the Infant were of full age. So ••••••t it is better for an infant to plead unto ••••e assise at large, than otherwise.

* 1.541The form of an Assise of novel Disseisin, it this, Rex vic' salutem. Quaestus est nobis A▪ qd. B. injuste, & sine judicio disseisivit eum de libe∣ro tenemento suo in N. infra triginta annos jam ultimos elapsos. Et ideo tibi praet' qd si praedict' A. fecerit te securum dè clam•• su pr'os tunc fac' tenement', illud reseisum de ca∣tallis quae in ipso capt', & ipsum ten' cum ca∣tall. esse in pace us{que} ad proximam assisam, c•••• Justic' nr'i in partes ill' venerint. Et in eari•• fac' 12 liberos & legales homines de visam illo videre tan' illud, & nomino eorum imbreviari fac' Et sum' eos per bonos sum' qd sint cora•• praefat' Justic' nr'is ad praefatam assisam p••∣rati inde facere recogn'.* 1.542 Et pona per vadian & salvos pleg' praed. B. vel balivum suum si ipse inventus non fuerit qd tunc sit ibi ad illud re∣cogn'auct'. Et habeas ibi summ' nomina pleg': & hoc breve. Teste, &c.

* 1.543If the Tenant in a Mortdancester (be it Tenant of the Land, or Tenant by his War∣ranty) traverse any point of the writ, as the dying seised of his ancestor, &c. which goeth in abatement of the writ, yet the Iury shall inquire of all the points, as whether the de∣mandant be next heir, and whether his An∣cestor died within fifty years, &c. and any one found against the Demandant aba∣teth the writ. But a plea in bar of the assise by matter of record, release, collatteral war∣ranty, or such other matter as is out of the three points of the Assise, is peremptory to the Tenant, if it pass against him. And 〈◊〉〈◊〉 such a Plea in Bar be found again••••

the Tenant, and yet the Jury inquire fur∣ther and find one of the points of the Writ against the Demandant, as that his Ancestor died not seised, &c. he shall recover not∣withstanding that, for such an inquiry should not be upon a plea in Bar. Dyer thinketh it to be so likewise, where the Tenant vouch∣eth, and the Demandant doth counterplead the voucher, viz. that in that case though the counterplea be found for the Demand∣ant, yet that all the points must be inqui∣red and found for the Demandant, or else he shall not recover. But Fitzherbert think∣eth otherwise in that case, because it is a plea in Bar, and not to the writ.

For the Iuries direction in their ver∣dict greater liberty is permitted in plead∣ing, and matter doubtful in Law,* 1.544 for a Traverse may be omitted. As in Debt, against an Executor, it is a good plea to say, Administration was committed to him, and therefore he should be named Admini∣strator, and not Executor, without traver∣sing that he is not Executor, for the Lay-people know no difference between one ad∣ministring as Executor, and one admini∣string as Administrator.

The special matter may be pleaded to∣gether with a general issue, &c.* 1.545 As that the Obligation put in sute, was sealed by him and delivered to A. to keep till cer∣tain Indentures were made between the Plaintiff and him, before which Indentures made, the Plaintiff took the Obligation

out of the possession of A. So is it not his deed. This is good, and yet by this general conclusion the matter precedent shall not be waved, for it were perillous to put the special matter in the mouth of the Lay-people.

The Count may be abridged before verdict, so as the original remain true, as in an assise of his Free-hold,* 1.546 and make his plaint of Land and Rent, he may abridge it for the Rent. In an assise of his Free hold in D. and demand two Manors in D. he may abridge his plaint for one. But being of his Free-hold in D. and S. and demand one Manor extending into both, he cannot abridge either of them,* 1.547 for then the writ remaineth not true. In a writ of waste and as∣sign it among other things, in racing of a Copper fixed to the soil, he may abridge the wast assigned in that, so as thereby he fal∣sifie not his writ. But if the writ be Quare vastum fecit in domibus boscis & gradinis,* 1.548 he cannot abridge the waste supposed in domi∣bus. In a writ of ward De custodia terre & he∣redis, and Count of the Manor of D. and 15 Acres of Land, which in truth are parcel of the Manor, and pleaded by the Defend. in abatem. of the writ: he may abridge his demand of the 15 Acres. In trespass de bonis & catallis captis, and count of money ta∣ken away (for which this form will not serve, the money must needs be expressed in the writ) he may abridge the count touching that.* 1.549

Statutes.

21 H. 8. cap. 3. The Demand of a thing intire may be abridged before verdict, though thereby the writ become false. Af∣ter acquittal upon an appeal or indict∣ment of Felony or Treason, he shall ne∣ver be drawn in question for the same of∣fence again. Therefore upon an Indictment of Man-slaughter or Murder,* 1.550 the Justices (by discretion) were wont not to proceed to ar∣raignment till the year and the day were past, for otherwise if he should be acquit upon his arraignment, the parties appeal were lost.

CHAP. 37. Of Trial by Battail.

IN(a) 1.551 writs of right, and in appeals(b) 1.552 that touch life, trial may be by Battail at the Defendants choice. There¦fore(c) 1.553 the Demandant in a Writ of right, had need always to have his Champion rea∣dy, else he may happen to be deceived.

The battail in a writ of right must be all by Champions. Therefore in a writ of right an Infant may joyn the Mise and try it by battail. So can he not in an appeal, for there it must be done in proper person:

which Champions must be(a) 1.554 free-men not villeins, and(b) 1.555 so is the issue taken that he is ready to defend it by the body of J. S. a Freeman. Therefore(c) 1.556 for the Lord to offer his villein for his Champion, in a Writ of right,* 1.557 or in an appeal, is a manumission of him. And the Demandants Champion must have seen him or his Ancestors in possession, and thereof take his oath.

Statutes.

Westm. 1. cap. 40. Touching the Oaths of the Champions it is thus provided, be∣cause it seldom hapened, but that the Cham∣pion of the Demandant is forsworn, in that he sweareth that he or his Father saw the seisin of the land or his Ancestor. And that his Father commanded him to dereign the right, that from henceforth the Champion of the Demandant shall not be compelled so to swear.

The battail in an appral must be in proper person.* 1.558 And therefore there the Defendant is restrained from the choice of battail, and must needs try i•• by Jury. If there be any notorious presumption of the fact in him, as that he brake Prison, or escaped by flight being led towards Priso•• for it,* 1.559 or was(b) 1.560 indicted for it. So in an ap∣peal of Murder, that he was taken in the act with a(c) 1.561 bloody knife, in an appeal of Robbery, that upon fresh sute and hue and cry he was taken with the manner,

having some of the money about him,* 1.562 or of ••••decillity in the Plaintiff, as if he be maymed, or within age, &c.

But against a Peer of the Realm bringing an appeal,* 1.563 the Defendant shall not wage battail, much less against the King, either upon an indictment or appeal. 6 Ric. 2. cap. 6. Ousleth battail in an appeal of Rape.

CHAP. 38. Of Trial by Witnesses.

IN a writ of dower issue taken upon the death of her husband shall be tried by witnesses. So shall no other case in the Law.* 1.564

CHAP. 30. Of Trial by wager of Law.

IN some Cases also the trial shall be by the Defendants oath, which we call waging of his Law.* 1.565 As 1 where the Te∣nant in a praecipe quod reddat alledgeth that he was not lawfully summoned ac∣cording to the Law of the Land, 2 in ••eer personal contracts, we call them sim∣ple contracts, as(a) 1.566 debts for money lent, or

rent upon a lease for years of a stock of sheep, or such like: (but(c) 1.567 not upon 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 intire contract) detinue of a Horse,* 1.568 or other personal thing: but not of a deed indented, or obligation, or of a lease for years of land, nor in an acti∣on upon the case, for it is not by reason of any contract growing without deed, for in debt upon sale of a horse for 10l. if the Plaintiff have a specialty of it, he shall estop the Defendant to wage his Law. But upon detinue and Count of a Baylment by deed, yet the Defendant may wage his Law, for detinue is the cause of the action, which may be discharged by matter en fait, as the Defendants re-delivery, or the Plaintiffs ta∣king of it back again, &c. or privity of o∣thers,* 1.569 for in detinue upon a Baylment by a∣nother mans hand, the Defendant may wage his Law, because he is not to answer to the baylment, but to the detinue. So in debt upon a contract by another mans hand: But not in account upon receit by another mans hand, for there he must answer to the receit: the Defend. may wage his Law. Therefore in such kind of actions Exe∣cutors are not chargeable,* 1.570 as in debt upo•• sale of goods to the Testator, and(b) 1.571 though the party have a tail ensealed of it, for that is no specialty: or for(c) 1.572 wages due by the Testator upon a retainer. Otherwise it is in

such an action brought by a Labourer (who is bound by Statute to serve) in(d) 1.573 debt up∣on arrearages of an account made by the Te∣stator before Auditors, (who are Judges of record) or(e) 1.574 upon a lease for years, though it be made without deed, for in none of these cases the testator could wage his Law.

Prerogative.

No wager of Law shall be against the King.* 1.575 Therefore in an attachment upon a prohibition the party shall not wage his law that he did sue forward contrary to the Kings prohibition, for the King is Quodamo∣do party of the contempt. And for this cause also,* 1.576 debt upon a simple contract shall not be forfeit to the King by out-lawry, for then the party were in worse case then before, where he might have waged his Law.

Statutes.

Magn. chart. cap. 28. Wager of Law shall not be admitted without credible wit∣nesses.

5 H. 4. cap. 8. In actions of debt upon the arrearages of an accompt fayling to the intent (to put the defendants from their law) that the same was found before their Ap∣prentices or servants Auditors assigned in, shall be in the Judges discretion upon exa∣mination

of the Atturnies, or whom e••••e they please to receive, or oust the Defend∣ants of their Law.

3. In plaints in Court Barons for personal things under 40s. yet (by pre∣scription) it may be by Jury:* 1.577 which is a∣gainst the common course and order of it.

CHAP. 40. Of Demurrers.

* 1.578AN Issue of the Law which we call a Demurrer, is when admitting the matters alledged either of them resteth in the judgment of the Law. The form of joyning a demurrer is, Et prad. quer' dicit quod placitum praed. desinimus, suf∣ficiens in lege existit ad ipsum, the Plaintiff, ab actione sua praed. &c. praecluden. quodque ipse ad placitum illud modo & forma placita∣tum necesse non habet, nec per legem terre tenetur respondere, unde pro defectu sufficient. respontio∣nis petit Judicium, &c. Et praed. def. ex quo ipse sufficient. mater in lege ad praed. quer' a•• actione sua praed. versus eum habend. precludend. sup••rius allegavit quam ipse paratus est verifi∣care, quam quidem mater praed. quer' non de∣dicit, nec ad eam equaliter respondet, sed verifi∣cationem illam admittere recusat petit judici∣um, & quod praed. quer' ab actione suo praed. versus eum habend. praecludatur.

This being joyned upon an exception ••ledge•• original it self,* 1.579 or count for some ••ledge•• appearing in it, doth only drive the ••ledge••dant to make a better answer, ••ledge••h we call a respondes ouster, if it pass a∣••ledge••st him.

CHAP. 41. Of Appearance.

THus far concerning Pleading.

The other mean acts are Ap∣••ledge••rance, and Continuance, or Iudicial ••ledge••ess.

Appearance is the parties coming in∣••ledge•• ••he Court. Whereupon(a) 1.580 Common ••y given the fourth day after the very ••y is allowed, and so are all entries, ob∣••ledge••it s•• quarto die post. But is it not upon a ••••rtain day given unto him, as Monday, T••esday, or such like.

When the party for not appearing ••••••ld have some great loss or corporate ••••in,* 1.581 as to have a Charter of pardon al∣lowed where one before was out-lawed at 〈◊〉〈◊〉 sute, at a Sequatur sub suo periculo, when ••he appear not, the land is lost.* 1.582 in a reple∣••••, sicut pluries, when a Capias in Withernam is to go against him, &c. he may appear ••••••ugh the officers return force him not ••it, as if in the two first cases he return a

nihil, or (that the beasts be esloined) in the latter.

* 1.583If the Plaintiff will not appear wh•••• he is demanded at the day, which is calle•• a non Sute, or say in Court that he will 〈◊〉〈◊〉 sue forwards, which is called a retraxit, and alwaies of record, this is peremptory, a•••• loseth him his action. But in real actio•••• brought by many,* 1.584 if one will not prose∣cute the rest may alone. Except in the writ De nativo habendo, that is, favorem li∣bertatis.

* 1.585For executors also Summons and Severance lieth in personal actions.

If the Defend. will not plead, which i•• a nihil dicit, this in all actions, real and per∣sonal, is peremptory, and loseth the actio••.

So in personal actions if he appear, and the(a) 1.586 same term or otherwise, after(b) 1.587 plea or(c) 1.588 demurrer joyned make de∣fault. And this default shall never be saved, how good cause soever he have to excuse it, as fall of waters, imprisonment, &c. for 〈◊〉〈◊〉 appear and plead, and not to maintain 〈◊〉〈◊〉 is a kind of nihil dicit. But either of t•••• parties may for once,* 1.589 for ones common es∣soyne lyeth not after another without me•••• degrees be excused of appearance, by an es∣soyn which lyeth not for him that appea••∣eth in proper person (for it is to excuse 〈◊〉〈◊〉 absence, whereunto his presence is contrary) nor that commeth in by exigent, or Cepi ••••∣pus (for he abideth in ward, or by mainprise and therefore cannot make default) if they

ca•••• an essoyne, that is to say,* 1.590 demand it the ••ledge••rst day, or any of the four days, unless ••ledge•• other cast an exception, that is to say, ••ledge••er an exception that no essoyne be re∣••ledge••shed. And the fourth day the essoyn must ••••••her be allowed (and then it is said to be ••••judged and adjourned) or disallowed. ••et upon every mean appearance a new ••ledge••yn lieth,(a) 1.591 though one were cast be∣fore (for the Plaintiff and the Defendant if they list, may fourch infinitely by the Com∣••on Law.* 1.592) As after issue upon a custom ba∣••••••rdy, or ne unque accomple en loyal matrimo∣••y, at the day of the certifying the Defend. nay cast an essoyn: after essoyn of the De∣mand. if the Tenant at the second day be essoyned, and at the third day demand the ••••ew, and hath it.* 1.593 Now at the day after the ••••ew, he may be essoyned again, and at the day after that the Demand. upon a wager of saw in debt, and day given to do it, if the Plaintiff be essoyned at the day, and at the day given by the essoyn the Defendant be es∣••••yned, now the Plaintiff at the day may ••e essoyned again.

And this is called essoyn de male venir, or ••••e common essoine. Beside which es∣••••ines for special causes, as of being beyond Sea, going ad terram sanctam, of the Kings service, and de malo lecti are allowed. And have(a) 1.594 a year and a daies adjournment, whereupon an(b) 1.595 oath must be taken that the cause is true.

But no such special essoine lieth in an

assise(c) 1.596 of novel disseisin,(d) 1.597 dower,(e) 1.598 assise of darrein presentment, and Qua•• impedit, for then the six months would pa•••• and so the Church come in Lapse, for such essoins must have a year and a days adjour••∣ment. But a common essoyne lyeth in all those caces.

Statutes.

West. 2. cap. 12, In an appeal of the death of a man no essoyne shall lye for the Appellor, for whatsoever cause, in whatso∣ever Court the appeal be.

Westm. 1. cap. 41. In assises and J••i utrum after that the Tenant hath once ap∣peared, he shall be no more essoyned.

Westm. 2. cap. 28. In like manner i•• shall be touching Demandants in an assise.

Westm. 1. cap. 42. Parceners and Joyn-tenants in a praecipe against them shall have 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 Executors, they nor any of them shall have but one essoyne before ap∣pearance, that is to say, the summons or at∣tachment, nor but one after appearance.

Westm. 2. cap. 27. None allowed after the day given by Praece partium, in the where the parties consent to come witho•••• essoyne.

Marleb. cap. 13. After a man hath p••••

himself upon an inquest, he shall have but one essoin.

Westm. 2. cap. 27. After one hath put himself upon an inquest, an essoyne shall be allowed him at the next day, but never after, whether he were essoyned or not.

Mar. cap. 19. None shall need to swear to warrant his essoyne.

West. 1. cap. 43. The Demandant may aver against an essoyne (before Justices) of being beyond Sea, that the Tenant was within the four Seas the day that he was summoned, and three weeks after.

Westm. 2. cap. 17. In an essoyne De ma∣lo lecti, the Demandant may aver by inquest that the tenant is not sick, nor in such plight, but he may come before the Justices. Such an essoyne shall not lye in a writ of right be∣tween two claiming by one descent.

5 E. 3. cap. 7. Essoyne of the Kings ser∣vice, nor protection shall not be allowed in writs of attaint.

12 E. 2. Stat. of essoynes. See many particular cases where essoynes lye not.

CHAP. 42. Of Continuance.

COntinuance is from day to day till the end of the Sute, else(a) 1.599 if the Plaintiff do nothing, it is called a discon∣tinuance: if an error be in the continu∣ing,

as by awarding a Capias where a di∣stress should be, it is called a miscontinu∣ance.

Statutes.

21 H. 3. De anno Bissextili. The day in∣creasing in the leap-year shall be reckoned of the same month wherein it groweth, and that and the day going before shall be ac∣counted for one day.

51 H. 3. Dies communes in Banco. Daies shall be given in writs nine returns, as co∣ming in Michaelmas Term, from Octab. Mich. to Octab. Hillarii, &c.

51 H. 3. Dies communes in Banco, and 32 H. 8. cap. 21. Common days shall be given in real actions nine returns. In Writs of dower five returns.

Marleb. cap. 12. In dower unde nihil habet, four or six daies shall be given in the year.

In Assises of Darrein presentment, and Quare impedit, from fifteen to fifteen daies, or from three weeks to three weeks, as the place shall be near or far.

5 E. 3. cap. 6. and 7. In an attaint five daies shall be given at the least.

* 1.600The sute of an excommunicated perso•• shall be put without day, term paroll sa•••• Jour till he be absolved. And so is it in all other cases which happen without the Plaintiffs folly, as by the demise of the

King, (so we call the death of the King, be∣cause in Law he never dieth, but leaveth his Crown to another) non venuunt. of the Justices, cestor of the eyer, protection, &c.

Statutes.

1 E. 6. cap. 7. By the death of the King no action, sute, bill or plaint shall be dis∣continued, or put without day. But the process, pleas, demurrers, continuances, shall stand good, and be prosecuted in such man∣ner and form, as if the same King had li∣ved. After continuance taken, the Def. may for once leave his former plea, and plead any thing growing since this lat∣ter continuance, which we call a plea puis darrein continuance. As if the Defendant in an action of account plead receit of parcel by the Plaintiff who wageth his Law:* 1.601 now at the day which the Plaintiff hath to per∣form his Law, the Defendant may plead a release puis darrein continuance.

Continuance is by process,* 1.602 or upon the Roll. That upon the Roll is a D••es datus or emparlance Dies datus when the Court giveth the parties day, and therefore in a personal action the Defendant shall not be condemned by default after such a conti∣nuance: for it is the act of the Court, and he doth not demand day as upon an Empar∣lance, and this is always before the Count.* 1.603

Such a continuance by assent of both the parties is called a Praect partium.

So as if the Defendant come upon the exi∣gent by a reddit se,* 1.604 and be by mainprise, yet the Plaintiff may have day by prece partium, notwithstanding that thereby the Defend∣ant shall be let out of ward, for it is by as∣sent of the parties.

* 1.605But in assises the continuance is by a Justiciarii nondum avisantur, and not by a Dies datus.

* 1.606Emparlance is when the Defend. de∣mandeth day to see if he may end the mat∣ter without further sute, which he may do once, but not oftner without the plaintiffs consent: and is always after the Count. After which he cannot plead to the Iuris¦diction,* 1.607 person, or in abatement either of the Count or writ For(a) 1.608 after emparlance a Supersedeas of priviledge out of the Chan∣cery shall not be allowed: he cannot plead that the Land is within the five ports of ancient demesne, &c. or that the Plaintiff is a villein, or(d) 1.609 outlawry in the Plaintiff in debt upon a simple contract, or in trespass of battery or false imprisonment. (But in debt upon an obligation he may, for that is to the action, inasmuch as the King is to have the debt) or that the Plaintiff is an alien,* 1.610 viz. to the person in an action of trespass to his house broken down, but to the acti∣on he may: Nor misnomer as no such Town of D. where he is named J. S. of D. But where a praecipe quod reddat is brought of the Manor of D. in D. there he may,* 1.611 for there it is in bar, or in an action of debt

against an Executor that he is an administra∣tor, and not an Executor. But that he never was Executor, never administred as Executor he may, for that is to the action, nor demand oyer of the obligation,* 1.612 or such like, but he may plead variance after, and so come to have a view of the Obligation and Condition thereof, whereby to plead any matter in bar.

But after a special imparlance Salvis omnibus advantagiis,* 1.613 he may plead to the Count or writ and have oyer, but yet not in that case plead to the Jurisdiction or per∣son.

In an appeal of Robbery, or such like,* 1.614 that toucheth life, if the Defend. plead a plea whereby his life should come in jeopardy, the Plaintiff shall not im∣parle unto it, but must answer Sedente curia.

Default after imparlance, that is, at the day given by the imparlance is peremptory,* 1.615 and loseth the action in all actions whatso∣ever, real or personal, for it is a departure in despight of the Court. As in de••t, trespass, or such like, the Plaintiff in this case shall recover his damages in a praecipe quod red∣dat, if the Tenant appear and imparle, 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 warranty and imparle, and after make default, the Demandant shall recover seisin of the Land against the

tenant, and the Tenant over in value against the vouchee.

CHAP. 43. Of Mesne, Judicial process.

JVdicial Proc. is a Proc. out of that Court where the original is returned prosecuting the action. And therefore upon an original returned tarde, an alias and pluries shall go out of the same Court Teste the chief Justice,* 1.616 for by the return the Court is possessed. But if no return at all be made, the alias and pluries shall go out of the Chancery, Teste Regem. This must be sealed with a seal Judicial, being in the custody of the Chief Justice of that Court.

Iudicial Process are mesne Process, or in nature of new originals.

Mesne Proc. which is for any necessa∣ry act to be done, not only for the Plain. against the Def. but for either of them against any other, whose presence in the Court may be necessary for them.* 1.617 As a∣gainst one that is vouched or prayed in aid of. So against Juries, Witnesses, &c. So to ex∣ecute judgments given, or any thing else ne∣cessary for the trial of any of their allegati∣ons.* 1.618

Vpon a fine levied before it be engros∣sed the writs to compell atturnm. are per

quae Servicia,* 1.619 when the fine is levied of a seigniory.

Quem reddicum reddit,* 1.620 when it is of a tent-charge, or rentseck.

Quid juris clamat,* 1.621 when it is of a re∣mainder or reversion.

Statutes.

23 Eliz. cap. 3. The entry of record of an Atturnment upon a fine shall be utterly void, except the party (mentioned to at∣turn) first have appeared in Court in per∣son, or by atturny warranted by the hand of one of the Justices of one Bench or other, or of one Justice of assise, upon a writ of Quid j••ris clamat, quam redditum reddit or per quae servicia, as the case requireth.

In petitions, whether in Parliament,* 1.622 or elsewhere, and though the King have grant∣ed the lands over, or wheresoever the King being made party, may be at loss: as when he is prayed in aid of, in a praecipe quod red∣dat, or other real action against his lessee, but not in(b) 1.623 trespass(c) 1.624 Ejectione firmae, or other(d) 1.625 personal action, for there he is to lose nothing. A writ of search lyeth, which is to search in the treasury before the plea proceed, if by likelihood some matter may be there to maintain his title. As upon finding by office that A. died seised (of cer∣tain Land holden of the King) without heir, and a traverse 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 treasury, to prove whether A. had issue, no more if the Kings title be by an alienation in mortmain.

Statutes.

14 E. 3. c. 14. In a petition and search granted after four writs, whether any immi∣nent or remembrance be found for the King, or not, the party shall be put to answer. So as every of the four writs be delivered to the Treasurer and Chamberlains forty days before the day of the return.

* 1.626In real praecipes where a free-hold is to be recovered on default, after plea, issue, or demurrer a petty Cape shall go forth in the nature of a grand Cape in all things, save that here the Tenant is to answer the de∣fault only, not to the demand also, as in a grand Cape. And therefore it is called a pet∣ty Cap••, and the other a grand Cape because there is a less in the one than in the other.

* 1.627So upon a voucher a petit Cape advalen∣tiam. In those that are for other heredita∣ments, not in point of seigniory, as(a) 1.628 an∣nuity,(b) 1.629 Quare Imped••t, Quo jure(c) 1.630 quod permittat,(d) 1.631 &c. upon default as before, a di∣stress shall go forth in lieu of a petit Cape. And both there, and upon view granted, day shall be given as in a plea of Land, for it is in the nature of a praecipe quod reddat, in as much as hereby he is to recover the land it self.

The Process against Iurors is first

a Venire facias to the Sheriff to return them, at which day if they appear not,* 1.632 then a habeas Corpora.

And after that a distress infinite.

Statutes.

27 Eliz. cap. 7. No Juror shall be re∣turned without the true addition of the place of his dwelling at the time of the re∣turn, or a year before, or some other ad∣dition whereby he might be known, nor no estrete shall be without such addition as is in the return.

35 H. 8. cap. 6. In every Habeas corpora or distringas with a Nisi prius at the first writ, 5 s. at the least shall be returned in is∣sues upon every Juror, at the second 10 s. at the least, at the third 13 s. 4d. and ever af∣terwards the double of 13 s. 4d.

2 E. 6. cap. 32. If the principal Jury ap∣pear not fully at the nisi prius, those that make default, shall forfeit their issues, though the Jury be made up de circumstan∣tibus.

Where in personal actions upon the de∣fendants default, the Iury shall be taken which we call taking of the Jury by default: In an action of trespass always(a) 1.633 what∣soever the issue be,(b) 1.634 release(c) 1.635 Iu∣stification, &c. So in(d) 1.636 debt, detinue, account, & the rest, which are for things in

certain∣ty, if the issue be taken upon a matter en fait only, as(e) 1.637 payment, or that an(f) 1.638 acquittance pleaded in bar by the Defend∣ant was made by dures. But if it be upon the acquittance it self, release or other mat∣ter in writing, the Plaintiff may there pray judgment if he will. But if he do not pray it, the Jury shall be taken by default, as in an action of Trespass.

* 1.639But in assises of novel disseisin, nu∣sance, mortdancestor, darrein presentm. and juris utrum, the original writ com∣mandeth a Iury, as well as the Defendants, to be warned which Summons to the Jury serveth instead of a venire facias. So that the process here against the Jury is, Somon habeas corpora & Distringas.

And therefore thereupon default after that original process ended, viz. the At∣tachment in an assise of novel disseisin, and nusance, the summons and re-summons in a(g) 1.640 mortdancestor, darrein presentment, and (k) Juris utrum,(h) 1.641 the inquest shall be taken by default, whether the default be pre∣sently after the resummons, or after esloin, or plea pleaded. As it should be taken if the Tenant did appear.

CHAP. 44. Of Judicial process in the nature of new Originals.

JVdicial Process in the nature of new Originals (in none of which any free∣holder shall ever be recovered) but da∣mages only, are these that follow.* 1.642 First such as command to do something, as,

1 Re-summons or Re-attachm. accor∣ding as a Summons or Attachment lay in the first action,* 1.643 to receive in the former plight a sute put without day. And may other revive the original alone, or the whole proceeding by special words, in that Resummons or Attachment, as if it be a∣gainst the Tenant after a voucher, the vou∣cher is not received, unless special mention be of the vouchee also, nor any plea at all is revived but the original only. But in every Resummons after an issue, the issue is revived for day is given to the Jurors expresly: So is all the pleading by a special Resummons, but no such Resummons, nor Reattachment shall be upon a discontinuance, though it be in a Writ of Ward,* 1.644 where a Resummons is given by the Statute, for upon a discontinu∣ance the Original is determined.

* 1.6452 All certificatory writs, as if in a writ of right close brought in antient de∣mesne the tenant vouch a Foreigner to war∣ranty, and after purchase a Warrantia Charta returnable in the Common place against the vouchee, and thereupon a Supersedeas to the Bayliff in antient demesne. Now if the plea of Warrantia charta be determined or discontinued in the Common place, the Demandant in the Writ of right close may sue a Writ out of the Chancery, directed to the Justices of the Common place, to certi∣fie the King in his Chancery of it. To the end that if it be so, the Bayliff in antient demesne may proceed. So upon a Monstra∣verunt sued against the Lord in antient de∣mesne and an attachment thereupon,* 1.646 be∣cause he shall not be driven to answer to the attachment till the Court be ascertained whether the lands be antient demesne, or no: the Plaintiffs in the Monstraverunt must sue a special writ to the Treasurer, and Chamberlains of the Exchequer to certifie it.* 1.647 In like sort upon an Indicavit purchased, because the Tythes amount to the fourth part of the value of the Church, the other may have 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 have a consultation. So upon Surmise made in the Chancery,* 1.648 that the Kings Committee of a ward hath done waste, a writ shall go forth to the Eschetor to certifie the King thereof.

And so in all other like cases.

3 Certiorari to remove a Record out of a Court of Record into the Chancery,* 1.649 for ••o Record shall be removed into the Com∣mon place, nor no indictment taken in the Countrey into the Kings Bench immediately by any Certiorari, but first it must be certi∣f••ed into the Chancery by a surmise, and from thence sent into the Common place, or Kings Bench, as the case is, by a Mittimus.* 1.650 And every writ of Error is a Certiorari in it self.

4 To remove sutes out of Court Ba∣rons, for a Recordare, Pone, or such like, are to no other intent but only to remove somewhat into the Kings Court,* 1.651 and are in the nature of a Certiorari. And upon the re∣move the recordare or pone is determined, for the plea shall not be holden upon them, but ••pon the plaint that is removed, and the first pledges shall stand. And these may be without shewing any cause in the writ, if the remove be at the Plaintiffs sute: but not without shewing good cause in the writ, if it be at the Defendants sute. As being to remove a plea in a writ of right to shew that the Bailiff is heir to the Land,* 1.652 or taketh upon him to maintain the matter to have part of the Land, or that the Te∣nant hath alledged bastardy, or pleaded a foreign plea, or joyned the mise upon the grand assise,* 1.653 &c. being to remove a plea in a replevin, by plaint, to shew that the De∣fendant avoweth for damage fesant, and

the Plaintiff justifietth by reason of Com∣mon of pasture, which is a plea touching Free-hold, and therefore should not be with∣out Writ.

These are either to remove pleas by writ, or by plaint without writ, Of the first sort are a Tolt and Pone.

Tolt or Tollas is for the Plaintiff, but ne∣ver for the Tenant to remove a writ of right out of the Lords Court into the County Court.* 1.654 And because this being at the Plaintiffs sute may be without any cause,* 1.655 therefore this clause is put in every writ of right patent, Et nisi fecer••s vice comes faciat. Pone is to remove into the Com∣mon place in all other cases, viz.(b) 1.656 save only in the case of a writ of right to be re∣moved out of the Lords Court into the County Court. As(c) 1.657 writs of right removed into the County Court by a Tolt(d) 1.658 Justices and Vicontiel Writs in the County Court, replevins by Writ either(e) 1.659 there or(f) 1.660 in any other Court Baron. And all this indiffe∣rently(g) 1.661 either at the Plaintiffs or at the Defendants sute. So upon a(h) 1.662 nativo ba∣bendo sued in the County, if the Defendant alledg himself frank, the Lord is driven to remove it by a pone. But a pone to remove a replevin by writ out of any other Court Baron then the County Court, cannot be without shewing cause, though it be at the Plaintiffs sute.

Of the second sort are a Recordare, and Accedas ad Curiam.* 1.663 In both which nothing

but the plaint shall be removed(a) 1.664 ••••ough they be at issue.

Recordare(b) 1.665 is to remove plaints in County Courts. Every(c) 1.666 Writ of false ••ledge••udgment upon a judgment given in the County Court is a Recordare in it self.

Accedas ad curiam, is to remove plaints in any other Court Baron.* 1.667 (d) 1.668 Eve••y writ ••f false judgment upon judgment given in any other Court Baron then the County Court, is an Accedas ad Curiam in it self.

This also upon good cause shewed in the Writ,* 1.669 lyeth for the Tenant to remove the plea in a writ of right out of the Lords Court immediately into the Com∣mon place.

5 Mittimus to send a record out of the Chancery, whether being certified thither before by a Ce••tiorari, or howsoever else being there into another Court of Record, to the end they may proceed upon it. But the Chancellor may send such a Record by his own hands, without any Mittimus,* 1.670 if it please him.

6 Procedendo to proceed in sutes.* 1.671 As if the Lord upon a Writ of right sued in his Court will not hold his Court, the Deman∣dant may have this Writ unto him,* 1.672 if a man cause himself to be essoyned of the Kings service in any action where indeed he is not in his service, the Plaintiff or Demandant may have this Writ directed to the Justices commanding them to proceed.* 1.673 So where the Justices in any Court delay the Plaint. or

the Defendant, and will not give judgment for him where they ought to do it, the par∣ty grieved shall have a procedendo ad Judi∣cium.

* 1.674Of this nature is a writ of consultation to proceed in the Spiritual Court, when one suing there for matters belonging to that Court, as for matters testamentary, or concerning Matrimony, &c. is by a prohi∣bition restrained to prosecute the sute.

Statutes.

24 E. 1. De consultatione. A Consultation to be awarded by the Chancellor or Chief Justice of the King, upon fight of the Libel at the instance of the Plaintiff.

50 E. 3. c. 4. Upon a consultation once duly granted, the Ecclesiastical Judge may proceed in the same cause notwithstanding any other prohibition. So the matter of the Libel be not enlarged, nor otherwise chang∣ed.

7 A writ of Mainprise to set at liber∣ty one bailable finding bayl,* 1.675 that is to say, sufficient persons to be bound for him as surety to answer the action, which in re∣spect of delivering him into the hands of his friends the Suretie is called Bayl, in re∣spect of their taking of him is called Main∣prise.

* 1.676Such persons baylable be they which are taken upon a Capias original.

But not the Defendant in(a) 1.677 appeal ••f Maym, if the Maym be haynous: nor the principal in an indictment or appeal of Felony,(c) 1.678 nor the accessary after at∣tainder of the principal(d) 1.679 nor any in high Treason, where all be principals.

Statutes.

Westm. 1. cap. 15. Such as are accused of receipt of Felons of commandment, or force, or of aid in Felony done, and a man appealed by approver, after the death of the prover (if he be no common Thief, or defamed) shall be let out of prison by a surety.

8 Recaption is for him whose goods being distreined before for rent or servi∣ces, but not for damage feasant:* 1.680 for there as oft as they are found upon ones Land, it is lawful to distrein them. For every time is a new wrong, and a new trespass,* 1.681 are di∣streined again for the same thing, hang∣ing the plea in the County Court, or be∣fore the Iustices. Though the first distress were lawful, and though the rent or ser∣vice were behind again, or not: for by the first distress he shall have a return till he be satisfied of all.* 1.682 And here the goods di∣streyned, must be the same parties goods. For if the Lord first distreined his Tenant, and after the beasts of a stranger, no re∣caption lyeth. But upon a distress of two mens beasts first, and after the beasts of

one,* 1.683 it lyeth for that one: so upon a distress of beasts which a man hath in common with another, and after of such beasts as are his own alone. Also he that taketh the second distress must be the same par∣ty that distrained first: as if the Lord distrained first, and then his servant or Bayliff distreineth again by his command∣ment, or without his commandment, if he agree afterwards to it, as by joyning with his S••rvant or Bayliff when they pray in aid of him. Otherwise not, though the Bayliff make conisance in his right: for it may be he hath no notice of it: and the party hath remedy against the B••yliff if by an action of trespass. But this writ lyeth not after Non Sutes in the replevin,* 1.684 because there the plea is not hanging: but before avow∣ry in the replevin it doth, for the Plaintiff in the recaption may well count that the Defendant took them for the same cause: And that may make a good issue, which the Inquest may take notice of well enough by the evidence of the parties.* 1.685 But upon a Replevin sued by plaint or writ in a Fran∣chise, and not before the Sheriff or the Kings Justices, no recaption lyeth, though he be distreined by the same party again, and for the same cause, for the King will not direct this writ but to the Sheriff▪ But if the sute be removed before the Justices by a Pone or Recordare, there a recaption lyeth as well for a distress before the Pone or Re∣cordare, as afterwards. And here the Plain∣tiff

shall recover damages for the second taking only, because it is a contempt a∣gainst Law, for which the Defendant shall be fined if he be convict before the Justices, or amerced, if the conviction be before the Sheriff, but shall recover no damages for the taking nor the detaining of the beasts. And therefore here the Defendant shall not make avowry, as he should in a Replevin, but only may justifie the taking, as in an action of Trespass.

9 A writ De magna assisa eligenda to the Sher. to summon four Knights to choose the grand Assise,* 1.686 when the mise is joyned thereupon in a writ of Right.

And this is a meer judicial 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 original writ out of the Chance∣ry.

10 A Certificate De Assise upon a ver∣dict given in an assise that is not perfect,* 1.687 whether not well examined by the justices, or not fully inquired of by the Jury, to bring in the same Iurors to give a more perfect one. And this must be sued in the same Coū∣ty where the assise was sued,* 1.688 and may be as well before other Justices, as those that took the assise: if the Kings Bench, or Com∣mon place be in the County where the As∣sise passed, then this writ may be sued there.

And beside the writ it self directeth to the Sheriff,* 1.689 the Justices must have a Patent made unto them as in the assise it self.

* 1.69011 Proprietate Probanda unto the She∣riff to inquire whether the property be to the Plaintiff or Defendant, when upon a replevin sued, the Defendant claimeth property, which determineth the Sheriffs power to make Replevin.

And this also may be meer judicial issu∣ing out of the Kings Bench(a) 1.691 or Com∣mon place,* 1.692 (b) 1.693 and returnable there.

Secondly hither belong those that be prohibitory, or restrain from doing some∣thing where the prohibition it self is in lieu of a Sum. And after that the process is an attachm. and distress. So in every writ whi••h is on a prohibition broken, as a quare non admisit,* 1.694 quare incumbravit: for every breach of prohibitiō is a contempt in it self.

Of this sort are

1 Prohibitions to restrain the party from suing in an inferior Court, that ought not to hold plea of it: As in the spi∣ritual Court, for(a) 1.695 any plea that concern∣eth not matrimony and wills, as for goods or debts, &c. and(b) 1.696 though it be of matters for which the Plaintiffs have no remedy by the Common Law, as of a Covenant broken without specialty, or debt, &c. against exe∣cutors upon a simple contract made by their Testator. Or Pro laesione fidei a∣gainst one which hath waged his Law

in an action of debt upon a simple contract and sworn falsly.* 1.697 So if the Bayliff in a Court Baron hold plea of matter above xls. the Defendant may have a prohibition. And these prohibitions may be directed to the Judge himself, not to hold plea in those cases, as well as to the Sheriff, to restrain the party from suing.

Such a prohibition is an Indicavit for the Def. patron when the right of avowson of any part of ones tythes is in demand in the spiritual Court, between two Clerks claiming from several patrons. So as the Indicavit is alway between four persons, whereof two are patrons,* 1.698 and the other two Clerks. One claiming to hold of the avowson of one patron, the other of the other patron, for an avowson being a lay hereditament, wheresoever the patronage should come in question the Common Law is to decide it: But where that is not to come in question,* 1.699 the Spi∣ritual Court shall decide it, by suit in that Court called spoliation. As a person accep∣ting another Benefice, or created a Bishop, and having a dispensation to keep his per∣sonage, shall have a spoliation in Court Christian against another Incumbent present∣ed by the patron, and then shall come in debate whether they have plurality or dis∣pensation, or no.

And this Indicavit lyeth though it be but the right of the twentieth or thirtieth part of tythes that is in demand,* 1.700 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 have an In∣dicavit to be of tythes to the value of the fourth part of the Church at least. But be∣fore that, it might have been of the twenti∣eth part, and the patron thereupon might had a writ of right, whereupon at the Com∣mon Law there was a writ of the avowson of the tythes of v acres or x acres, or one acre. But now since by the same Statute an Indicavit shall not be granted of less then the fourth part, therefore there is a writ of the avowson of the tythes of the fourth or third part. But at the Common Law there was no such writ.

Statutes.

Westm. 2. cap. 5. When the Parson of any Church is disturbed to demand tythes in the next Parish by a writ of Indicavit, the patron of the Parson so disturbed shall have a writ to demand the avowson of those tythes. And after the Plea deraigned in the Kings Court, then it shall proceed in the Court Christian.

18 E. 3. cap. 7. pro clero & c. 47. Writs of Scire facias to answer of dismes in the Chancery, and to shew why such dismes ought not to be restored the Demandants shall not from henceforth be granted. Sa∣ving the Kings right as he and his ance∣stors

were wont to have.

2.* 1.701 A Supersedeas to stay any further pro∣ceeding in the suit. As if a writ of Trespass ••i & armis be brought in a Court Baron, if upon a writ of right close brought in anti∣ent demesne, the demandant and tenant put themselves upon the grand assise, or the Tenant vouch a foreynor, or plea a forein plea which cannot be tried there, if a Clerk of the Chancery or any of the servants of the Chancellor,* 1.702 or Lord Keeper of the great Seal be sued in any other place for a trespass or other matter.

Of this nature are, a writ of peace for the Tenant upon a writ of right brought in the Lords Court,* 1.703 vouching one to war∣ranty out of the power of that Court, we call it a foreign voucher, or joyning the mise upon the grand assise to have the matter respited till the Iustices in Eyer come thither, which if he bring not at the nex•• Court day, after such voucher or mise joy∣ned, he loseth his tenancy, the reason is, be∣cause the Lord cannot make a grand assise to come. But if battail be joyned,* 1.704 that shall be determined there, and after such a writ brought the plea may proceed by leave of the Justices. As if the vouchee come before them and enter into warranty, they may award that he shall go to the Court of the Lord and there warrant to the party that vouched him,* 1.705 and assign a day certain of the Court, and also give leave and power to the Lord to hold his Court.

De libertate probanda for the Defendant upon a Nativo habendo sued in the County,* 1.706 claiming to be frank to the Sheriff to ad∣journ the plea before Iustices in Eier. And therefore must be brought before any pone delivered by the Lord to the Sheriff to remove it.* 1.707 And this is a Supersedeas to the Lord not to proceed till the day of adjourn∣ment, nor to ceise the villein, till the plea discussed.

Statutes.

25 E. 3. c. 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 sute agninst another of the same name.* 1.708 As if he be taken by a Capias or Exigent a∣warded against the other, or distreined by process out of the Exchequer. And this Writ shall be either to the Escheator or Sheriff 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 be∣ing in his service taketh him, for the Plain∣tiff can never have a protection from him,* 1.709 unless it be in special causes where the Pl. doth become Defendant,* 1.710 into his protecti∣on for one year to be free from all suits.

Writs of dower, Quare impedit,* 1.711 assises of novel disseisin, and pleas before the Iu∣stices in Eyer are accepted. Therefore it shall for that time save all defaults.* 1.712 So as upon a protection (cast in a plea personal) at the Nisi prius, and repealed at the day in Bank, yet the inquest shall not be taken by default, for the default was once saved. Otherwise it is of a protection disallowed at the day in Bank.* 1.713 And a man may excuse his fault at a Grand cape, or petit cape by casting of a protection. But a protection can indure no longer than for one year, for otherwise it might be for xx. xxx. or C. years, and by the same reason for a thou∣sand years, which were a great inconveni∣ence and disherison to the party. But a pro∣tection for one year is not so, for after the year ended he may have a resummons and proceed in his suit: yet the King after the first year ended may take him again into his protection for another year, though it be space of ten or twenty years together, for in that case appeareth at the first no mischief nor inconvenience, as there doth when he taketh him into his protection for so many years at once.

Statutes.

5 E. 3. cap. 7.* 1.714 No protection shall be allowed in Writs of Attaint.

This kind of protection is double. Pro∣tectio quia profecturus, when he is to go be∣yond

sea in the Kings business.

* 1.715Protectio quia moratur, when he stayeth there about it. Of which nature is also a protection quia in prisona, when being sent beyond Sea in the Kings warres he is there taken and detained in prison. The going or staying about the Kings business in the marches of Scotland,* 1.716 or such like pla∣ces as is counted as beyond Sea. But a Pro∣tection, quia moratur super altum mare, is not good, for it cannot be intended that he doth abide there.

Statutes.

13 Rich. 2. cap. 6. A protection in re∣spect of going beyond the Sea disallowed (except it be in voyage Royal, or business of the Realm) where it beareth date after the sute commenced. And the Lord Chancellor hath authority to appeal it, if he go not in convenient time, when he returneth.

A Stat. of protection, 33 E. 1. Aver∣ment is given against petition for the Kings service.

1 Ric. 2. cap. 8. Protection (volumus) not allowable for victual taken or brought upon the voyage or service, whereof the protection maketh mention, nor in trespas∣ses and other contracts made after the date of the same protection.

Prerogative.

The King may take his Creditor into his protection,* 1.717 that no other Creditor shall sue or arrest him, till the King be sa∣tisfied, which is also a protection cum clau∣sa volumus.

Statutes.

25 E. 3, cap. 19. A Creditor shall have an action and judgment against the Kings debtor, notwithstanding such a protection. But not execution, unless he take upon him to pray the King, and then he shall have Judgment and Execution of both debts, as well of that due to the King as to himself.

He may also by a writ called Warrantia diti,* 1.718 rehearsing that one which should ap∣pear in proper person, Whether it be the Plaintiff or Defendant, is in his service, wil that for one day no default be recorded up on him. So as if the tenant in a praecipe quod reddat make default at the grand Cape, or petit cape: yet before Judgment upon that default, the King by his writ may make that it shall not hurt him. And this standeth with reason, because every man is bound to serve the King in his affairs. Neither is it material whether he be in the Kings service or not, when the King certifieth that he is: for it seemeth by the words of the Writ, that the King by his prerogative may for one day warrant his default. And this writ cannot be granted but by the King himself.

* 1.7194. Essoyn De malo lecti, is a writ to warrant an essoyn of lying sick a bed cast by the Tenant in a writ of right: Command∣ing four Knights to see him, and if he be sick to give him day at the end of the year and the day for so long adjournment is in that essoyn.

Statutes.

Westm. 2. c. 17. In an Essoyn De malo lecti the Demandant may aver by inquest, that the Tenant is not sick, nor in such plight but that he may come before the Ju∣stices. Such an Essoyn shall not lye in a writ of right between two claiming by one descent.

* 1.7205. A Ne admittas for either party, Plain. or Defendant, in a quare impedit, or assise of darreign presentment to the ordinary, not to admit the others Clerk till the matter be discussed.

* 1.721And this must be sued within 6. months and not after, for after the six moneths it is lawful for the Ordinary to present by lapse but being sued within the six moneths the Ordinary may neither himself(b) 1.722 collate within six moneths (but after∣wards by lapse he may) nor(c) 1.723 admit the others Clerk at any time,(d) 1.724 though it be after the six moneths, and though it be found for him by a Jure patronatus, which is a commission that the ordinary may grant to inquire who is the right patron.

6.* 1.725 A quare incumbravit for him that sueth a Ne admittas, and after recovereth in a Quare Impedit, or assise of darrein present∣ment, though it be after the six moneths, but before recovery no quare incumbravit lyeth against the Ordinary for incombring the Church, contrary to the ne admittas.* 1.726 But of a collation or admittance before a ne ad∣mittas sued, no quare incumbravit (but only a quare impedit) lieth, for the Ordinary can have no notice till the ne admittas.

But no ne admittas, nor quare incumbravit lieth in a writ of right of avowson,* 1.727 though the Church become void hanging the writ, and the Bishop do incumber it, for the De∣mandant there shall not recover the pre∣sentment but the avouson. And if he have title to present, he may present, and upon disturbance have a quare impedit.

CHAP. 45. Of Judgments.

THus far of Suit.* 1.728 Iudgment is the Courts final determination of that suit.

Vpon Iudgment against the King in a petition, he is presently out of possession. And therefore every Judg∣ment is in it self a moveas manu, or an ouster remaine. In a writ of right the Iudgment after issue joyned is final on either side,

not only when it passeth by verdict, or vanquishing of the others Champion, but where the Demandant is(c) 1.729 non suit, or the(d) 1.730 Tenant maketh default, or the(e) 1.731 vou∣chee after such an issue joyned by him, de∣parteth in despite of the Court, &c.

Prerogative.

Against the King Iudgment is not fi∣nal, but is always with a Salvo jure Regis.

* 1.732Recoveries in a writ of right bind all strangers not claiming within the year. As being suffered by a disseisor, it bindeth the disseisee by his non claim. Tenant for life suffering a wrongful recovery, it shall prejudice his right that hath the inheri∣tance,* 1.733 though he be prayed in aid and make default. for no aid prayer is necessa∣ry, in as much as the other being tenant of the freehold, a recovery is good against him. But that after the death of Tenant for life,* 1.734 he may falsifie it by action of Ad terminum qui praetexiit, or writ of right which we call falsifying of recoveries. But he cannot enter,(a) 1.735 neither can lessee for years at the Common Law falsifie for having but a Chattel derived out of a free-hold, there is no reason he should falsifie a recovery which draweth the fee-simple out of the Lessor. Also the present estate upon which the Lease depends being destroyed, the Lease must needs be extinct.

Statutes.

14 Eliz. cap. 8. Every fraudulent reco∣very against any Tenant for life, or where∣upon any tenant for life, or he that hath right to estate for life is vouched, shall be void against him in the reversion, or in the remainder, unless it be by his own assent appearing by record.

21 H. 8. cap. 15. Termors for years or in by execution of Statute Staple, Statute Mer∣chant, or Elegit, may falsifie recoveries on∣ly for their own Term in such sort as Te∣nants of the freehold, neither party nor privie to the recovery might at the Com∣mon Law.

In a writ of Dower by gardein in soc∣cage against gardein by Knight servite,* 1.736 she shall at his prayer be adjudged to en∣dow her self wholly of the Land in soc∣cage. And this is called Dower de la plus ••eale. But such dower shall not be where the woman is gardein en fait by Knight ser∣vice,* 1.737 nor where all the husbands Lands were holden in soccage, and she brings her writ of dower against the heir: nor where she brings it against her husbands feoffee with warranty, for he may vouch the heir.

A debt acknowledged in Court of Re∣cord either to the K. or to a Common, is in the nature of a Iudgment, and called a

Recognisance. And therefore such a matter acknowledged by an Infant, cannot be avoid∣ed but during his nonage only. As a(a) 1.738 fine by writ of error,(b) 1.739 Recognisance, Statute, or such like, by an Audita querela: for it shall be tried by Inspection of the Court, whether he were within age, or no.

In appeals of(c) 1.740 maym, indictments or appeals of(d) 1.741 felony, the accessory shall not be compelled to answer ill attainder(e) 1.742 of all the Principals, by verd. outlawr. or though it be by taking him to his Clergy, or abjuration. So as if the Principal die(f) 1.743 or have his(g) 1.744 pardon before, or if two men be indicted, one as principal, the other as accessary,(h) 1.745 and the principal be afterwards attainted of another felony and hanged: the accessary shall be discharged. And(i) 1.746 if one of the principals be not attainted, the Accessary shall not recover damages against the Abettors, for he is not legitimo modo ac∣quietatus. But in case of high Treason all offenders are accounted principals, and there is no accessary at all.

* 1.747He that is or by possibility may be within orders, for one being within orders (if he shew them, or the ordinary certifie so much) shall have his Clergy, whether he can read or no. Otherwise he must be able to read a verse, namely, a Deacon at the least, have the benefit of his Clergy, save him either from Judgment when the Clergy is prayed before, or from execution

if it be prayed after, if he be found culpable by verdict, or his own(k) 1.748 confession either ••ledge••efore the Coroner, or the Justices of any ••ledge••a••, felony, where life or member is to be ••ledge••st, be it upon an indictment or appeal, ••ledge••t(l) 1.749 not for killing a man by misfortune, ••ledge••t se defendendo, or yet for petty Larceny ••ledge••or in these cases he is not to have Judg∣••ledge••ent of life or member. No more in case of ••ledge••igh Treason, or petty Treason. And such a(m) 1.750 Clerk might indeed by the antient ••ledge••aw have had his Clergy before he were ••ledge••dicted. But now he shall not have it upon ••ledge•• arraignment, unless he plead to the felo∣••ledge••y and be found guilty: for otherwise he ••ledge••ould lose his goods by an inquest of office, ••ledge•• which he would have no challenge as ••ledge••e may have to this. But yet he may ••ledge••ive this benefit and pray his book after ••ledge••e inquest, and before their coming back. ••ledge•• which case notwithstanding, the ver∣••ledge••ct afterwards shall be taken. And that ••ledge•• in favorem vitae: because if the Jury find ••ledge••im not guilty, he shall be charged. And ••ledge••is possibility (there being no other im∣••ledge••diment) as if it be a woman, a blind, or a ••ledge••aimed man, shall be tried by the Iudges. ••ledge••d therefore if the Ordinary challenge ••ledge••im, where he readeth not as a Clerk, he ••ledge••e shall be fined and the party hanged.* 1.751 Or if ••ledge••e refuse him when he doth read as a Clerk, ••ledge••e Ordinary shall be fined, and the par∣••ledge•• discharged, for the Court are Judges ••his reading. And the Ordinary is there

only to challenge him for his Clergy, for the entry is Legit ut Clericus ideo tractatur ordi∣nario,* 1.752 by his ableness to read a verse, though he cannot read without spelling. But if he can read but here a word and there a word, and not three words together, quae∣re whether that be sufficient.

Clergy in the delivering of him to the Ordinary to be kept in prison.

* 1.753If it be before Iudgment, in which case we call him a Clerk convict, he shall be tried there by a Iury of Clerks.* 1.754 And therefore purging himself shall go at large. Therefore is a writ to command the Ordinary to admit him to his purgation. Not purging himself, but being found culpable by those Clerks, he shall be on∣ly degraded.

* 1.755But upon an appeal of Robbery, or such like, no purgation shall be admitted. The Reason seemeth because then the Plain∣tiff in the appeal should recover his goods without cause, when by the purgation it did appear that the other was not guilty of the felony.

* 1.756A Clerk convict shall not answer to any offence committed before.

Prerogative.

* 1.757A Clerk convict forfeiteth his Chat∣tels: And shall never have restitution, though he make purgation. Notice must be given to the King of the time before the

party make purgation.* 1.758 If the Clergy ••ledge••e after Iudgment, in which case we call ••ledge••im a Clerk attaint, he shall remain in per∣petual prison.

Statutes.

25 H. 8. cap. 3. Revived. 5 E. 6. c. 10. One arraigned upon an Indictment of petty Treason, willful burning of houses, Murder, ••ledge••obbery, or other Felony, according to the ••ledge••eaning of the same Statute, if he stand ••ledge••ute of malice, or froward of mind, or chal∣••ledge••enge peremptorily above 20, or will not di∣••ledge••ectly answer, shall lose his Clergy, in such ••ledge••anner as he should, if upon the arraign∣••ledge••ent he had been found guilty.

25 E. 3. pro clero, cap. 4. Convict of petty Treason shall have it.

18 Eliz. c. 6. None in Felonious Rape, Ravishment, nor Burglary.

18 Eliz. cap. 6. None in carnal abusing a woman within ten years of age.

25 H. 8. cap. 6. 5 Eliz. cap. 17. None ••ledge••n Buggery.

5 E. 6. cap. 9 None for him that rob∣beth any person in any part of his dwelling booth, or Tent, in any Fair, or Market, him∣self, his wife, children, or servants then be∣ing there, or within the precinct thereof, either sleeping or awake.

4 And 5 Ph. and Mar. c. 4. None for him that maliciously commandeth or hireth any to commit petty Treason, or wilfull Murder, or Robbery in any dwelling house, or Inne, or near any high way, or within the marches of England against Scotland, or wil∣fully to burn any dwelling house, or any part thereof, or any Barn having Corn therein.

25 H. 8. cap. 3. and 5 E. 6. c. 10. He that doth a Robbery or ••urglary in one County, and is taken with the goods so rob∣bed or stoln, in another county, shall lose his Clergy there, as he should do where the Robbery or Burglary was committed.

4 H. 7. cap. 13. 1 E. 6. cap. 12. Grant∣able but once to one person, except he be within orders.

4 H. 7. cap. 13. He that asketh his Cler∣gy the second time shall at a day certain bring his letters of order, or certificate.

4 H. 7. cap. 13. He that asketh his Cler∣gy shall be marked in the hand with an M. if he were convict of Murder, with a T. if he were convict of other Felony.

1 E. 6. cap. 12. Lords of the Parliam. in all cases where Clergy lyeth at the Com∣mon Law, or is restrained by Statute, shall upon his prayer be adjudged as a Clerk con∣vict hough he cannot read.

8 El. cap. 4. and 18 El. cap. 7. After purgation he shall be put to answer to any such offence (committed before his ad∣mission to the Clergy) whereupon Clergy is not allowable, and whereof he was not be∣fore indicted and acquitted, convicted, or attainted, or pardoned, and shall be demean∣ed in all things, as if he had never been ad∣mitted to his Clergy.

18 El. cap. 7. He that is allowed Cler∣gy shall not be delivered to the Ordina∣ry, but after burning in the hand shall be de∣livered forthwith by the Justices out of pri∣son: yet for further correction, they may de∣tain him in prison, so that it be not above a year.

Outlawry is a Iudgment, which in case of criminal offences we call an Attain∣der in it self. So as he which is indicted of trespass and outlawed shall pay a fine, he which is outlawed for felony, forfeiteth his lands and goods; and this fine and forfei∣ture remaineth though he purchase a Char∣ter of pardon afterwards. And there is a Writ of Eschete of Land for Felony pro qua utlegatus fuit.

So is abjuration an Attainder in it self (and(a) 1.759 that the strongest that can be, ••e∣ing by his own confession) and a(b) 1.760 forfei∣ture of his Lands. And there is a writ of Eschete of Land for Felony, pro qua abju∣ravit regnum And therefore(c) 1.761 he that is hanged upon Judgment against him, and becometh alive again, cannot abjure (but

an abjuration in that case is in escape) for one cannot have two Judgments for one offence.

* 1.762The offender upon a presentm. in the Leet or Sheriffs turn shall be amerced.

The Def. in an appeal of Felony, being acquitted shall have judgment also to recover damages against the Plaint. And if the Plaintiff be not sufficient, then Common Law and Common Reason will, that he recover his damages against those that procured or abetted the Plaintiff to pursue the appeal. But these damages a∣gainst the procurors or abettors were to be recovered at the Common Law only, by writ original that is to say, by wtit of con∣spiracy, and not otherwise.

Statutes.

Westm. 2 cap. 12. One being acquitted upon an appeal, or indictment of Felony, may have the abettors inquired and have a Judicial writ for his damages against, if the appellant be not sufficient.

8 H. 6. cap. 10. An action upon the case given for him, that is duly acquit by verdict against every procurer of any Judgment or appeal of Treason, Felony, or Trespass. And like process shall be therein, as in a writ of Trespass, vi & armis.

The Plaintiff recovering shall be al∣lowed his costs of sute.

CHAP. 46. Of Judicial Writs to execute Judgments.

THese Judgments have their Judicial Writs belonging to ••hem, both meer Judicial Writs, for the execution of them, and new originals in the nature of Judicial Writs, to undo some matters concerning Judgments.

Meer Iudicial Writs in real or perso∣nal actions, are either such as lie only within the year and day afer the Iudg∣ment rendred or a scire facias.

Those of the first sort are between the parties to the recovery, for otherwise though it be within the year,* 1.763 he that reco∣vereth is driven to his scire facias, as if it be for debt or damages recovered against a feme sole,* 1.764 who afterwards taketh a hus∣band, or by or against ones Predecessor or Testator, and in the same Court where the recovery was, for if the Record of a Reco∣very in an assise of novel disseisin be remo∣ved within the year into the Chancery by a Certiorari, and from thence to the Com∣mon place by a Mittimus, or removed by Writ of Error out of the Common place in∣to the Kings Bench, and the Judgm. affirmed within the year, yet the party is driven to a scire facias. So if a fine executory be remo∣ved

out of the Common place into the Trea∣sury, and come back by Certiorari and Mit∣timus, within the year no execution shall be by an habere facias seisinam, but by Scire faci∣as only. But although the Judges of the Common place should all dye within a year after the Judgment, and other Justice be chosen, yet in that case execution might be well enough without a Scire facias; for it re∣maineth still the same Court, or if the Ju∣stices in Eyre come into the County, where one hath recovered before the Justices of Assise, they may award execution by a Sci∣re facias within the year.

Of this kind are upon recovery in real or mixt actions.

* 1.765Habere facias seisinam to put him in pos∣session upon a free-hold recovered, in an assise, praecipe quod reddat, &c.

Habere facias possessionem, upon a Term for years recovered, as in an Ejectione firmae, &c.

* 1.766A writ to the Bishop to admit ones Clerk upon a presentment recovered, in a Quare Impedit, or assise of darrein present∣ment: If the sute be against the Bishop him∣self, then this writ may be to the same Bi∣shop, or to the Metropolitan at the parties choice.

* 1.767Those upon a recovery in personal acti∣ons, are of two sorts, either to have exe∣cution of the profits of his Land, and Chattels, or a Capias ad satisfaciendum.

But in Court Barons Execution is

only by distress,* 1.768 and impounding till the party be satisfied: for they have no power to sell or deliver the distress to the party, neither doth any execution by the body lye there.

In those of the first sort execution shall be of any(a) 1.769 land which the party had day of the Iudgment rendred, but for(b) 1.770 chattels (though it be(c) 1.771 leases for years) only those which he had day of the execu∣tion sued.(d) 1.772 So as if he sell his goods bona fide, after Judgment, and before the writ of Execution sued forth, those goods are not liable to the execution, or if a writ of ex∣ecution be sued forth and never returned, and after the Defendant alien his goods, and then the Plaintiff purchaseth another writ which is returned, yet execution shall not be of those goods, for writs which never are returned are not of record, nor of any force at all. But an alienation made after the Teste of that second Writ had been no∣thing worth.

Of this kind are a Scire facias, and a laevari facias. Fieri facias to levy execution of his goods and chattels only.* 1.773 Levari fa∣cias to levy execution of the profit of his land and Chattels. The form is, Praedicta pecuniam de terris & catallis praedicti (the De∣fendant) levare facias, Ita quod ea habeas in eti' tali die praefat. (the Plaintiff) delibe∣rand. And this having words that he shall le∣vy the money of his Lands and chattels, it seemeth that the Sheriff may take the Rents

payable by the Tenants in execution of the debt, but not to seise the Land, and deli∣ver it to the party.

Statutes.

Westm. 2. cap. 18. He that recovereth debt or damages in the Kings Court, may at his choice have a Scire facias of the Land and Chattels of the Debtor, or a writ for the Sheriff to deliver him all the Chattels of the Debtor (except Oxen and plow-beasts) and the moyety of his Land by a reasona∣ble extent, till the debt be levied. And if he be ejected out of the Land, he shall have an assise; and afterwards a writ of re-dislei∣sin if need be.

11 E. 1. Stat. Action Burnel. A debt acknowledged to a Merchant, before the Mayor of London, York or Bristol, or be∣fore a Mayor or Clerk (appointed by the King thereunto shall be enrolled. And if it be not payed at the day, the debtors moveables shall be prised, and sold in satis∣faction by the Mayor, if he have any with∣in his jurisdiction, else by writ out of the Chancery upon a Certificate of the Recog∣nisance thither. The Prisors to take them of the price if they prise too high, if they have not moveables sufficient, then he shall be imprisoned till, &c. The like process against pledges, in default of sufficient moveables of the principal.

13 E. 1. Stat. De mercatoribus. A debt acknowledged to a Merchant before the Mayor of London, or chief Wardein of a Town, which the King shall appoint, or other sufficient men when they cannot at∣••ledge••end, and before a Clerk which the King ••ledge••hall assign, shall be inrolled, and if it be not payed at the day, the Debtor, if he be a Lay-man shall be imprisoned by the Mayor ••ledge••ill, &c. if he be within their power, else by Writ out of the Chancery upon Certificate of a Recognisance thither. And if he agree with the Creditor within a quarter of a year after, then all the Lands which were the Debtors, day of the Recognisance made, and also his goods, shall be delivered to the Cre∣ditors on a reasonable extent. And of these ••ledge••ands so delivered, the conisee being ousted, ••ledge••hall have an assise or re-disseisin.

The writs out of the Chancery shall be returnable before the Justices of either Bench, and upon a Non est inventus returned, or that he is a Clerk, writs to all the Sheriffs where he hath Lands or goods, shall go forth ••ledge••o deliver the same upon reasonable extent, ••ledge••nd to what Sheriff he will to take his body.

The like process shall be against the pled∣ges, if the money be not payed at the day.

If the debtor or pledges die, the Creditor shall have execution upon the Lands of the the heir at his full age.

27 E. 3. c. 9. The Mayor of the Staple shall take Recognisance of debt before him∣self

and the Constable of the Staple, where∣upon default of payment being made, the debtors body shall be imprisoned, and his goods sold in satisfaction (if they be with∣in the Staple) else upon a Certificate in the Chancery, a Writ shall go out from thence to imprison their bodies, and seise their lands and goods which shall be return∣ed in the Chancery, and Execution there∣upon in all respects, as in the Satute Mer∣chant: Save that the Debtor shall have no advantage of the quarter of a year.

5 H. 4. cap. 12. A Statute being once shewed in the Common place, and the pro∣cess afterwards discontinued, yet execution may afterwards be awarded without shew∣ing it again.

11 H. 6. cap. 10. He that is in prison up∣on a Recognisannce, shall not be delivered out of prison upon a Scire facias against the party and surety thereupon found to the King alone, but shall find sureties severally as well to the King as to the other party.

23 H. 8. cap. 6. Either of the chief Ju∣stices, or in their absence out of the Term, the Major of the Staple of Westm. with the Recorder of London may take Recognisan∣ces. And they shall be executed in all re∣spects as a Statute Staple.

27 Eliz. cap. 4. Every Statute Staple, or

Merchant, not brought to the Clerk of Re∣••ledge••nisances within four moneths next after ••ledge•• acknowledging, to enter a true copy ••ledge••ereof, shall be against all persons, their ••ledge••its, successors, executors, administrators, ••ledge••nd assigns only, which for good conside∣••ledge••d on shall after the acknowledging of the ••ledge••e Statute purchase the Land, or any part ••ledge••ble thereunto, or any Rent, Lease, or pro∣••ledge•• of it.

32 H. 8. cap. 5. Lands lawfully delive∣••ledge••d in execution upon a judgment of Re∣••ledge••isance, being evict. without any fraud or ••ledge••fault in the Tenant before he have levi∣••ledge•• the whole debt and damages, the Reco∣••ledge••er and the Recognisee shall have a Scire ••ledge••ias out of the same Court where executi∣••ledge•• was awarded, returnable there full for∣••ledge•• days after the date. And thereupon a new ••ledge••it of Execution of the nature of the for∣••ledge••er to levy the rest of his debt and dama∣••ledge••, if the Defendant make default, or shew ••ledge•• good matter in Bar.

Magn. chart. cap. 8. The King shall not ••ledge••e the lands or rents of the debtors, if he ••ledge••e sufficient chattels.

Magn. chart. cap. 18. T••e goods of ••ledge••e Debtor may be attached after his death ••ledge•• the view of lawful men. That nothing ••ledge••ll be medled with till the Kings debt be ••ledge••yed.

33 H. 8. cap. 39. All obligations to th••redge•• King shall be of the force of a Stat. Staple.

Prerogative.

The King may have a distringas to le••redge••¦vy an amercement, or such like, by distres••redge•• and sale, whether it be an Amercement i••redge•• the Leet or Sheriffs turn, or o herwise.

* 1.774A Capias, ad satisfaciendum is to tak••redge•• hi•• ••ody in execution, for sati••fying of th••redge•• par••y. And this is always upon a reco∣very in a personal action where a Capia••redge•• lay. Therefore it lyeth not in any real acti∣on as in a Writ of dower, or other praecip••redge•• quod reddat, nor at the Common Law i••redge•• debt, detinue, account, &c. but in action••redge•• of Trespass,* 1.775 and such like. And here an ex¦igent shall be awarded upon the first Capi¦as, for if he were taken by the Capias, h••redge•• should pay unto the King a fine for a Tres¦pass adjudged against him.

Prerogative.

Of this nature are two special Writ••redge•• by the Kings Prerogative, Capias pro fi¦ne Regis, and capias utlagatum.

* 1.776Capias pro fine Regis, when the party i••redge•• adjudged to pay a fine unto the King.

* 1.777Capias utlagatum, to take one outlawed, which is a kind of Judgment and determi∣nation of the Original Writ as appeared be∣fore.

These are the Iuditial Writs within ••ledge•• year and day.

A Scire facias,* 1.778 which lieth after the year ••ledge••d the day, is to warn the Defendant ••ledge••on recovery in real actions, for in per∣••ledge••nal actions debt only lay after the year, ••ledge••hich is a new original till Westm. 2. cap. 45. ••ledge••e a Scire facias, to shew cause why the ••ledge••laint. should not have execution. There∣••ledge••re here the Defendant may plead matters ••ledge••owing after judgment rendred to oust the ••ledge••her of his execution,* 1.779 as outlawry &c. or a ••ledge••ease of all actions, for in as much as he ••ledge••y plead upon this Scire facias, it may well ••ledge•• called an action, though it be but a writ ••ledge•• execution.* 1.780 But notwithstanding that a ••ledge••n which recov••reth debt or damages, re∣••ledge••se to the Defendant all actions, yet he ••ledge••ay lawfully sue execution by a Fieri facias ••ledge••ias ad satisfaciendum, &c. for these can∣••ledge••t be called action▪ here upon a Nihil re∣••ledge••ed, execution shall be presently a∣••ledge••nst the partie•• to the Iudgment. But ••ledge••(b) 1.781 against Executors, or Administra∣••ledge••s nor in a Scire facias upon a(c) 1.782 Recog∣••ledge••nce or(d) 1.783 ••harter of pardon, upon an ••ledge••lawry, or such like, or to(e) 1.784 repeal a ••ledge••ent, for in all these cases two Nihils must ••ledge•• first returned. And therefore a Scire fa∣••ledge••s sicut alias shall go forth. And the(f) 1.785 ••ledge••emnities of summons, attachment, essoyn, ••ledge••w of land, &c. lye not in this writ.

Statutes.

Westm. 2. cap. 46. For all things re∣corded before the Kings Justices, or contain∣ed in fines (whether contracts, covenants, obligations, services, or customs acknowled∣ged, or any other things enrolled) a writ of Execution shall be within the year, so as the parties shall not need to plead: After the year a Scire facias. The like is of mesne who by Recognisance or Judgment is bound to acquit.

In case of life the Iudg may command execution to be done without any writ.

A woman(a) 1.786 quick with child(b) 1.787 the trial whereof is by a Jury of women: and the writ for it is called a writ De ventre inspicien∣do shall for(c) 1.788 once, and no more, be respited(a) 1.789 execution, but it is no plea upon her arraignment, to say, that she is enseint, but she must answer to the Felony.

CHAP. 47. Of new Originals in the nature of Judicial Writs, to undo matters concerning Judgments.

THe new Originals in the nature of Judicial Writs to undoe some matters concerning Iudgments, whe∣ther

it be the judgment it self, or the ver∣dict whereupon Judgment is given, that so the judgment also may be undone, or to a∣••ledge••oid the execution growing upon the judg∣ment, are either writs grounded upon er∣••ledge••or, or an attaint, and Audita quaerela.

Writs grounded upon Error, are a writ of Error and false judgment, both which lye upon any error in the proceed∣ing, as well in Redditione executionis (as up∣on a Capias ad satisfaciendum,) awarded for damages recovered in a real action,* 1.790 as in ••ledge••edd tione Judicii.

But Error in Process, may the same Term be reformed in the same Court, Whether it be in the Kings Bench(a) 1.791 or Common place(b) 1.792 and that by writ or without.

The process here is a Scire facias.

The party bringing a writ to reverse error in the Iudgment may have a Super∣ideas to stay execution till the error be ••ledge••scussed, whether it be matter apparent or matter en fait, that is alledged for Error. But no such Supe••sedeas shall be upon an Attaint; for that which is found by the oath of 12 ••en is intended true till it be reversed, but it may as well be intended that there is an error in the Record, as not.

A writ of Error is upon an Error in Court of Record.

And may be sued in the Kings Bench, or Parliament.

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In the Kings Bench when the error is in any inferior Court, Whether the judg∣ment be given in the Common place(a) 1.793 Chancery(b) 1.794 City(c) 1.795 or Corporate Town, as before the Mayor of Excester, or other Court of Record, for no Writ of Error is returnable in the Common place.

Statutes.

9 Ric. 2. cap. 3. If Tenant for life, or in tail, after possibility of the issue extinct be impleaded, and judgment pass against him, he that is in the Reversion at the time of the judgment, shall have a Writ of Error up∣on an Error in the Record of the same judgment, as well in the life of such a Te∣nant as after his death. And if at any time of reversing of the judgment, the Tenant for life, &c. be alive, he shall not be restored, &c. his possession, with the mesne issues, and he in the reversion to the arrearages of the same Rent, if any be due. But if the Te∣nant for life, &c. be dead at the time of the reversing of the judgment, then he in the reversion shall be restored to possession, with the issues after the death of their Te∣nant for life, &c. and the arrearages of Rent due in his life.

31 Ed. 3. cap. 12. Error in the Exche∣quer shall be reversed before the Chancel∣lor and Treasurer, taking to them the Ju∣stices

and other such sage persons, as they think fit. And after the Roll shall be sent back into the Exchequer, to make execu∣tion.

31 Eliz. cap. 1. If either Lord Chan∣cellor or Lord Treasurer, or both the chief Justices come at the day of adjournment in a Writ of Error in the Exchequer, it shall be no discontinuance.

32 H. 8. c. 30. made perpetual. 2 E. 6. cap. 22. After a verdict tryed by twelve men, or more, in any sute in Court of Re∣cord, no judgment shall be stayed or re∣versed for any mispleading, lack of colour, insufficient pleading, miscontinuance, dis∣continuance, miscontaining of Process, mis-joyning of the issue, lack of warrant of Atturney: for the party against whom the issue it tried, or any other default or negligence of the parties, their Councel∣lors, or Atturnies.

18 Eliz. cap. 4. After a verdict of twelve men, or more, in any sute in Court of Re∣cord, judgment shall not be stayed or re∣versed for default in form, or lack of form, as false Latine, variance from the Register, &c. in any writ original or judicial, decla∣ration, bill, or plaint, or for want of any writ original or judicial, or by reason of any imperfect or insufficient return, or for want of any Atturney, or for any manner of

default in process upon, or after the prayer or voucher.

27 Eliz. cap. 5. After demurrer joyned or entred in any sute in Court of Record, the Judges shall proceed and give judg∣ment according as the very right of the cause and matter in Law shall appear unto them, without regarding any imperfection, defect, or want of form in any writ, return, plaint, or declaration, or other pleading whatsoever; except those only which the party specially and particularly shall set down and express, together with his demur∣rer. And that no judgment to be given, shall be reversed by any writ of Error, 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 Sutes of Felony, or Murder, nor to Indict∣ment or Presentment of them, or of Trea∣son, or other matter, nor to process upon any of them, nor to any sute upon a popu∣lar, or penal Statute.

* 1.796In the Parliament, when the error is in the Kings Bench: And is returnable before the King and the Loords only. The order whereof is this, viz. The party that sueth it, must have a Bill from the King in∣dorsed; and thereupon the Chancellor must make him a writ of Error, and then the chief Justice of the Kings Bench shall bring with him (in the Parliament) unto the Lords in the Inner Parliament Chamber,

the writ or Error, and the Bill indorsed, and all the Rolls wherein are contained the Pleas and Process, in which Error is suppo∣sed, and there shall leave the transcript of all the Record and Process, &c. together with the said Writ of Error with the Clerk of the Parliament, who shall have the custo∣dy thereof. And by the Lords only, and not the Commonalty shall a Steward be as∣signed, who together with the Lords, by advice of the Justices, shall proceed to amend the error.

Statutes.

27 Eliz. cap. 8. An Error in the Kings Bench in an action of debt, detinue, cove∣nant, account, action upon the case, Ejectio∣ne firme, or trespass first commenced there (where the King is no party) may at the parties choice be reversed in the Exchequer Chamber before the Justices of the Com∣mon place, and such Barons of the Exche∣quer as are of the choice, or six of them at the least, other than for error concerning the jurisdiction of the Kings Bench, or want of form in a Writ, Return, Plaint, Bill, De∣claration, Pleading, Process, Verdict, or pro∣ceeding whatsoever. And upon the Judg∣ment affirmed or reversed, the Record shall be sent back into the Kings Bench, to pro∣ceed and award execution thereupon.

The party grieved with such reversal or affirmation, may have a Writ of Error in the

Parliament as upon Judgment in the Kings Bench.

31 El. c. 1. And any three of the Justi∣ces and Barons (if the full number come not) may receive Writs of Error, award Process, prefix days for the continuance of the Writs of Error.

* 1.797False judgment is upon error in a base Court.

Thus much of writs of error and false judgment, there followeth an attaint, and Audita querela.

Attaint is to inquire whether a Iury of 12 men gave a false verdict.* 1.798 That so the judgment following upon it may be rever∣sed, and the party restored to all that he hath lost, that is to say, if it be the Defen∣dant to his damages, and whatsoever else: if the Plaintiff to his title,* 1.799 his action, &c. for an attaint lyeth not till judgment be given, and if the Writ bear date before,* 1.800 it shall abate. And this lyeth only upon a ver∣dict by twelve, for if he lose in a Writ of right, no attaint lyeth neither by the Com∣mon Law, nor Statute, because it passeth by a Jury of more than twelve, that is to say, the grand assise. No more doth it in an inquest of office,* 1.801 and upon a writ to enquire of da∣mages in trespass, for that may be by a less number than twelve.

And this must be brought in the life of him for whom it passed, and of some of them that gave it, whom we call the petty

Jury, for if either the(a) 1.802 party himself, or(b) 1.803 all the petty Jury be dead, or(c) 1.804 all of them but one, the attaint faileth, and lieth only upon a verdict in personal actions other than trespasses: For it seemeth that there was an attaint at the Common Law, because Westm. 1. c. 37. speaketh of at∣taints without expressing any penalty.* 1.805 And 24 E. 3. cap. 7. giveth it in plea real as well as personal. So as it lay before in a plea personal, debt, detinue, covenant, and such like: but not in trespass, for that is given by Statute. And the reason why it lay not in an action of Trespass, is because then upon reversing of the recovery the King shall lose his fine. Neither did it lye at the Common Law in a plea real of Land, for Westm. 1. cap. 37. giveth it in that case. And the rea∣son of that was, because he that loseth may have a writ of right.

The Iury here called the grand Jury,* 1.806 are 24, who are to be warned the 1. day. And the process is against the party sum∣mons, re-summons, as in a mort dancester,* 1.807 darrein presentment, and Juris utrum, a∣gainst the petty Iury, Venire facias, and distress.

The petty Iury must be all present,* 1.808 when the grand Iury is taken, else it can never be taken, which was a great mischief at the Common Law, for it might be that some of them had nothing, and so would never appear.* 1.809 And may plead in bar of the attaint, as a release, arbitrement, &c. for this

excuseth them of their false oath, but not in abatement of the writ,* 1.810 as another a••∣taint hanging, that the Demandant had joyntly with another not named in the writ: or if a woman bring it to say she is covert, &c

The Plaintiff in the attaint can give no more evidence than was given at the first.* 1.811 But the Defendant in affirmance of the first verdict may.

Statutes.

Westm. 1. cap. 37. An attaint is given in pleas of land or of freehold, or of things that touch free-hold.

1 E. 3. cap. 8. In writs of trespass as well upon the principal 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 quantity of the damages.

34 E. 3. cap. 7. An attaint is given in every plea, real as well as personal.

9 Ric. 2. cap. 3. Given to him in the reversion, living his Tenant for Term of life upon a recovery against him, with restitu∣tion of the Tenant that lost his possession, with the mesne issues. And of him in the reversion to the arrearages of his Rent. But if the Ten that lost be either dead, or were of covin with him that recovered, then re∣stitution shall be to him in the reversion of

the possession it self, with the mesne, issues and arrearages, after such death and reco∣very by covin.

14 E. 2. Of Sheriffs and green wax, if the petty Jury appear not at the first grand distress against them, or a Nihil be return∣ed, the grand Jury shall be taken by their default.

32 H. 8. c. 3. Made perpetual 13 El. cap. 9. In a sute before Justices of Record not concerning life, an attaint is given a∣gainst the petty Jury, and every of them, and the party himself.

The process against the petty Jury and grand Jury, shall be summons and re-sum∣mons, and distress infinite.

Open proclamation shall be made in the Court where the distress is awarded more then fifteen days before the return of the distress.

The grand shall be taken in default of the Defendant, or petty-Jurors, or any of them.

The petty Jury that appear, being the same persons, and the writ, process, return, assignment of the false oath good, shall have no answer, but that he made a true oath, except the Plaintiff or Demandant hath been non sute, or discontinued, or had judgment aaainst the petty Jury upon his sute of attaint. But the party himself shall plead any thing only in Bar of the at∣taint.

Notwithstanding which plea, the grand Jury shall without delay inquire of the truth of the verdict. Such a day shall be given in the Process as in a writ of dower, and no essoyn or protection allow∣able.

By the death of the party, or one of the petty Jury, the attaint shall not abate, nor be deferred against the rest, as long as two of the petty Jury shall live.

Every attaint shall not be in the Kings Bench, or common place, and the Nisi prius granted upon the distress by the discretion of the Justices. And every of the petty Jury may be by Atturney. The non sute or release of one when there be divers Plaintiffs, or Demandants in an attaint, shall not pre∣judice the rest.

Every one of the grand Jury must have 20 marks a year Land of Free-hold, out of antient demesne. But if the value of the thing in sute be under the value of forty pounds, then five marks a year, or a hundred marks worth of goods sufficeth for default of such sufficient Jurors, within the same Country, a Tales shall be awarded unto the next.

11 H. 6. cap. 4. The Plaintiff shall re∣cover costs and damages against the Juror or Defendant, that pleads a fained plea in de∣lay. Audita querela is for one being or to be in execution to relieve him on good mat∣ter of discharge which he hath no means

to plead. As if one having a release,* 1.812 be taken in execution in one Court, as in the Com∣mon place, by Writ out of another (as out of the Chancery) returnable in the Com∣mon place, upon a Recognisance, or con∣demnation in the Chancery. (But if the Recognisance or condemnation had been in the Common place, then they might have awarded process upon that matter.) If ex∣ecution be sued of a Recognisance by Fieri facias or elegit: (but not by Scire facias,* 1.813 for there he hath day to answer, therefore it is his folly if he come not in and plead it, that is to say, where the Sheriff returneth him warned: otherwise it is upon a Nihil returned) if a release or acquittance be made unto him after the Scire facias sued, if after verdict and before judgment they have put themselves into arbitrement.

The Process where the Audita querela is sued,* 1.814 before execution is a venire facias and distress, and upon default after appearance and plea pleaded, a distringas ad audiendum Judicium, for thereby Judgment is to be given against him. And in this case of an Audita querela sued before execution, he may have a Supersedeas upon good matter of discharge surmised in the writ of Audita querela, to stay for once the execution upon sureties, so(a) 1.815 can he not being in execu∣tion. Neither(b) 1.816 can he have a Supersedeas before execution oftner then once, though(c) 1.817 it be upon new matter. But if the

(d) 1.818 Audita querela be abated for variance from the Record, or such like, there in ano∣ther Audita querela, he may have a second Supersedeas.

* 1.819After execution the process is a Scire facias, as if he be brought in by a Capias, ad satisfaciendum, for there he is in prison, o∣therwise it is if he be not taken by a Capias, but come in gratis. And this scire facias is only for the more hasty expedition of the party that is in prison, for if the process should be by distress infinite, peradventure the party would lose issues to keep the o∣thers body in perpetual prison.

CHAP. 48. Of certain special Writs wherein no Process lyeth.

THus far of an action, and the several parts of it. And of writs both Original and Iudicial, that be∣gin or prosecute the Action. Beside which, there be certain other Origi∣nals out of the Chancery, which are as it were special anomalies and excepti∣ons from the former. Being not diductory to bring any matter into plea or solemn action, but only Commendatory or Pro∣hibitory to do or leave something undone. And therefore no Process at all lieth in

these writs, but only an(a) 1.820 Attachment upon a contempt, for not executing or obeying them.

Of which nature are,

1. Commendatory ones, these that fol∣low. Dote assignanda,* 1.821 is for the wife of the Kings Tenant, when the King is intitu∣led by office of Land, whereof she is dow∣able, always directed to the Escheator. And may be either to deliver her such part of her Land as is already assigned to her in the Chancery for her dower,* 1.822 or for the Es∣chetor himself, to assign her part unto her.

If her husband held in chief, then she must first take an oath in the Chancery,* 1.823 not to marry without the Kings licence, before she can have this writ. But if he held of the King by Knights service, as of a ma∣nor, or if he held from one that is in ward to the King by reason of his non-age,* 1.824 there she shall not need to take any such oath.

Homagio capiendo, for tenant by homage auncestrel to compell the Lord to receive his homage,* 1.825 and is to save his warranty and acquittal, which he loseth if he be impleaded before the Lord have received his homage.

Scutagio habendo for the Lord to have es∣cuage of his Tenants by Knights service,* 1.826 when the same is due, by reason of any voyage Royal made by the King in proper person, or by his Lieutenants against the Scots, or them of Wales.

* 1.827And to make his son a Knight, or to marry his daughter, for the Lord to have this aid of his Tenants, where it is due.

De Corrodio habendo, & de Annua pensione, for the King. The(a) 1.828 first to have a coro∣die for his servant, the(b) 1.829 other to have a pension granted to his Chaplein(c) 1.830 till he be promoted to a benefice. Both(d) 1.831 these where the same are due. As(e) 1.832 of common right a Corodie is due from every Abbey, Priory, or other house of Religion, whereof the K. is founder in the right of his Crown. A(f) 1.833 pension from every Bishoprick in En∣gland or Wales.

De libertatibus allocandis, for one whether a singular person, Burgess, Citizen, or other, or a body corporate, impleaded before the Kings Iustices of the one Bench or o∣ther, Justices errants, Justices of the forrest, &c. to have the liberties granted them by the King or his progenitors, to be al∣lowed where the Justices will not make al∣lowance of them. And therefore is to be di∣rected to the Justices themselves, not to the Sheriff for he is but their officer, and subject to be amerced by them, if he do not his of∣fice as he should.

* 1.834De executione Judicij, to have a Iudg∣ment executed, whether the same were gi∣ven in a Court Baron, viz. the Court of the Lord, Hundred, or County Court, by writ of right Justicies, or plaint without writ, or in Court of Record. The same to be di∣rected

to the Sheriff, if judgment were given before the Bayliff in the Hundred or Lords Court, to the Coroners if it be before the Sheriff in the County Court, to the Justices themselves, if it be in a Court of Record. And this writ is a Justicies.

De restitutione temporalium, where the temporalties before seised into the Kings hands,* 1.835 are to be restored to a Pryor or Bishop elect and consecrate. And this must be directed to the Eschetor.

De securitate pacis, for him that is in fear of corporal hurt, to be killed, beaten,* 1.836 assault∣ed, &c. or of the burning of his houses, to be secured of peace in that behalf, against the party whom he feared. And may be for either of these causes alone, or for both joyntly in one writ, where a corporal oath must be taken by him that standeth so in fear. And that was wont to be in the Chancery before some Master of the Chan∣cery, by the antient course of Law. But now they use 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 than upon any just cause. The com∣mon form of this writ since the Statute 1 E. 3. cap. 16. which appointeth Justices of Peace, is for the ease of the people some∣what altered, and it is called a supplicavit, di∣rected sometimes to the Justices of peace, and to the Sheriff, sometimes to the Justices or one Justice sole, and sometimes to the

Sheriff only to compell the party to find sufficient mainperors in a reasonable summe of money, that he shall neither do nor pro∣cure any bodily hurt, or burning of the par∣ties houses; or upon refusal, to commit him to the Gaol till he do.

* 1.837De vi Laica removenda, to remove all lay force in any Church, especially where de∣bate is between two persons of a Church of prebends about the title, and one with force and arms holdeth the other out: and(a) 1.838 this writ may be as well upon the bare surmise of the Incumbent or party grieved, without any Certificate made by the Bi∣shop into the Chancery, of such force as up∣on, and by reason of such Certificate. And there be two several forms of Writ in these two cases, but hereby the Sheriff may not remove the incumbent out of possessi∣on of the Church, whether he be in by right or wrong, for then he may have a writ to restore him again, but only remove 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.

* 1.839Of cleansing streets to have the waies, streets or lanes of a Town Corporate, of the Suburbs of it, to be made clean, and so kept, when they be stencht, by dung and filth, hogsties, and such like, whereby the air is corrupted and infected, to the indan∣gering of the health, or other great discom∣modity

to the Inhabitants or Travellers that way. But it seemeth that no such writ lyeth for the village in that Countrey, though they be not kept clean, but for Corporate Towns only.

De Leproso amovendo,* 1.840 to remove a Leper or Lazer, that will come abroad to Church among his neighbours from the company of men to some solitary place of dwel∣ling, And that is for fear of infecting of them: but if he will keep in his house, and not come among his neighbours, then it seemeth he shall not be removed thence, nor that any Lepers or Lazers shall be removed by this writ, but only such as appear to be so by their speech, ulcers▪ rottenness of flesh, stink, and such like, and not those, that though they be infected inwardly, yet ap∣pear not so without.

De excommunicato capiendo,* 1.841 upon a signifi∣cavit, so we call the Ordinarie Certificate into the Chancery, that one excommuni∣cate standeth out forty days, and will not be justified by the censures of the Church to imprison, and so to justifie him, by his body, till he satisfie holy Church for his contumacy and cohtempt, and this Writ also is a Justicies.

De excommunicato deliberando,* 1.842 to deliver him out of prison when the Chuch is sa∣tisfied, and hath absolved him.

De cautione admittenda,* 1.843 when one taken by an Excommunicata capiendo, offereth suf∣ficient pledge, or caution to obey holy

Church, which is refused to have that caution admitted and to be delivered: and may be either to the(a) 1.844 Ordinary himself to command him to be delivered, which the Ordinary may do by word, or to(b) 1.845 the Sheriff to make such deliverance, and then it is withal, a de excommunicato deliberan∣do.

De heretico comburendo, to cause one con∣victed for an Heretick to be burnt.* 1.846 And this as the other writs to be directed to the Sheriff, the party being committed by the Clergy into the secular power. But by the Statute 2 H. 4. cap. 15. Every Bishop in his Diocess may convict a man of Heresie, and cause him to abjure, and after convict him anew, and condemn him to the fire, and thereupon make a precept to the Sheriff to take and cause him to be burnt, and the same a sufficient warrant to the Sheriff without any writ of the King: but that Sta∣tute is repealed by 25 H. 8. c. 14. so as now the Ordinary cannnot commit him to the lay people to be burnt without the Kings Writ first purchased.

De coronatore exonerando, to discharge a Coronor of his office upon just cause.* 1.847 As if he cannot attend his office for other busi∣nesses of the Kings that he is imployed a∣bout in the same County, or be old and feeble, or unfit for the office, and have not lands and tenements sufficient in the Coun∣ty, whereupon he may dwell according to his estate, or have the Palsey, or dwell in the

remote parts of the Shire, so as he cannot conveniently exercise the office, or such like.

And this writ is directed to the Coro∣ner himself.* 1.848

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

De coronatore eligendo,* 1.849 to chuse a Coro∣ner, two or three, if there need of so many in full County by the Free-holders of the County. And this is commonly upon the death or discharge of some of the Co∣roners, when it is upon the discharge, then this Writ rendreth the cause of their dis∣charge.

De electione viridariorum forestae,* 1.850 to chuse a verder of the Forest in like sort. Conge deslier, to Dean and Chapter, or such like to chuse their Bishop.

Statutes.

25 H. 8. cap. 20. For the election, no∣mination, presentation, investing, and con∣secrating of Arch-Bishops and Bishops.

A writ for the Royal assent to signifie to the ordinary his assent to the Election of an Abbot, &c. and to will him to exe∣cute that which belongeth to him, there∣fore this is always to the ordinary himself.

De securitate invenienda qd. se non divertat ad partes exteras sine licentia Regis, to compel one to find sufficient mainpernours in a reasonable sum of money, not to go into

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forreign parts out of the Realm, without the Kings licence, nor any thing there at∣tempt in contempt or prejudice of the K. or hurt of the people, nor send any thither for any such cause. And as a Supplicavit may be directed to the Justices of peace, or Sheriff, or both. And every one upon sur∣mise to the Chancellor may sue this Writ for the King; for by the Common Law eve∣very one that will, may go out of the Realm for Merchandize, travel, or other cause at his pleasure without the Kings licence. But the King may restrain any subject by this Writ, or by his privy Seal or Signet, or by Proclamation without Writ, or other com∣mandment, because every man is bound of common right to defend the King and his Realm.

5 R. 2. cap. 2. None shall go out of the Realm without the Kings leave upon pain of forfeiture of his goods, except the Lords and other great men of the Realm, known Mer∣chants, and the Kings Souldiers.

Statutes repealed. 4 Iac. cap. 1.

All Dedimus potestatems. The principal of them are these.

Dedimus potestatem, to give the Kings Royal assent to the election of an Abbot,* 1.851 or such like, made or to be made, and to signifie so much by his Letters to the Ordinary, that he may do that which be∣longeth to him, and to receive fealty, &c. commanding the party to do the premis∣ses. And therefore is directed to the party

himself that must do these things.

Dedimus potestatem de fine levando,* 1.852 to certain persons to take the acknowledg∣ment of a fine out of Court, when one that hath agreed in the Kings Court to levie a fine, is so feeble that he cannot tra∣vel, for every such dedimus potestatem, sup∣poseth a Writ of covenant,* 1.853 or such like han∣ging. And they to whom this Writ is di∣rected, must go in proper person to the par∣ties to take the conisance, which being cer∣tified to the Kings Justs. of Com. Place, the fine shall be ingrossed. The chief Iust. of the Com. Pleas may take the acknow∣ledgment of a fine without any dedimus potestatem, so can no other Judge,* 1.854 de rigore Juris. But a Justice of assise by a general Patent with a clause of non obstante may.

Statutes.

Stat. Carliff 15 E. 2. The dedimus potestatem shall be directed to two of the Ju∣stices, or one Justice and a Knight.

Prerogative.

Dedimus potestatem de atturnato faciendo, for the Iudges to admit an Atturney for one in a sute,* 1.855 whether it be for the Plain∣tiff or Defendant, Demandant or Tenant, and in what action or sute soever the same be. This Writ must be directed to the Judges themselves, and groweth by the Kings Pre∣rogative,

for at the Common Law the par∣ties must appear in proper person, not by Atturney, although the Statutes gave power afterwards to make Attorneys in divers ca∣ses, as appeareth before. But before those Statutes it seemeth that the K. might grant to any man to make an Attorney in any sute. And one reason thereof was, because it is no error though the Judg admit any Plaintiff or Defendant to make an Attorney, where by the Law he ought not.

Prohibitorie ones are these that follow

* 1.856A protection cum clausula nolumus to free ones possessions, land, rent, corn, cattle, carriage, &c. that nothing be taken against his will for the Kings business, by his of∣ficers or ministers. This may be as well for a secular as a spiritual person, and groweth by the Kings special favour.

* 1.857Parsons or other spiritual persons not to be charged to the payment of fifteens, for goods in their possession annexed to their Churches,

Quod clerici non eligantur in officium bali∣vi,* 1.858 for a Clerk, so is every one termed that is within holy orders, not to be chosen an officer, as Bayliff, Beedle, Reeve, &c. for his lands, and this writ reciteth that by the Common Law they ought not, and comman∣deth that if any distress or amerciament be levied, in this respect, it be restored.

* 1.859A prohibition to forbid tenant in dower, or by curtesie of England, or gardein by Knight service, or in soccage, to commit

waste to the destruction of the inheri∣tance.* 1.860 But this Writ lyeth not against les∣see for life or years, for they come in by their own lease; but in the other cases be∣fore the Law maketh their estate.

Statutes.

Glocest. cap. 5. A man may have a Writ of waste out of the Chancery against Tenant by curtesie or dower, or otherwise for term of life or years, and being attaint of waste, he shall forfeit the waste and treble dama∣ges.

West. 2. cap. 14. The process in a Writ of waste shall be summons, attachment, di∣stress, and if he come not, then a Writ unto the Sheriff, taking with him twelve men to go to the place wasted, and there inquire of the waste, and upon that waste returned, judgment shall be.

11 H. 6. cap. 5. Where the Tenant grants over his estate, but notwithstanding takes the profits, and commits waste, an action lies against him.

Mag. chart. cap. 4. The Guardein may not commit waste on pain to lose the wardship.

Cap. 5. And must repair and sustain the houses, of the profit of the land.

Glocest. cap. 5. If the Gardein commit waste, and the Wardship lost answer not the value of the damages, before the heirs age, then he shall render the damages to the heir

Artic. sup. chart. cap. 18. Eschetor com∣mitting Waste upon Wards Land, shall

answer damages as is ordained before by Statute against them that do waste 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 Esche∣tor have a ward to answer to the King of the issues, and commit waste, the heir shall have an action of waste as well within age as of full age, and whilst he is within age, if he cannot, his next friends shall have the sute for him.

14 E. 3. cap. 12. The heir when he com∣eth to full age shall have an action of waste against the Guardeins and Farmours to whom the King shall let the land in ward ac∣cording to that Statute.

Westm. 2. cap. 22. A writ of waste given for one Joyntenant or Tenant in Common, against another, wherein the Defendant to be at his choice to take his part in certain (and then to have for his part the place wa∣sted) or to agree from thenceforth to take nothing more than his Companions do.

Glocest. cap. 13. Hanging a plea by writ the Tenant may not commit waste, nor e∣strepment of the land in demand, and if he do, the Demandant may have a Writ to cause the land to be kept that no waste nor estrepment be done.

A quo minus for grantee of estovers, as houseboot or heyboot,* 1.861 &c. to restrain the grantors from committing waste, so as he cannot have his estovers.

De exoneratione sectae, for Tenants by

sute of Court,* 1.862 or other rent or services that they be not distreined to do 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∣cery of Lands so in ward, and the Tenants paravail of such a ward, that is to say, where the other Lords, of whom the heir holdeth do distrein, for during such time as the heir is in ward, either to the King or to his Committee, he is to do no sute of Court or other services, and if any distress be taken, it is by this Writ to be resto∣red.

De deonerando pro rata,* 1.863 to discharge the Tenant of parcel of the land according to the rate of his land when he is lawfully distreined for all the rent or services. As where a man which holdeth a C. Acres of Land by the service of repairing a bridge, alien in Fee 20 Acres to one man▪ and 20 to another, and after, upon this presented, one of the aliens is only distreined to make re∣paration, or where the Kings Tenant by Fealty 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 distrein 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 Fealty and Rent, alie∣neth part of his land, for there the Statute

it self restraineth the Lord that he cannot distrein the alienee, but after the rate and value of the Land which he hath purchased.

* 1.864De essend. quiet. de Theolonio to officers of Towns or other places not to grieve spi∣ritual persons, or other that ought to be quit of paying of toll, murage, pannage, poutage, &c. whether by the Kings grant, or by prescription.

* 1.865De non ponendo in Juratis, to discharge Peers of the Realm, or other persons priviledged, as Clerks that are in the Kings service, &c. from being of Iury, unless their presence be for any special cause ne∣cessary.* 1.866 And this may be directed either to to the Sheriff not to put them into Juries, or the Judges to discharge them. But if a Peer of the Realm be returned, he must be sworn or lose issues, if he appear not, unless he bring the Writ.

* 1.867Ne exeas regnum, to the party himself to inhibit him to go into foreign parts with∣out the Kings licence.

Notes

• (a) 1.1

  4 H. 6. 16. 5 E. 4. 7.
• * 1.2

  7 H. 6. 5.
• * 1.3

  4 H. 6. 16.
• * 1.4

  14 H. 6 20. In a Summons ad Warrantizan∣dum F. N. B. 75. In a Re∣plevin.
• * 1.5

  7 H. 6. 45.
• * 1.6

  44 C. 3. 18.
• * 1.7

  20 E. 47.
• * 1.8

  44 E. 3. 3
• * 1.9

  44. E. 3. 2.
• * 1.10

  9 E 4 42.
• * 1.11

  9 E. 4. i••id.
• * 1.12

  15 El. Pl. 434.
• * 1.13

  21 H. 9. 24. 5 E. 4 1.
• * 1.14

  18 Eliz ploy. 483. 21 H. 7. 19. 39 H. 6. 26. Stamf. praef. 56.
• * 1.15

  3 El. ploy. 289.
• * 1.16

  3 El. ••loy. 229. 5 E. 4 7.
• * 1.17

  Lit. 39.
• * 1.18

  41 E. ••. Vil••. 6.
• * 1.19

  21 E. 4. 11.
• * 1.20

  1 H. 7. 2••. the higher house. Br. Recogn. 8. the lower house
• * 1.21

  23 El. Dyer. 375. 1 H. 7. 19. 37. a s. pl. 17. 21 E 3. 46. Br. Parliament 16
• * 1.22

  34 H. 6. 41.
• * 1.23

  2 E. 4. 1. Fitz. Nat. Br. 68. Fitz. Nat. br. ibid. 2 H. 6. 7. 7 E. 4. 14.
• * 1.24

  2 H. 6. ibid.
• * 1.25

  2 H. 6. ibid.
• * 1.26

  7 E. 4 14. 8 H. 6. 3. 12 E. 4. 15.
• * 1.27

  4 El. Pl. 213.
• * 1.28

  Br. Courts fol. 108.
• * 1.29

  38 H. 8. Br. Patents 101.
• * 1.30

  37 H. 6 21.
• * 1.31

  Sta. 5. El. ca. 18.
• * 1.32

  10 El. ploy. 320
• * 1.33

  10 Eli. ibid.
• * 1.34

  10 Eliz. ibid.
• * 1.35

  4 E. 4. 24. He may take Inqui∣sitions virtute officii.
• * 1.36

  F.N.B. 82.
• (a) 1.37

  22 E. 4. 22.
• (b) 1.38

  10 H. 6, 7.
• (c) 1.39

  22 E. 4. ib.
• * 1.40

  F. N. B. 116. Br. per. Br. leet. 39. 12 H. 7. 18. 25 E. 3. 23. Br. per. Br. ib.
• * 1.41

  F. N. B. ibid.
• * 1.42

  St. Marl. c. 16. so reciteth it.
• * 1.43

  2 H. 4. 24. 8 R. 2. avowry. 194.
• * 1.44

  Stam. 52.
• * 1.45

  14 H. 7. 31. 4 H. 7. 3.
• * 1.46

  Diu of courts f. 102.
• * 1.47

  Diu of courts f. 102. Stamf. 57. a.
• * 1.48

  Fitz. N. B. 82. 23 E. 3. 22.
• * 1.49

  22 E. 4. 22.
• (a) 1.50

  22 E. 4. 22.
• (b) 1.51

  F.N.B. 161 Brit. g. Br. leet 39.
• (c) 1.52

  2 H. 4. 24. 8 R. 2. Avowry 194.
• (d) 1.53

  31 H. 6. leet 11.
• (e) 1.54

  12 H. 7. 18.
• (f) 1.55

  29 E. 3. 21. Avowry 247.
• (g) 1.56

  6 E. 4. 3. 7 E. 4. 23. A writ of Error lieth there, and not a writ of false judgment.
• (h) 1.57

  St. 17 E. 4. c. 2. so reciteth it.
• (i) 1.58

  13 E. 4. 8. ib.
• (k) 1.59

  4 M. Dy. 133.
• * 1.60

  42 Ass. pl. 12.
• * 1.61

  F.N.B. 239. p. Br. juris. 99. F.N.B. 239. g.
• * 1.62

  ••r. leet 32.
• * 1.63

  21 E. 4. 5.
• * 1.64

  16 H. 7. 14.
• * 1.65

  6 E. 4. 3.
• * 1.66

  F.N.B. 82.
• (a) 1.67

  34 H. 6. 49.
• (b) 1.68

  13 H. 7. 19. 12 H. 7. 17.
• * 1.69

  12 H. 7. 18.
• * 1.70

  F.N. B. 82.
• * 1.71

  10 El. Dyer 268 5 El. Dyer 220.
• * 1.72

  14 E. 4. 4.
• (a) 1.73

  2 Mar. Br. attaint. 104.
• * 1.74

  Br. bill. 35.
• * 1.75

  9 E. 4. 27.
• * 1.76

  Regist. fol. 228. & per Br. pledg. 29.
• (a) 1.77

  2 E. 3. 4.
• (b) 1.78

  9 H. 7. 16.
• (c) 1.79

  3 E. 3. 86.
• (d) 1.80

  3 E. 3. ibid. All this that followeth is the Rule of the Register.
• (a) 1.81

  8 E. 4. 24. saith the reason is, because there are in England no more Dukes of that name: and so it may well enough be known of whom it is meant: and also for the so∣lemnity of the creation. But o∣therwise it is of Knights, for there are 1000 Knights in England; there∣fore there the Writ must be praecipe J. S. militi.
• (b) 1.82

  27 H. 6. 3.
• (c) 1.83

  13 E. 3. br. 675. in act. real.
• (d) 1.84

  12 H. 4. 20. in Assis••. 10 H. 7 5. in waste. 18 Ed. 4. 17. in annuity.
• (e) 1.85

  30 H. 6. 5.
• (f) 1.86

  9 E. 3. 465. 33 H. 8. Dyer 50. 37 H. 6. 29. 27 H. 6. 3.
• * 1.87

  Regist. fol. 228 & per. Er. pledg. 29.
• * 1.88

  Lit. 116.
• * 1.89

  18 E. 4. 4.
• (a) 1.90

  1 H. 4. 5. Stamf. 62. a.
• * 1.91

  20 E. 3. Aud••••. Querela 28.
• * 1.92

  33 H. 6. 28.
• * 1.93

  3 H. 4. 13.
• (a) 1.94

  Stamf. prer. 73.
• (b) 1.95

  Stamf. prer. 73.
• (c) 1.96

  Stamf. prer. 42.
• (d) 1.97

  34 H. 6. 5.
• * 1.98

  9 H. 6. 15.
• * 1.99

  Stamf. prer. 76.
• * 1.100

  7 H 4. 33.
• * 1.101

  4 E. 4. 24.
• * 1.102

  9 E. 4. 52.
• * 1.103

  Lit. 116.
• * 1.104

  10 E. 9. 23.
• * 1.105

  F.N.B. 5. b.
• * 1.106

  Lit. 115.
• * 1.107

  Old tenures f. 2
• * 1.108

  6 E. 6. Pl. 87.
• * 1.109

  4 E. 4. 32.
• * 1.110

  19 H. 6. 32. 22 H. 6. 12. 45 E. 3. 5. 37 H. 68. 27 H. 8. 30.
• * 1.111

  41 E. 3. 16.
• * 1.112

  Old N. B. 124. Fitz. N.B. 201. & f.
• * 1.113

  Fitz. N.B. ibid.
• * 1.114

  Old Nat. Br. 1. Br. Form. 69. 3 El. Pl. 235.
• (a) 1.115

  Old Nat. Br. 148, 149.
• (b) 1.116

  F.N.B. 217. d.
• (c) 1.117

  Fitz. ibid.
• * 1.118

  Fitz. N.B. 219. C. 30 E. 1. Form. 65.
• * 1.119

  Old Nat. Br. 6.
• * 1.120

  Br. praec. q. d. redd. 35.
• * 1.121

  Fitz. N. B. 5. f.
• * 1.122

  Fitz. N.B. 139.
• * 1.123

  13 H. 7. 27.
• * 1.124

  Ibid.
• * 1.125

  5 E. 4. 2. 13 H. 7. 27. 15 E. 4. 29.
• * 1.126

  Old N. Br. 162.
• * 1.127

  Ibid.
• * 1.128

  16 H. 7. 1. 34 E. 3. Disc. 24
• * 1.129

  16 H. 7. 1.
• * 1.130

  F.N.B. 151. g.
• * 1.131

  F.N.B. 151. b.
• * 1.132

  F.N.B. 122. m.
• * 1.133

  Fitz. N.B. 33. h.
• * 1.134

  Fitz. Nat. Br. 123. f.
• * 1.135

  F.N.B. 128. a. F.N.B. 127. h. & 128. a. F. N.B. 136. f.
• * 1.136

  F.N.B. 135. m:
• * 1.137

  F.N.B. 134. d.
• (a) 1.138

  12 H. 4. 24.
• * 1.139

  F.N.B. 134. l. 22 H. 6. 22.
• (a) 1.140

  42 E. 3. 5.
• (b) 1.141

  T. H. Fitz.
• (c) 1.142

  John per Dy. 179.
• (d) 1.143

  21 E. 3. 18.
• * 1.144

  42 E. 3. 5. 40 E. 3. 7.
• * 1.145

  22 H. 6. 57.
• * 1.146

  27 H. 8. 4. 37 H. 6. 5.
• * 1.147

  7 Eliz. Play. 360.
• * 1.148

  Lit. 12. is that in a feoffment made en pais, &c. where a freehold pas∣seth, be it by deed or with∣out, there must needs be live∣ry of seisin, which words (en pais) are put to exclude fines that are feoffments of Record. 18 E. 4. 22. 36 H. 8. Br. fines 118.
• * 1.149

  Lit. 104.
• * 1.150

  7 Ed. 2. 37. Cont. claym. 7.
• * 1.151

  Lit. 149.
• * 1.152

  15 E. 4. 1.
• * 1.153

  48 E. 3. 15.
• * 1.154

  37 H. 6. 5.
• * 1.155

  F.N.B. 177. a.
• * 1.156

  31 Ass. pl. 31. 32 Ass. pl. 10.
• * 1.157

  F. N. B. 184.
• * 1.158

  The form of the writ F. N. B. 195. 14 El. Dy. 310. is that the 3 points to be in∣quired in a Mortdaunce∣stor (all expres∣sed in the writ) are 1. whether the Ancestor were seized in fee day of his death. 2. Whe∣ther the De∣mandant be his next heir. 3. Whether the Ancestor died within 50 years next before the writ purcha∣sed.
• (a) 1.159

  F. N.B. 196. k.
• (b) 1.160

  F. N.B. 195. d.
• * 1.161

  4 El. Pl. 239. F.N.B. 195. d.
• (a) 1.162

  F.N.B. 31. g. Old N. B. 33.
• (b) 1.163

  F.N.B. 31. d 5 H. 7. 16.
• * 1.164

  F.N.B. 48. r.
• * 1.165

  Lit. 53, 65, 72.
• * 1.166

  Lit. 98. 5 E. 3. part. 11.
• * 1.167

  1 H. 7. 5. 11 H. 4. 5. 28 H. 6. 2. 21 E. 3. 7. 28 H. 8. Dy. 2••.
• * 1.168

  F. N. B. 197.
• * 1.169

  F.N.B. 1••8.
• (a) 1.170

  22 H. 6. 27.
• (b) 1.171

  Br. Costs 29
• * 1.172

  21 E. 4. 3.
• * 1.173

  11 H. 4. 83.
• * 1.174

  8 E. 4. 3.
• * 1.175

  21 E. 4. 23. 16 H. 7. 4.
• * 1.176

  32 H. 6. 25.
• * 1.177

  22 H. 6. 12. 38 E. 3. 7.
• * 1.178

  45 E. 3. 3.
• * 1.179

  1 E. 5. 6.
• * 1.180

  Br. Detin. 48.
• * 1.181

  50 E. 3. 16. 11 H. 7. 5.
• * 1.182

  50 E. 3. ibid.
• * 1.183

  19 H. 8. 8. 10 H. 7. 5.
• * 1.184

  Ibid. 15 El. Pl. 441.
• * 1.185

  47 E. 3. 33.
• * 1.186

  Ibid.
• * 1.187

  10 El. Pl. 321.
• * 1.188

  F.N.B. 152. a. F.N.B. 152. b.
• * 1.189

  F.N.B. 152. a.
• * 1.190

  Old. N. B. 62. Old N. B. 65.
• * 1.191

  F.N.B. 116. p.
• * 1.192

  Lit. 118.
• * 1.193

  F.N.B. 140. f.
• * 1.194

  F.N.B. 141. g.
• * 1.195

  F. N.B. 140.
• * 1.196

  F.N.B. 197.
• * 1.197

  So is the Law now adjudged.
• * 1.198

  38 H. 6. 9.
• * 1.199

  22 H. 6. 47.
• * 1.200

  33 H. 6. 10.
• * 1.201

  F.N. B. 1••6.
• * 1.202

  F. N. B. 239. d. F.N.B. 85. f. 86. a.
• * 1.203

  F.N.B. 239. d.
• * 1.204

  3 H. 6. 54.
• * 1.205

  F. N.B. 100.
• * 1.206

  F.N.B. 101. c. F.N.B. 102. f.
• * 1.207

  F.N.B. 220. h. F.N.B. 220. f.
• * 1.208

  Lit. 116. 8 El. Pl. 476. 33 H. 8. Dy. 50. 33 H. 8. D. Stamf. 50.
• * 1.209

  7 E. 4. 15.
• * 1.210

  Old N. B. 12. A writ of right Patent. F.N.B. 85. Of Trespass. F.N.B. 2. f. of a writ of right Patent. F.N.B. 86. Of Trespass Vi••∣contiel.
• * 1.211

  6 E. 4. 3. 35 H. 6. 5.
• (a) 1.212

  F. N.B. 1. b
• (b) 1.213

  F.N.B. 30.
• (c) 1.214

  14 E. 3. dr. 31.
• (d) 1.215

  Ibid.
• * 1.216

  F.N.B. 1. b. Old N. B. 1. F.N.B. 3. c. & 8. a. b. F.N.B. 2. f.
• * 1.217

  F.N.B. 1. i. F.N.B. 4. Old N. B. 10. F.N.B. 9. b. Old N.B 10. Ibid. 8 El. F.N. B. 9. b. It lieth also where the Ancestor dieth seized. F.N.B. 9. b. Old N B. 10. F.N.B 9. g.
• * 1.218

  Old N. B. 10. F.N.B. 9. g. F.N.B. 9. n. F.N B. 197. c. d 7 H 6. 8. F.N.B. 6.
• * 1.219

  F.N.B. 184. b.
• * 1.220

  F.N.B. 148.
• * 1.221

  Ibid.
• * 1.222

  F.N.B. 125. b. & d.
• * 1.223

  F.N.B. 77. a.
• * 1.224

  F.N.B. 77. b.
• * 1.225

  F. N. B. 77. c.
• * 1.226

  Old N. B. 73.
• * 1.227

  Ibid. 73. & 74
• * 1.228

  F.N.B. 66. e. F. N B. 66. f. F.N.B. 67.
• * 1.229

  F.N.B. 68. d. 4 H. 6. 30.
• * 1.230

  F.N.B. 70. a. b
• * 1.231

  F.N. B. 70. b.
• * 1.232

  2 H. 7 6.
• * 1.233

  4 Deputies to make Reple∣vins.
• * 1.234

  F.N.B 151: b. Ibid. 123. a. Ibid. 123. f. Ibid. 135. a. 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 Commission in effect. And the Sheriff may de∣termine them by Enquest, ac∣cording to the course of the Common Law. F.N.B. 110. b.
• * 1.235

  Ibid.
• * 1.236

  F.N.B. 111. b.
• (a) 1.237

  F.N.B. 111. d F.N.B. 185. a. in an assise.
• (b) 1.238

  F.N.B. 111. d
• (c) 1.239

  F.N. B. 186. ab. F.N. B. 111. a.
• (d) 1.240

  F.N.B. 221.
• * 1.241

  Old N. B. 74.
• * 1.242

  22 Ass. pl. 64. Br. Jur. 98. 14 H. 8. 15. Ibid.
• * 1.243

  Stamf. 64.
• * 1.244

  Stamf. 55. a. Stamf. 64.
• * 1.245

  6 E. 4. 3.
• * 1.246

  10 H. 7. 14.
• * 1.247

  Quo warranto in Justices Cir∣cuits.
• * 1.248

  F. N. B. 170. c.
• * 1.249

  21 E. 3. 2.
• * 1.250

  3 H. 7. 3.
• * 1.251

  4 H. 7.7.
• * 1.252

  4 E. 4. 24.
• * 1.253

  Ibid. 34 H. 6. 5. 4 E. 4. ibid.
• * 1.254

  14. ••. 7. 23, 25:
• * 1.255

  Stamf. Prer. 54
• * 1.256

  14 E. 3. 11. 11 H. 4. 5.
• * 1.257

  4 E. 4. 24. 2 H. 4. 5.
• * 1.258

  14 E 4. 5. 6 H. 7. 15.
• * 1.259

  Stanf. prer. 52
• * 1.260

  F.N.B. 235. c.
• * 1.261

  F.N.B. 252.
• * 1.262

  14 E. 4. 6. F.N.B. 253. c.
• * 1.263

  Stamf. 52. F.N.B. 253. c. F.N.B. 253. b. Stamf. ibid. Fitz. ibid. 4 E. 4. 24.
• * 1.264

  F.N.B. 255.
• * 1.265

  E. 4. 24. F.N.B. 255.
• * 1.266

  2 H. 7. 2.
• * 1.267

  F.N.B. 257.
• * 1.268

  Stamf. prer. 52
• * 1.269

  F. N.B.
• * 1.270

  32 H. 8. Br. li∣very & ouster le main 62.
• * 1.271

  44 E. 3. 25.
• * 1.272

  2 H. 7. 12. F.N.B. 156.
• * 1.273

  1 H. 7. 28.
• * 1.274

  3 E. 4. 4.
• * 1.275

  Stamf. prer. 58.
• * 1.276

  3. E. 1. Endict. 31.
• * 1.277

  9 E. 4. 10.
• * 1.278

  2 E 3. 28:
• * 1.279

  7 E. 3. 324.
• (a) 1.280

  12 H. 7. 18. Constables and Borsholders are Conservators of the Peace at the Common Law.
• (b) 1.281

  22 E. 4. 35.
• * 1.282

  9 E. 4. 26.
• (a) 1.283

  9 E. 4. 26
• (b) 1.284

  9 E. 4. ib.
• (c) 1.285

  20 E. 4. 6.
• (d) 1.286

  1 E, 4. 4.
• (a) 1.287

  9 E. 4. ib.
• (b) 1.288

  11 E. 4. ib.
• * 1.289

  27 H. 8. 3.
• * 1.290

  35 H. 6. 27.
• * 1.291

  13 E. 2. Judg. 170.
• * 1.292

  37 H. 6. 26.
• * 1.293

  Old N. B. 177. 50 E. 3. 16.
• (a) 1.294

  38 H. 6. 33 ••••d N. B. ibid.
• * 1.295

  Stamf. Pre 84.
• * 1.296

  22 H. 6. 41.
• (a) 1.297

  35. H. 6. Br. Attachment 20.
• (b) 1.298

  7 H. 6. 10.
• (c) 1.299

  27 H. 6. 2.
• (d) 1.300

  9 H. 7. 9.
• (e) 1.301

  ibid.
• (a) 1.302

  Br. per. Stamf. 15.
• (b) 1.303

  32 E. 3. Exi∣gent 14.
• (c) 1.304

  35 H. 6. 6, Br. Exigent 24. 11 H. 7. 26.
• (a) 1.305

  22 E. 3. 11.
• (b) 1.306

  38 E. 3. 1.
• (c) 1.307

  14 E. 3. En. 17.
• (d) 1.308

  17 E. 3. 43.
• (e) 1.309

  22 E. 3. 11.
• * 1.310

  Lit. 43.
• (a) 1.311

  9 H. 6. 20.
• (c) 1.312

  30 H. 6 20.
• (d) 1.313

  9 H. 6. 20.
• (a) 1.314

  20 H. 7. 13.
• (b) 1.315

  50 ass. pl. 1. 19 H. 6. 47.
• (c) 1.316

  16 E. 4. 4. 50 ass. pl. 1. 9 El. Dy. 262. 3 E. 3. Cor. 333. Contr. Stanf. 188. b.
• (d) 1.317

  So ass. pl. 5. 28 E. 3. 92.
• (e) 1.318

  Stanf. 188. b.
• (f) 1.319

  28 E. 3. 92.
• (g) 1.320

  Stan. 188. b.
• * 1.321

  22 aspl. 81.
• * 1.322

  22 H. 6. 38. 34 H. 6. 49.
• * 1.323

  F. N. Br. 92. g. 2 H. 4. 25.
• * 1.324

  21 H. 6. 56.
• * 1.325

  24 El. Fairfaxes case in the com∣mon pleas.
• * 1.326

  D. Stud per. Br. issues 23.
• * 1.327

  22 H. 6.4.
• * 1.328

  5 H. 7. 1. Br. disse. 41.
• * 1.329

  Br. exigent 72. It is error if he be outlawed. 26 H. 8. 7.
• * 1.330

  F. N. B. 73. & 74.
• * 1.331

  11 H. 7. 22.
• * 1.332

  11 H 7. ibid Lit. 85.
• * 1.333

  8 E. 4. 1. 45 E. 3. 25.
• * 1.334

  8 E. 3. 331. 26 H. 8. 3.
• * 1.335

  2 Mar. Dy. 114. 13 H. 8. 16. 19 H. 6. 32.
• * 1.336

  Br. Esplees 11. 21 H. 6. 22.
• * 1.337

  9 H. 6. 53. 50 E. 3. 1.
• * 1.338

  7 El. Ploy. 343.
• * 1.339

  48 E. 3. 10.
• * 1.340

  4 El. Plo. 276.
• (a) 1.341

  48 E. 3. 1.
• (b) 1.342

  1 H. 7. 25.
• (c) 1.343

  41 E. 3. 3.
• (d) 1.344

  48 E. 3. 33.
• (e) 1.345

  9 H. 6. 46.
• (f) 1.346

  Age 16.
• (g) 1.347

  48 E. 3. 33.
• (h) 1.348

  48 E. 3. ib.
• (i) 1.349

  14 E. 2. 17. Age 18.
• * 1.350

  48 E. 3. 35.
• * 1.351

  39 H. 6. 39.
• (a) 1.352

  44 E. 3. 42.
• * 1.353

  12 H. 7. 3.
• * 1.354

  Bracton.
• * 1.355

  3 H. 6. 40. Lit. 44.
• (a) 1.356

  30 E. 3. 20.
• (b) 1.357

  4 E. 3. 166.
• (c) 1.358

  4 E. 134, 135.
• (d) 1.359

  24 E. 3. 47. 35. 3 E. 3. 70.
• * 1.360

  22 H. 6. 41. Stam. 82. c. of an assise. F. N. B. So k of a Juris utrum also. 1 E. 4. 4.
• * 1.361

  22 E. 4. 38.
• (a) 1.362

  38 E. 3. per 46 E. 3. 14.
• (b) 1.363

  46 E. 3. 14.
• (c) 1.364

  32 H. 6. 24.
• (d) 1.365

  33 H. 6. 3.
• (e) 1.366

  33 H. 6. ib.
• (f) 1.367

  9 E. 4. 5.
• (g) 1.368

  2 H. 4. 21.
• (a) 1.369

  46 E. 3. 14.
• (b) 1.370

  41 E. 3. 4.
• (c) 1.371

  43 E. 3. 16:
• (d) 1.372

  4 E. 6. Br. Journeys accom. 23.
• (e) 1.373

  7 H. 6. 16. 23.
• (f) 1.374

  14 H. 4. per 7 H. 6. 34.
• (g) 1.375

  7 H. 6. 23.
• * 1.376

  Stat. West. 2. c. 48. from hence∣forth view shall not be granted, but where it is necessary, &c. sheweth that it did lye in those cases at the Common Law. And this view must be demand∣ed before any plea in bar, and may be after pleading to the Writ: for though one plead a plea that goeth to the action (as that the Plain∣tiff in a writ of dower is an ali∣en) yet if ee conclude to the Writ, he may have view after 3 H. 6. 55.
• * 1.377

  31 E. 3. Joind. in aid 10. 33 H. 6. 29.
• * 1.378

  31 E. 3. Joyn. et ayd. 10. F.N. B. 134. b.
• * 1.379

  F. N. B. 134. k. 22 H. 6. 22.
• (a) 1.380

  45 E. 3 23. 14 H. 6. 2 Br. Se{que} sub, &c. 3. Old N. B. 199.
• * 1.381

  Old N. B. ibid.
• * 1.382

  13 E. 3. Judg∣ment 117.
• * 1.383

  3 H. 7. 13. Br. recov. non. valu 40.
• (a) 1.384

  Park. 61. b.
• (b) 1.385

  Park. ibid.
• * 1.386

  15 H. 7. 10.
• * 1.387

  9 H. 6. 4.
• * 1.388

  1 E. 3. 4.
• * 1.389

  F.N.B. 17. 8. c.
• * 1.390

  14 E. 4. 2.
• (a) 1.391

  21 H. 6. 25.
• (b) 1.392

  40 E. 3. 1.
• (c) 1.393

  20 E. 4. 13. 40 E. 3. 11. 4 E. 3. ibid.
• * 1.394

  21 H. 6. 35.
• (a) 1.395

  33 H. 6. 25. 8 H. 6. 30.
• (b) 1.396

  3 H. 6. 44.
• (c) 1.397

  19 H. 6. 68.
• (d) 1.398

  8 H. 6. 30. 33 H. 6. 25.
• (e) 1.399

  8 H. 6. ibid.
• * 1.400

  33 H. 6. ibid. 8 H. 6. ibid.
• (a) 1.401

  1 H. 7. 25.
• (b) 1.402

  Stamf. 111. The Abbot of battail had so.
• (d) 1.403

  1 H. 7. 26.
• (e) 1.404

  1 H. 7. 25.
• * 1.405

  4 H. 6. 33.
• * 1.406

  Lit. 150.
• (a) 1.407

  42 E. 19.
• (b) 1.408

  21 E. 4. 82. Lit. Chap. of Warranty.
• (c) 1.409

  50 E. 3. 12.
• (a) 1.410

  22 H. 6. 50.
• (b) 1.411

  2 E. 4. 8.
• (c) 1.412

  15 H. 7. 10.
• (d) 1.413

  21 E. 4. ib.
• (e) 1.414

  32 H. 6. 1.
• * 1.415

  21 E. 4. & 5.
• * 1.416

  38 H. 6. 7.
• * 1.417

  19 H. 6. 31.
• * 1.418

  32 H. 6. 6.
• * 1.419

  19 H. 6. 21.
• * 1.420

  16 E. 4. 9. 3 E. 3. Dr. 26.
• (a) 1.421

  3 & 4. P. & M. Dy. 149. 21 E. 3. 9. 6. & 7. E. 6. Dy. 81. 34. H. 6. 22 Br. Exec. 22.
• * 1.422

  6 & 7 E. 6. Dy. 81. where the heir is con∣demned by a Nihil dicit, exe∣cution shall be of lands descended by a special Ele∣git, not of his goods, &c. nor no Cap. ad satis. lyeth against him. 21. E. 3. ibid.
• (a) 1.423

  40 E. 3 29.
• (b) 1.424

  2 E. 3. 62. 22 E. 4. 39.
• * 1.425

  12 E. 2. Jur. ver 12.
• * 1.426

  4 H. 6. 15. 22 E. 4. 38. ibid.
• * 1.427

  1 E. 5. 5.
• (a) 1.428

  9 E. 4. 21.
• (b) 1.429

  Stamf. 151. b.
• * 1.430

  1 H. 7. 23. 32 H. Dy. 13. 41 E. 3. 27.
• * 1.431

  5 H. 7. 3.
• (a) 1.432

  9 H. 6. Co. 1.
• (b) 1.433

  1 H. 7. 5.
• (c) 1.434

  1 H. 7. ibid.
• (d) 1.435

  1 H. 5. Co. 441.
• (e) 1.436

  Stam. 143. a.
• (f) 1.437

  Stam. 143. c
• (g) 1.438

  10 E. 4. 14.
• (a) 1.439

  The Stat. 32. H. 8. cap. 21. so reciteth it.
• * 1.440

  Stamf. 119. b.
• * 1.441

  Stam. 116.
• * 1.442

  Br. Coro. 182.
• (a) 1.443

  Stam. 119. b.
• (b) 1.444

  Stam. 122. c.
• (c) 1.445

  4 El. 262.
• (d) 1.446

  3 E. 3. Co. 33. f.
• (a) 1.447

  33 H. 6. 36.
• (b) 1.448

  33 H. 6. 36.
• (c) 1.449

  ces Br. ass. 1 383.
• (d) 1.450

  44 E. 3. 23.
• * 1.451

  8 ass. Pl. 1.
• * 1.452

  Ces ibid.
• (a) 1.453

  19 H. 6. 65
• (b) 1.454

  34 H. 6. 16
• (c) 1.455

  14 ass. Pl. 21
• (d) 1.456

  5 H. 7. 6.
• (e) 1.457

  2 E. 4. 9.
• (f) 1.458

  22 ass. Pl. 85.
• (a) 1.459

  21 H. 6. 5.
• (b) 1.460

  5 H. 7. 6. 2 E. 4. 9.
• (c) 1.461

  44 E. 3. 18. 22 ass. Pl. 185.
• (a) 1.462

  12 E. 4. 10.
• (f) 1.463

  B. Roy.
• * 1.464

  27 H. 8. 7.
• * 1.465

  15 H. 7. 2.
• * 1.466

  33 H. 6. 9.
• * 1.467

  35 H. 8. Br. re∣plead. 54. 7 H. 7. 3.
• (a) 1.468

  14 H. 7. 12.
• (b) 1.469

  5 H. 7. 29. 33 H. 6. 37. 5 H. 7. 29.
• * 1.470

  19 H. 6. 57.
• * 1.471

  15 H. 7. 13.
• * 1.472

  15 H. 7. ibid. 5 H. 7. 29.
• (a) 1.473

  5 H. 7. ibid. 14 H. 7. 6. 46 E. 3. 11. 10 H. 6. 26. 14 H. 7. 6. 4 H. 6. 10.
• * 1.474

  5 E. 4. aid de Roy. 50. 3 H. 6. p. Pl. 216
• * 1.475

  9 H. 6. 38.
• * 1.476

  14 El. Pl. 410.
• * 1.477

  Old N. B. 171. 11. b.

  The form of the Writ of venire facias.
• (a) 1.478

  41 ass. Pl.
• (c) 1.479

  26 ass. Pl 28.
• (d) 1.480

  14 H. 4. 19.
• (e) 1.481

  21 H. 6. 30.
• (f) 1.482

  9 H. 6. 63.
• * 1.483

  28 H. 8. Dy. 30.
• (a) 1.484

  8 ass. Pl. 23
• * 1.485

  7 H. 4. 10.
• (b) 1.486

  21 E. 4. 67.
• (c) 1.487

  20 H. 6. 39. for the Sheriff.
• (d) 1.488

  38 E. 3. 25. 38 E. 3. ibid. 15 E. 4. 18. Br. chall. 68. 38 E. 3. ibid. maketh a query of this.

  15 Eliz. Pl. 425 for the Sheriff. 21 E. 4. 63. for a Juror.
• (a) 1.489

  21 H. 6. 39. for the Sheriff. 3 H. 6. 24. for the Juror.
• (b) 1.490

  11 H. 4. 26.
• (c) 1.491

  49 E. 3. 2.
• (d) 1.492

  49 E. 3. 1.
• (e) 1.493

  7 H. 4. 11.
• (f) 1.494

  21 E. 4. 67 for the Sheriff 14 H. 7. 2. for a Juror.
• (g) 1.495

  49 E. 3. 1.
• (h) 1.496

  14 H. 7. 2.
• (i) 1.497

  11 H. 4. 26.
• (k) 1.498

  20 H. 7. 2.
• (l) 1.499

  14 H. 7. 2.
• (m) 1.500

  18 E. 4. 13
• * 1.501

  7 H. 4. 17. 36 H. 8. Dy. 61.
• (a) 1.502

  15 Eliz.
• (b) 1.503

  49 ass. Pl. 11.
• (c) 1.504

  49 E. 3. 19. 21 H. 6. 3.
• * 1.505

  4 H. 7. Coro. 60 6 H. 7. 10.
• * 1.506

  19 H. 6. 18. by the common law 40 E. 3. 36.
• * 1.507

  2 Mar. Pl. 117.
• * 1.508

  Proveable of the Stat. 7. E. 4. c. 2. so reciteth it. 39 E. 3. 2. 1 Mar. Dy. 98. There must be twelve beside the four Knights Brat. 42.
• (a) 1.509

  27 H. 8. 26.
• * 1.510

  14 H. 7. 31. 4 H. 7. 3.
• (d) 1.511

  8 H. 6. 12. 15 E. 4. 24.
• (e) 1.512

  15 E. 4. 8.
• * 1.513

  27 H. 8. 26.
• * 1.514

  27 H. 8. 26.
• (a) 1.515

  49 E. 3. 1.
• (b) 1.516

  3 H. 6. 36.
• (c( 1.517

  19 H. 6. 9.
• (d) 1.518

  21 H. 7. 29. 27 H. 8. 26.
• * 1.519

  7 H. 4. 46. 7 E. 4. 17.
• * 1.520

  Stam. 157. b. Do. St. p. Br. Chal. 11 in an appeal.
• * 1.521

  20 E. 4. 11. Stam. 159. e.
• (a) 1.522

  Stam. 155. e.
• (b) 1.523

  Bract. tales. 11.
• (c) 1.524

  37 H. 6. 12.
• (d) 1.525

  14 H. 7. 2.
• * 1.526

  14 H. 7. 7.
• * 1.527

  20 H. 7. 3. 6 H. 8. Dy. 3.
• (a) 1.528

  14 H. 7. 12.
• (b) 1.529

  14 H. 7. ib.
• (c) 1.530

  13 E. 4. 3. 4 E. 6. 12.
• (d) 1.531

  13 E. 4. ib. 4 E. 6. ibid.
• (e) 1.532

  14 H. 7. ib.
• (f) 1.533

  13 E. 4. ib. 4 E. 6. ibid.
• * 1.534

  7 E. 6. Pl. 91. ibid.
• * 1.535

  11 Ass. pl. 6.
• (b) 1.536

  48 E. 3. 33.
• (c) 1.537

  9 E. 4. 34.
• (d) 1.538

  48 E. 3. ib.
• (e) 1.539

  48 E. 3. ib.
• * 1.540

  28 Ass. pl. 21.
• * 1.541

  Old N. B. 104.
• * 1.542

  14 El. D. 310. for all.
• * 1.543

  40 E. 3. 48. 39 Ass. pl. 31.
• * 1.544

  9 E. 4. 33.
• * 1.545

  9 H. 6. 38.
• * 1.546

  14 Ass. Pl. 9. 4 E. 4. 33. 14 H 6. 4.
• * 1.547

  10 El. Dy. 172
• * 1.548

  39 E. 3. 10.
• * 1.549

  39 E. 3. 20. Br. abridg. 111.
• * 1.550

  22 E. 4. Cor. 44.
• (a) 1.551

  Old Na. Br. 1
• (b) 1.552

  See the manner of wa∣ging battail & performing it. 9 H. 4. 3. in an appeal of robbe∣ry.

  17 E. 3. 2. in an appeal of murder.
• (c) 1.553

  Old N. B ib. 9 E. 4. 35.
• (a) 1.554

  Br. Chal. 196
• (b) 1.555

  3 H. 6. 55.
• (c) 1.556

  Bractod.
• * 1.557

  Westm. 1. Cap. 40 so reciteth it.
• * 1.558

  9 E. 4. 35.
• * 1.559

  1 ass. Pl. 6.
• (b) 1.560

  22 E. 4. 19.
• (c) 1.561

  6 H. 3. Coro 411.
• * 1.562

  22 E. 4.29.
• * 1.563

  Discourse of the Cust. of London, fol. 13. Stam. 108.
• * 1.564

  8 H. 6. 23.
• * 1.565

  22 H. 6. 41.
• (a) 1.566

  1 H. 6. 1.
• (c) 1.567

  9 E. 4. 1.
• * 1.568

  34 H. 8. Br. ley∣gager 97. 18 E. 4. 23. 39 H. 6. 35. 27 H. 8. 22.
• * 1.569

  18 H. 3.
• * 1.570

  15 E. 4. 25.
• (b) 1.571

  25 E. 3. 40
• (c) 1.572

  11 H. 6. 48.
• (d) 1.573

  10 H. 6. Execut. 21.
• (e) 1.574

  Br. Execu. 33
• * 1.575

  24 E. 3. 39. 18 E. 3. 4.
• * 1.576

  50 E. 3. 5.
• * 1.577

  ••2 H. 7. 18.
• * 1.578

  7 E. 6. Pl. 85.
• * 1.579

  50 E. 3. 20.
• (a) 1.580

  12 H. 4. 24. 1 H. 6. 4. F. N. B. 25. a. 1 H. 6. ibid.
• * 1.581

  48 E. 3. 1.
• * 1.582

  7 E. 4. 15. 8 H. 6. ihid. 3 H. 6. 14.
• * 1.583

  8 H. 6. 8. 3 H. 6. 13. 3 H. 6. 50. 8 H. 6. ibid. 3 H. 6. 14.
• * 1.584

  10 Ass. Pl. 12. in an assise. Old N. Br. 46.
• * 1.585

  48 E. 3. 14. Br. Som. & Seu 9. 7 H. 6. 39, 41. Br. default. 34.
• (a) 1.586

  7 H. 6. ib.
• (b) 1.587

  38 H. 6. 33.
• (c) 1.588

  18 E. 4. 7.
• * 1.589

  9 H. 5. 5. 35 H. 6. 33.
• * 1.590

  18 E. 4. 4.
• (a) 1.591

  27 H. 6. 2. 21 E. 4. 16.
• * 1.592

  39 H. 6. 29.
• * 1.593

  27 H. 6. 2.
• (a) 1.594

  27 H. 6. 1.
• (b) 1.595

  2 E. 4. 16.
• (c) 1.596

  21 H. 6. 42.
• (d) 1.597

  44 E. 3. 15.
• (e) 1.598

  27 H. 6. 1.
• (a) 1.599

  54 E. 3. 48. 11 H. 7. 5.
• * 1.600

  3 H. 6. 40. Little.
• * 1.601

  21 E. 3. 49.
• * 1.602

  21 E. 4. 16. 7 H. 6. 39. 41 Br. default. 34.
• * 1.603

  18 H. 8. 6. 41 E. 3. 1.
• * 1.604

  Br. Contin. 14.
• * 1.605

  22 H. 6. 12.
• * 1.606

  7 H 6. ibid.
• * 1.607

  8 H. 8. 6.
• (a) 1.608

  22 H. 6. 7.
• (d) 1.609

  4 H. 6. 67. 16 E. 4. 4. 32 H. 6. 33.
• * 1.610

  13 H. 7. 17.
• * 1.611

  32 H. 6. 27.
• * 1.612

  4 H. 7. 10.
• * 1.613

  4 H. 6. 67. Br. Contin. 6.
• * 1.614

  22 E. 4. 19.
• * 1.615

  38 H. 6. 33. 1 H. 7. 11. Br. default. 34. 39 H 6. 16. 38 H. 6. 33.
• * 1.616

  22 El. Dy.
• * 1.617

  2 H. 6. 4.
• * 1.618

  Old N. B. 171.
• * 1.619

  Old N. B. 170.
• * 1.620

  Old N. B. 170.
• * 1.621

  Old N. B. 168.
• * 1.622

  Stam. praer. 73.
• (b) 1.623

  27 H. 8. 28.
• (c) 1.624

  15 Dy. 320
• (d) 1.625

  27 H. 8. ib.
• * 1.626

  33 H. 6. 33 8 E. 4 4. for the D••murrer. 38 H. 6. ibid.
• * 1.627

  Old N. B. 179.
• (a) 1.628

  2 H. 4.
• (b) 1.629

  42 H. 4. 1.
• (c) 1.630

  Old N. B. 71
• (d) 1.631

  30 H. 6. 8. 30 H. 6. ibid.
• * 1.632

  Old N. Br. 171
• (a) 1.633

  Br. default 58.
• (b) 1.634

  34 H. 6. 24. 2 H. 4. Br. enq. de dam. 11.
• (c) 1.635

  9 H. 5. 15.
• (d) 1.636

  5 E. 4. 6. 1 H. 7. 1.
• (e) 1.637

  1. H. 7. 1.
• (f) 1.638

  9 H. 5. 13. 42 E. 3. 1.
• * 1.639

  The form of all these writs. Old N. Br. 106. in an assise of novel disseisin, and 25. in dar∣re••n presentment
• (g) 1.640

  F.N.B. 196 g
• (h) 1.641

  F.N.B. 50. k.
• * 1.642

  17 E. 3. 76.
• * 1.643

  5 H. 7. 40.
• * 1.644

  24 E. 3. 48. Br. resum. 33.
• * 1.645

  F. N. B. 14.
• * 1.646

  F. N. B. 16. c.
• * 1.647

  F. N. B. 52.
• * 1.648

  F. N. B. 59. b.
• * 1.649

  36 H. 8 Br. Cer∣cior. 20.
• * 1.650

  12 E. 4. 11.
• * 1.651

  3 H. 6. 3.
• * 1.652

  Fitz. N. B. 4. b.
• * 1.653

  Fit. N. B. 70. b.
• * 1.654

  Old N. B. 2. Fit. N. B. 4. a.
• * 1.655

  Old N. B. ibid.
• (b) 1.656

  F.N.B. 4. b.c.
• (c) 1.657

  F.N.B. ibid.
• (d) 1.658

  F.N.B. 125. f In admeas. of pasture.
• (e) 1.659

  F.N.B. 69. m.
• (f) 1.660

  F.N.B. 70. a
• (g) 1.661

  F.N.B. 69. m & 70. a. in a replev. & 125. f in admeas. of pasture.

  Old N. B. 2. in a writ of right.
• (h) 1.662

  F.N.B. 77. e.
• * 1.663

  3 H. 6. 30.
• (a) 1.664

  F.N.B. ibid.
• (b) 1.665

  F.N.B. 70. b.
• (c) 1.666

  F. N. B. 18. a. b.
• * 1.667

  F. N. Br. 70. b. & 18. d.
• (d) 1.668

  F.N.B. 18. a
• * 1.669

  F. Nat. Br. 4. a.
• * 1.670

  F. N. B. 22. g.
• * 1.671

  F. N. B. 3. e.
• * 1.672

  F. N. B. 17. h.
• * 1.673

  F. N. B. 24.
• * 1.674

  Old N. B. 32.
• * 1.675

  P. V. B. 249. g.
• * 1.676

  4 E. 6. Pl. 67.
• (a) 1.677

  6 H. 7. 1. c. West. 1. c. 15. Stam. 71. & 72. In case of the death of a man.
• (c) 1.678

  Stam. ibid.
• (d) 1.679

  Div. of Courts fol.
• * 1.680

  F N B. 71. c. Fit. ibid.]
• * 1.681

  Fit. ibid. 72. g. Fit. ib. 72. c. & 71. c.
• * 1.682

  Fit. ib. 71. b. Fit. ib. 71. i.
• * 1.683

  Fit. ibid. 71. e. Fit. ibid. 71. f.
• * 1.684

  Fit. ibid. 71. d.
• * 1.685

  Fit. ibid. 73. e.
• * 1.686

  Fit. N.B. 4. f.
• * 1.687

  7 E. 6. Pl. 85.
• * 1.688

  F.N. Br. 181. a.
• * 1.689

  Fit. ibid. d.
• * 1.690

  F. N. B. 77. e. 2 El. Dy. 173.
• (a) 1.691

  1 E. 4 9.
• * 1.692

  2 Eliz. ibid.
• (b) 1.693

  2 El. ibid.
• * 1.694

  F. N. B. 163. d. Old N. B. 30. Old N. B. 28.
• (a) 1.695

  Old N.B. 30.
• (b) 1.696

  22 E. 4. cons. 2.
• * 1.697

  19 H. 6. Old N. B. 31. F. N. B. Ph.
• * 1.698

  12 E. 4. 13.
• * 1.699

  Fit. N. B. 36.
• * 1.700

  38 H. 6. 20.
• * 1.701

  F.N. B. 239. d. F. N. Br. 13. g.
• * 1.702

  F. N. B. 48. h.
• * 1.703

  13 E. 3. vouch 269. c E. 1. droit. 45. c E. 1. ibid.
• * 1.704

  c E. 1. ibid.
• * 1.705

  13 E. 3. ibid.
• * 1.706

  F. N. B. 77. f.
• * 1.707

  Old N. B. 46.
• * 1.708

  F. N. B. 267. e.
• * 1.709

  F. N. B. 28. g.
• * 1.710

  39 H. 6. 38.
• * 1.711

  Old N. B. 21. 39 H. 6. ibid.
• * 1.712

  21 H. 6. 20.
• * 1.713

  Fit. N. B. 29. b 39 H. 6. ihid.
• * 1.714

  39 H. 6 38.
• * 1.715

  F. N. B. 28. e.
• * 1.716

  F. N. B. 28. g. 39 H. 6. 39.
• * 1.717

  F. N. B. 28. b.
• * 1.718

  F. N. B. 17.
• * 1.719

  19 H. 6. 57.
• * 1.720

  F. N. B. 37. f.
• * 1.721

  F. N. B. ibid.
• (b) 1.722

  F.N.B. 48. l.
• (c) 1.723

  Fit. ibid.
• (d) 1.724

  F.N.B. 48. h
• * 1.725

  F. N. B. 48. e.
• * 1.726

  F. N. B. 48. h.
• * 1.727

  F. N. B. 48. q.
• * 1.728

  10. El. Dy. 26. 8 The writ of false judgment shall be Recordare fac. lo∣quelam quae fuit in eadem curia, & not quae est, for by the judgment loque la is determined. 10. E. 3. Stam. praer. 78.
• (c) 1.729

  F. N. B. 6. 3 El. Dy. 301.
• (d) 1.730

  F. N. B. 6.
• (e) 1.731

  26. H. 8. 8. F. N. B. 31. d.
• * 1.732

  5 E. 3. 50.
• * 1.733

  34 H. 6. 2. 4 H. 7. 3.
• * 1.734

  24 H. 8. Br. fau. reco. 41.
• (a) 1.735

  26 H. 8. 2.
• * 1.736

  Lit. 3.
• * 1.737

  Park. 88.
• (a) 1.738

  18 E. 4. 13.
• (b) 1.739

  7 El. Dy. 232 18 E. 3. 5.
• (c) 1.740

  41 E. 3. trespass. 199.
• (d) 1.741

  40 E. 3. 42.
• (e) 1.742

  1 Mar. pl. 99 3 H. 7. 12. 4 E. 6. Br. co. 185
• (f) 1.743

  21 H. 7. 31.
• (g) 1.744

  3 H. 7. 12.
• (h) 1.745

  12 E 3. 12.
• (i) 1.746

  3 Mar. Dy. 120.
• * 1.747

  Stam. 133.
• (k) 1.748

  Stam. 138. ae
• (l) 1.749

  Stam. 124.
• (m) 1.750

  Stam. 136. c
• * 1.751

  Stam. 133. d. 9 E. 4. 28.
• * 1.752

  9 E. 4. 28.
• * 1.753

  Stam. 138. c.
• * 1.754

  Stam. 138.
• * 1.755

  Stam. 139. b.
• * 1.756

  Stam. 108.
• * 1.757

  5 E. 6. Br. forf. 113 Stam. 138.
• * 1.758

  Stan. 138. c.
• (a) 1.759

  Stam. 122. c.
• (b) 1.760

  4 El. pl. 262
• (c) 1.761

  3 E. 3. Cor. 335.
• * 1.762

  2 H. 4 24. 8 R. 2. avow∣ry. 94 Stam. 167. e. Stam. i••id.
• * 1.763

  14 H. 7. 15. 19. 15 H. 7. 5.
• * 1.764

  38 E. 3. Sc. fac. 77. 14 H. 7. & 15 H. 7. ibid.
• * 1.765

  F.N.B.. 167.
• * 1.766

  F.N.B. 38. b. & s.
• * 1.767

  27 El. Cor. 11. Sr. Wil. Herberts e.
• * 1.768

  4 H. 17. 22 Ass. Pl. 71.
• (a) 1.769

  Old N. B. 165. 42 E. 3. 11. 2 H. 4. 14.
• (b) 1.770

  Old N.B. ib. 2 H. 4. ibid.
• (c) 1.771

  24 Eliz.
• (d) 1.772

  24 El. ibid.
• * 1.773

  15 El. Pl. 441. Old N. B. 165.
• * 1.774

  Old N. B. 167. 17 El. Coo. 12. Sr. Wil. Herb. c. 2 H. 4. 6.
• * 1.775

  40 E. 3. 25. 49 E. 3. 2. 49 E. 3. ibid.
• * 1.776

  1 H. 7. 20.
• * 1.777

  Old N. B. 168.
• * 1.778

  Old N. B. 163. 27 El. Coo. 12. in Sr. Wil. Her. c.
• * 1.779

  Lit. 116.
• * 1.780

  8 E. 4. 15. 1 El. Dy. 167. 19 H. 8. 6. 22 H. 6 41. 2 H. 7. 3. 24 H 8. Br. pe∣remptory 63. 1 Eliz. ibid.
• (b) 1.781

  1 Eliz. ib.
• (c) 1.782

  1 El. ibid.
• (d) 1.783

  1 El. ibid. 2 El. Dy. 172. 8 E. 4. ibid.
• (e) 1.784

  26 H. 8. p. Dy. 198.
• (f) 1.785

  The Stat. West. 2. cap. 46. doth so recite it.
• (a) 1.786

  22 ass. Pl. 71
• (b) 1.787

  22 ass. pl. ib
• (c) 1.788

  23 ass. pl. 2.
• (a) 1.789

  22 ass. ibid.
• * 1.790

  16 H. 7. 6.
• (a) 1.791

  7 H. 6. 28.
• (b) 1.792

  F. N. B. b. 12 E. 4. 11. 5 H. 7. 25.
• (a) 1.793

  F. N. B. ib.
• (b) 1.794

  13 El. pl 393
• (c) 1.795

  14 H. 7. 1. 8 El Dy. 250. 21 El. So holden in the Common place, contrary to Fitz. N. B. 21. t.
• * 1.796

  1 H. 7. 19. 23 El. Dy. 375.
• * 1.797

  F. N. B. 17 & 18.
• * 1.798

  18 E. 4. 9.
• * 1.799

  9 ass. Pl. 21.
• * 1.800

  Br. attaint. 42.
• * 1.801

  39 H. 6. 1. 3 H. 6. 29.
• (a) 1.802

  25 H 8. Dy. 5 26 ass. Pl. 12.
• (b) 1.803

  13 E. 4. 5.
• (c) 1.804

  34 ass Pl. 6. 26 ass. Pl. 2.
• * 1.805

  Br. attaint. 42.
• * 1.806

  Old N. B. 111.
• * 1.807

  Old N. B. 112.
• * 1.808

  22 H. 6. 8.
• * 1.809

  35 H. 6. 30.
• * 1.810

  19 ass. Pl. 15.
• * 1.811

  34 H. 8. Dy. 53.
• * 1.812

  22 H. 8. 56.
• * 1.813

  48 E. 3. 20.
• * 1.814

  12 H. 4. 6. 15. Br. Audit quae∣relae. 15. 22 H. 6. 56. 12 H. 4. ibid. 47 E. 3. 1. 17 E. 3. 3. 28 E. 3. p. Old N. Br. 66.
• (a) 1.815

  11 R. 2. Su∣persed. 14.
• (b) 1.816

  2 H. 7. 12. 22 H. 6. 34.
• (c) 1.817

  43. E. 3. 28. F. N. B. 104. q. cont.
• (d) 1.818

  F.N.B. 204. q.
• * 1.819

  22 H. 6. 56. 15 E. 4. 5.
• (a) 1.820

  F. N.B. 6. b. 158. d. 134. a. Old N.B. 15. 35.
• * 1.821

  F. N. B. 263. c.
• * 1.822

  F. N. B. 263. d.
• * 1.823

  F. N. B. 263. c.
• * 1.824

  F. N. B. 264. a.
• * 1.825

  45 E. 3. 23.
• * 1.826

  F. N. B. 83. c.
• * 1.827

  F.N.B. 82. a.c.
• (a) 1.828

  F.N.B. 230. a
• (b) 1.829

  F.N.B. 231 g
• (c) 1.830

  F.N.B. 230 a
• (d) 1.831

  F.N.B. 230 a & 231. g.
• (e) 1.832

  F.N.B. 230 a
• (f) 1.833

  Fit. ibid. F. N. B. 229. b.
• * 1.834

  Old N. B. 15.
• * 1.835

  F N B. 169.
• * 1.836

  F. N. B. 79.
• * 1.837

  Old N. B. 33.
• (a) 1.838

  F. N. B. 54.
• * 1.839

  F. N. B. 185. d.
• * 1.840

  F. N. B. 234.
• * 1.841

  Old N.B. 34. & 35.
• * 1.842

  Old N. B 35. a. F. N. B. 63. a.f.
• * 1.843

  F. N. B. 63.
• (a) 1.844

  F. N. B. ib.
• (b) 1.845

  F.N.B. 63. 6.
• * 1.846

  F. N. B. 269.
• * 1.847

  F. N. B. 163. n.
• * 1.848

  F. N. B. ibid.
• * 1.849

  F. N. B. 163. k.
• * 1.850

  F. N. B. 1••4. c.
• * 1.851

  F. N. B. 170. b.
• * 1.852

  F. N. B. 156. g Old N. B. 103.
• * 1.853

  F. N. B. ibid. 1 H. 7. 9. Old N. B. ibid.
• * 1.854

  1 H 7. 9.
• * 1.855

  F. N. B. 25. c.
• * 1.856

  Old N. B. 29. a. & b.
• * 1.857

  F. N. B. 176. a.
• * 1.858

  Old N.B. 175. b.
• * 1.859

  F. N. B. 55. e. 14 H. 8. 6. Shelly
• * 1.860

  The form of the Writ. F. N. B. 8. c. 14 H. 8. ibid.
• * 1.861

  Old M B. 159.
• * 1.862

  F. N. B. 158.
• * 1.863

  F.N.Br. 235. b.
• * 1.864

  F. N. B. 226. i.
• * 1.865

  F.N.B. 165. a.d.
• * 1.866

  F. N. B. 165. c.
• * 1.867

  F. N. B. 85. b.