Law

Statutes.

37. H. 8. Cap. 19. By assent of ordinary, incumbent, and Patron, under their seals, an union may be made of two Churches, being not above six pound yearly value in the Kings books, nor distant one from another above a mile; saving to the King his tenths, and first fruits.

In corporate Towns it must be by assent of the Corporation.

If such a poor Parish shall within a year assure by writing to the incumbent and his successors, eight pound yearly, the union shall be void.

Ouer and besides those Corporations that were at the Common law, there be diverse others which have grown of later time, by a special foundation and election, whereof some are aggregate of many persons, that is to say, of a head and body: other consist in one singular person.

These Corporations are all of them Temporal or Spiritual.

The Temporal, made by the King, as Major and Comminaltie; and many moe which he maketh or may make every day. Also Colleges, as master & fellows, &c. diverse Towns are so incorporate before time of memory, with power to hold plea, by Writ of ex graui quaerela, or such like, and are called Boroughs, from whence come the Burgesses to the Parliament: and this maketh the difference between the Borough and a Town. So that vpland Towns which are not ruled and governed as a Borough is, are but Towns, though they be enclosed in walls, as Ludlow, & such like. And every Borough is a Town, but not e conuerso. The names of all the towns in England, and which are so incorporate, and which not, are of record in the Exchequer.

The spiritual ones were for the most part made by the Pope, but had their power to purchase from the King. And these likewise are of two sorts, for either they are Regular or Secular.

Regular, which have entered into Religion, (and thereupon called religious) professing to vow three things, Obedience, voluntary Pouerty, and perpetual Chastity. Wherefore these are dead persons in the accompt of Law. Only their head hath power to purchase or do such other things to the use of the house. And of this sort are Abbot and Convent, Prior and Convent, &c.

Secular, are such as have entered into Religion; as the Bishop and his Chapter, Moster of an Hospital, and his Brethren, or confreres, gardian of a chapel, & the chapl • ns, &c. Also Archdeacons, & such like. Touching the Bishop & his chapter (which make but one body) their possessions are divided: so as the Bishop hath part by himself, & the Chapter the residue. Which chapter consisteth of a Dean, as the chief, & prebendaries, or such like, who are most properly termed the chapter: & of these also, their possessions for the most part are divided: the Dean having some part sole in the right of his deanrie: & the particular Prebendaries some other part in the right of their Prebends: the residue the Dean & Chapter have together. And every of them is to such purpose incorporat by himself.

And these spiritual corporations are sometimes presentative, sometimes dative, (perpetual or remoueable) sometimes electiue, & have a common seal, according as their corporatiō is. To them also personages may be appropriate, by the patron, Ordinary, & king, & vicars, endowed to serve the cure. Wherupon a praecipe qd reddat lieth against the vicar only, without naming of the person, for he alone is Tenant of the freehold, and may have a iuris vtrum, (or other action) against the person. All which is to be understood of an ancient indowment, but not for lands whereof he is endowed by the Ordinary.

Statutes.

Magna Charta cap. 36. A gift of lands to a Religious house, to take it back to hold of them, is merely void, & the Land forfeit to the Lord.

Stat. de Religiosis, cap. 1. Land given in mortmaine, under color of a term, forfeit to the Lord, the immediate Lord hath one year to enter, the next Lord half a year, and so from Lord to Lord, till it come to the King.

Westm̄ 2. cap. 41. The King (founder of a Religious house) may seise lands which he gave them, if they alien.

See all the statutes of the dissolution of Monasteries, Chaunteries, &c.

Prerogatiue.

The King shall have to his own use, & therefore may let to farm rendering a rent, all the possessions of a fool natural, not of any other Ideot during his ideocie, but not that which he hath title unto by entry or action. And therefore upon an office (finding that the Idiots ancestors died seised of an estate tail) it is sufficient to traverse the dying seised, for that only intituleth the King.

Statutes.

Prerogatiue cap. 9. The King shall have the custody of their lands during their life. Prerogatiue cap. 10. And of Lunatickes, during their Lunacie, to their own use.

When one hath the possessiō of anything to another's use, this use at the Common Law, was accounted nothing, but as a matter in conscience and Chancery only. Whereupon these Statutes following were made.

1. R. 3. cap. 1 Cesti qui use may grant the land, or suffer a Recouerie of it.

4 H. 7. cap. 17. The heir of Cesti qui use, (of land holden by Knights service) shall be in ward, and pay relief.

19. H. 7. cap. 15. Execution upon judgment, statute, or recognisance, shall be good against Cesti qui use.

The heir of Cesti qui use of land in Socage, shall pay relief, heriot, &c.

27. H 8. ca 10. Where any be seised to the use or trust of another, Cesti qui use, or trust, shall have the possession in such quality, manner, and condition, as he had the use or trust. So when any be seised to the use or intent that another shall have a yearly rent out of the same lands, Cesti qui use of the rent shall be deemed in the possession thereof, of like estate as he had that use.

27. H. 8. cap. 16. Bargaines and sales to raise an use of inheritance or freehold, must be by deed indented and enrolled within six months, in a Court of Record at Westminster, or in the County where the land lieth.

Sundrie men possessing the same thing by purchase, are Iointenants, or Tenants in Common.

Iointenants which possess by the same title. As if two, three, or more, be infeoffed of certain lands, to hold to them and their heirs, or during their own or another's life, or disseise another to their own use, or a lease be made, or a horse, or other Chattell personal given unto them.

And here the suruiuour shall have the whole in the same sort as he had his part, excepting only present interests of the thing it self granted by him that dieth.

As a Lease for years, though the Lessee never had possession, or though it be to begin at a day to come, and the Iointenant which made it, die before the day; bindeth the Suruiuor: for the Lessee hath a present interest.

Otherwise it is of a grant to have a lease, if the grantee pay x. l. before midsomer next, and the Iointenanr which made the grant, die before the day: for there is no interest at all, but a communication only, till the monie be paid. Otherwise it is also of a rent charge granted out of the land whereof they are Iointenants: for that is no interest in the land it self.

Tenants in Common are they which possess by several titles.

As if two Iointenants be, and one alieneth his part to another, the Alience, and the other Iointenant, are Tenants in Common: for the Alienee cometh in by one of the Iointenants feoffment. So if three Iointenants be, & one alien that which to him appertains in fee; the Alience is of this third part tenant in common, with the other two Iointenants: but they remain still Iointenants of the other two parts. So if land be given to two men or two womē, and the heirs of their two bodies engendered: the Donees have a Ioint estate during their lives: but their issues are Tenants in Common of the inheritance. For euey one claimeth as heir of the body of his father. And it is impossible that two men or two women should have one heir of their bodies between them begotten.

So if land be given to a Major & Comminaltie, and their successors, & to I. S. for I. S taketh in his own right, and the other in the right of the corporation. And therefore upon a feoffment to a corporation, & another person, there must be several liueries, in respect of their several capacities, which maketh them tenants in common.

So if lands be given to two, Habendum the one moitie to the one, & the other moitie to the other. In like sort if a lease for years be made to two, or two buy a horse or ox, and one grants that which to him appertains of the term, horse or ox to another.

To possessions this is general, that they may be granted.

Statutes.

3. H. 7. cap. 4. All deeds of gift of goods and chattels made of trust to ones own use, shall be void.

13. Eliz. cap 5. made perpetual.

27. Eliz. cap. 1. Every gift, grant bargain, and conveyance, of lands & chattels, or of lease, rent, common, or other profits out of them, and every bond, suit, judgment, and execution since the beginning of her Majesty's reign, or hereafter to be had or made, for the defrauding of any persons iuct action, suit, debt, account, damage, penalty, forfeiture, heriot, mortuarie, or relief, shall be void against that person, his heirs, executors, &c.

The parties or priuies knowing such a fraudulent gift which shall justify it to be done bona fide, or shall alien such things so to them conveyed; forfeit one years value of the lands or profits out of it, & the whole value of the goods and chattells, & the sum of such couenous bonds, & shall have half a years prisonment: this act extēdeath not to commō recoueries, nor vouchees in a formdon, nor to any gift, &c. bona fide, & upon good cōsideratiō to any person, not knowing of any fraud.

27. Eliz. cap 4. Every conveyance, grant, charge, lease, estate, incumbrance, and limitation of use of Lands, tenements, or hereditaments, made since the beginning of her Majesty's reign, or hereafter to be made, for the defrauding of purchasors of the land it self, or any part or profit out of it, shall be void against the person so purchasing for monie, or other good consideration, and against all claiming under him; with penalty, as in the former statute.

This extendeth not to the avoiding of any grant &c. upon good consideration and bona fide If any such conveyance &c. be made with a clause of revocation or alteration at his pleasure, by writing; and after he shall bargain, demise, sel, grant, convey, or charge the same lands &c. for monie or other good consideration (the conveyance not revoked or altered) then the conveyance &c. shall be void against the bargainees, &c. and all claiming under them (lawful morgages only excepted.)

Prerogatiue.

Every grant made by the King, upon surmise or suit of the party, shall be taken most beneficially for the King, and against the party Soas a pardon to the Sheriff ex specially gratia & mero motu of all misprisions, offenses, contempts, and deceits, shall discharge him of an amerciament, for returning of one Quarto exactus, where indeed he was outlawed. But if himself sue for such a pardō, he must have express words, otherwise it will not help him.

His grant shall not be taken to two intents; that is, Shall not inure to any other intent than that which is precisely expressed within the grant.

As if he grant an office for life to an Alien, it is nothing worth: for it cannot inure also to make him a Denisen.

If he grant land to A. in fee, which A. is his villain; this shall not manumise him: for the villenage is a foreign matter not expressed in the grant.

But the King may create a Duke, and in that patent grant him Land by the same name, or make a Major or Comminalty, & by the same patent, give them Land, or grant them license to purchase: for these are two several things expressed in the Grant.

No grant of his is good, when it appeareth within the body of the grant, that the King is deceived.

As if he give lands to one and his heirs males. For this is a fee simple, and it is plain, the king meant to grant but an estate tail.

Statutes.

1. H. 4. cap. 6. The Kings grants shall be void, if express mention be not made of the value, in the Petition of those that sue for it.

A grant by an infant under the age of 21. years, one out of his right mind; whom we cal non sane memory, or non compos mentis, or compelled thereunto either by dures of imprisonment, or fear of some bodily hurt threatened to himself, not to his father, mother, brother, &c. as loss of life & member: or though it be but of imprisonment: for imprisonment is a corporal pain, & one may be imprisoned that he may die of it. Otherwise it is of a menace to break or burned down ones house; for that is but the loss of ones goods, is avoidable, that is to say may be avoided at any time be entry action, &c. if they deliver it with their hand: as in a feoffment, and themselves make livery, or a gift of goods, and themselves deliver them.

But if they deliver it not with their hand, as in a grant of a rent, aduowson, &c. or a feoffment by letter of Attornie, &c. it is merely void, and nothing at all passeth: So as they may have a trespass or assise, and remain Tenant to the Lord, and therefore shall be in ward, notwithstanding any such feoffment.

So of a grant made by one that hath no understanding. As if he be borne dumb, deaf, and blind. But one dumb may make a good grant, or borne dumb & deaf. For diverse may have understanding by their sight only, though dumb and blind.

Grants of an infant, in respect of having things necessary, cannot be avoided.

As a bargain for his necessary meat, drink, & apparel: for he cannot live without them.

Other grants of his where himself hath likewise benefit. We call it Quid pro quo, are only voydable, as if he let land for years, reserving a rent.

To this place belongeth exchange, which is a mutual grant of equal interests, each in exchange of other.

As of land in fee simple, for other of the same estate. But to exchange an estate pur auter vie, for an estate for life is not good. For though both have a free hold, yet an estate during another's life, is not so high a freehold, as an estate during his own life. And in every exchange there be two grāts, for each granteth to other his land in exchange. And the very word it self of exchange is necessary: For if I give to a man an acre of land by deed indented, and he by the same deed give unto me another acre for the same acre, nothing passeth without livery, if the word Exchange be not in.

Prescription is as available as any grant. As that one and his ancestors, time out of mind, have been seised of a certain yearly rent out of land, & distreyned for it being behind. Or if a velleine and his ancestors, as of villeines in gross; or that one, and those whose estate he hath in the Manor of D. have had a park there time out of mind. For of such things as cannot be granted without deed or fine, the prescription must be in him & the ancestors, whose heir he is: and not in himself, and those whose estate he hath: because he cannot have their estate without writing, which must be shown to the Court. As of a villain in gross, a hundred rent &c. Otherwise it is of things appendant or regardant to a manner

A possession is either upon a limitation, or condition, or else absolute.

Upon a limitation which ceaseth vpō the doing or not doing of something. As a lease for years, upon condition if the lessee go not to Rome by such a day, his estate shall cease. And therefore in this case the grantee of the reversion may enter, if he go not: for thereby his estate is determined & void. So if lands be given to husband and wife during the couerture: or a Parson make a leas to one so long as he is parsō; this in both cases is an estate for life upon limitation.

Upon condition, which is only defeasible vpō the doing or not doing of something. As a lease for years or life, upon condition if the lessee go not to Rome by such a day, the Lessor and his heirs may reenter. And therefore here the grantee of the reversion cannot reenter for the condition broken. So if a man by deed indented, infeoffe another in see simple, or make a gift in tail, or a lease for life or years, reserving to him & his heirs a yearly rent, payable at a certain time, upon condition, if the rent be behind &c. it shall be lawful for him & his heirs into the same lands or tenements to reenter &c. In these cases if the rent be not paid at or before the time limited in the condition; the feoffor or his heirs may enter in such lands or tenements, and them have & hold in his first estate, and thereof quit and clean to ouste the feoffee, donee, or Lessee, &c. And this is termed a condition in deed. So of such estates as have by the law, a condition annexed unto them; although it be not specified in the writing. As a man granteth to another by his Deede, the office of a Parkership of his park, to have and occupy the same office for term of his life; the estate which he hath in the office, is upon condition in Law: that is to say, that he do well and lawfully keep the park, & do that which to the office appertains, otherwise the grantour and his heirs may lawfully oust him, and grant it to another. And such a condition which is understood by the law to be annexed to anything, is as strong as if the condition were put in writing.

In the same manner it is of the grant of a stewardship, Bedleship, Bailiwicke, or other offices.

Absolute, which is neither upon limitation nor condition.

Again, possessions are in being, which properly we term in possession or in Action.

In possession, which one doth enjoy.

In action, whi • h one ought to enjoy, either in respect of a right or title.

Right is when a wrong was done before: as by wrongful entry upon his lands, or taking away his goods, &c.

Title, when no wrong was done.

As in a feoffment upon condition, and the feoffee breakech the condition.

Of things in action: as cause and matter of suit, entry to continue ones right, or upon title: as for a condition broken, & such like, no stranger shall take advantage And strangers are accounted (besides the parties themselves, which are not either privy in blood, as the heir to the feoffor: or in succession, as the successor of Major and comminalty, &c. or executor, administrator, &c. which represent the testator.

Statutes.

32. H. 8. cap. 34. All grantees of reversions may enter upon Farmors, for any forfeture (or condition) and have like advantages against them (by action only) for any other covenants, condition, or agreement contained in the Indenture of their lease) as the Lessors, their heirs, or successors might And the like for the Lessees against the grantees of the reversions (recovery in value only except.

Therefore things in action cannot be granted but to him that hath possession: and that by release or confirmation: for a release or confirmation of land to him that hath nothing in the land, is void.

Release is a passing of the grantors interest. The form whereof is, De me & hared. quietum clamaui, &c.

Confirmation is a ratifying of the grantees possession. The form whereof is. Confirmaui C. de D. statum & possessionem &c.

Furthermore, the grant of everything in action, and of such things in possession as cannot pass by livery of the hand, must of necessity be by deed. For the right of the thing Real or personal, cannot be given nor released by parol. No more can a reversion, rent, common in gross, or villain in gross, be granted by paroll.. But a horse, ox, or such personal thing, corn, & trees growing upon the ground may: and also the wardship of body or land.

So a lease for life, with a remainder over, is good without deed: for the remainder passeth by livery and seisin.

A Deede is a writing sealed and delivered. For if either a parchment with out Writing be delivered as ones Deede, yet it is not his Deed, though an Obligation be afterwards written in it: or if it be a writing but not sealed at the time of the delivery of it as his Deede, it is a scroule and not his deed. Or if I make & seal a deed, and the party take it without my delivery; I may plead it is not my deed. And belongeth always to him whose possession is made by it. As if I release to two disseisors, and deliver the Deede to one, the other surviving shall have it. Or if the Disseisee release to the Disseisor, and he make a feoffment of the land, the feoffee shall have the release. But if a feoffment to two without deed, and the writings of the land are delivered to the one, the other shall not have them: or if having two joint feoffees, I release to both, and deliver the Deede to one, the other though he suruiue, shall not have it.

But a writing read in another form to one not lettered, that is, that cannot read, is not his deed at all, though he seal and deliver it.

A deed is a deed poll or indenture.

Poll, that which is the only Deed of the grantor.

Indenture, that which is the mutual Deede of both: yet the deed of the grantor is the principal, and the other is but a counterpane. And therefore if the Lessor seal, and not the lessee, it is as good against him as if both had sealed. And if there happen any variance between the deeds, it shall be taken as the deed of the grantor is, and the other shall be intended only the misprision of the writer.

And barreth them from saying contrary to anything in the Indenture. As upon a lease by indenture or fine, both parties are estopped to say that the lessor had nothing in the land: so as if the lessor come afterward to have the Land by purchase or descent, the Lessee may enter upon him by way of conclusion, and likewise the Lessee shall by estoppell, be driven to pay the rent.

Sometime bare acts, without indenture or other matter. Work an estoppel in like sort. As if the husband discontinue the wives land, and take back to him and his wife for their lives: the wife is remitted, but the husband (by this bare taking back, is estopped to say so.

Prerogatiue.

Therefore such a one purchasing any, though it be but for years, it is the Kings.

An Estate is particular, or an inheritance,

And is Vncertaine, or Certain.

Vncertaine, which is determinable at another's pleasure, as an estate at sufferance, and at will.

At sufferance, when after lawful occupation, he continueth possessiō without authority.

As lessee for years, holding in after his term expired, and before any entry made upon him. But if he continue after entry upon him, then is he a wrong doer.

At will, when an estate is made during pleasure.

Statutes.

6. H. 8 cap 15. If the King give land, or an office, durante been placito, & after grant the same unto another: the second grant shall be void, if mention be not made therein of the first.

Certain, which is not so determinable, And is called a term, whereupon may depend a remainder or reuersiō: for a remainder cannot be but upon a particular estate precedent. As upon a lease for years or life; upon an estate to one & his heirs during the life of I S for in effect it is but an estate for life. But not upon an estate to one and his heirs, so long as I. S. hath heirs of his body; For that is a fee simple determinable. Nor at the Common law, upon an estate to one & the heirs of his body: for it was a fee simple cōditionally; neither could any reversion be of it.

Remainder, is a residue of the estate, at the same time appointed over: and therefore cannot be said to be ex assignatione, but ex dimissione of the Lessor, because it passeth at the same time.

Reuersion is a residue of the estate, not at the same time appointed over. As if a man let land for life, without saying more; the reversion of the fee simple is in the lessor. And if he afterwards grant this to another, the grantee hath a reversion.

Termes are forfeited by plucking the inheritance out of him that hath it. As if tenant for life (or years) of land make a feofment in fee: for thereby the fee simple passeth, by reason of the livery.

Otherwise it is, if tenāt for life of a reversion or rent, grant it by his deed in fee: or if tenant for life take a fine of a stranger, sur conusance de droit, or sur release; for such a fine increaseth not his estate. But a fine by tenant for life to a stranger, sur conusance de droit come ceo quil ad de son done, is a forfeiture. So if tenant for life pray in aide of a stranger, or (in a writ of right brought against him) join the mise upon the more right. And these are by reason of the estoppell.

Termes may be surrendered: that is to say, yielded up and drowned For a surrender cannot be of a fee simple. to him that the next and higher estate. As two Iointenants, and to the heirs of one, he that hath the freehold cannot surrender to the other: for both have a joint possession, and the same estate. But Tenants in Common may: As the alienee of him that hath the free hold in the former case, may surrender to the other Tenant for life, where there is a remainder for life with remainder over in fee, cannot surrender to him in the remainder in fee; for he hath not the next immediate estate. Lessee for life cannot surrender to him in the remainder for years: But to him in the remainder for life he may, for that remainder (as unto him in the remainder) i • an higher Freehold than the others estate, which is unto him but pur auter vie.

Statutes.

Glocestr̄ cap. 7. Tenant in Dower, alienating longer than during his own life, he in the reversion shall recover against the Alienee in her life time.

A term is for years, or life. The present estate for life is termed a Free-hold (in deed) if he be actually seised of it (in Law) before his entry, when it is cast upon him by course of Law; as upon the heir by death of his ancestor; upon him in the remainder by death of the particular Tenant.

A term for life is either for his own or pur auter vie, that is, for another's life, where the tenant pur auter vie dying before the other, whom we term Cesti qui vie, he that can first hap it, shall enjoy out the term, and is named an occupant, but if land be let to one and his heirs during another's life, the heir shall put out the occupant.

Inheritance followeth. Every Inheritance at the Common Law is called a Fee simple: The release whereof, or of an estate for life, is not good to one that is but tenāt for years, without privity. As if Tenant for life or in fee, release to the Lessee for years of his disseisor. But the release of a term for years to the Lessee for years of him that doth eiect him, is good enough: for there needs no privity.

And to these two estates of inheritance, and life, warranty doth belong: which is an assurance warranting such an estate: for the word Warrantizabimus, only maketh a warranty, and not defendemus. And if a lease for years be made with warranty, this sounds not in nature of warranty, but of a covenant, because it is a chattell. A •• if the Lessee be ousted, yet he may have an action of Covenant. But in a warranty of a fee or Free-hold, the party shall have no advantage unless he be tenant of the land.

Every exchange hath a warranty knit by law. And therefore the Exchangor or his heir may vouch to warranty by an exchange without deed, and his Assignee rebutte.

Inheritāce is an estate descendable: for inheritance never lineally ascends, as from the son (that purchaseth in fee simple, & dieth without issue) to the father: but always discends, as to the uncle, brother, &c. to his heirs that hath actual possession.

As if the eldest brother once enter, his sister of whole blood shall inherit, & not his brother of the half blood. But if he never enter, the brother of the half blood shall inherit as heir to his father.

An heir is the next of worthiest of whole blood: for the half blood is inheritable, being also of blood to the first purchasor.

So the blood of the fathers side is worthier than the mothers: the elder brother worthier than the rest. Therefore these shall inherit first.

So, lands purchased may go to the heirs of the part both of the father and mother of the purchasor, unless it be once attached in the heir of the part of the father; for thē the heir of the part of the mother shall never have it, because they are not of blood to him that was last seised.

But Lands descended go only to the heir of that part from whence it discends: as if from the father who did purchase it; then it may go to the heirs of the part of the mother of the same father, but not to the heirs of the part of the sons mother. For though they be of blood to the son that was last seised: yet they are not of blood to the father which was the first purchasor.

He that is begot̄ out of marriage, is called a bastard: for if a womā great with child take a husband, the issue borne (though it be within six weeks after) is no Bastard. Or if the wife clope from her husband, and continue in adultrie, yet the issue borne during that time (if both be within the four Seas) is intended lawfully begotten. And if one die, his wife priuement inseint (that is, so with child as it is not discerned) and she take another husband, the issue borne within a month (or such a time as it is impossible he should beget it) shall be accounted the son of her first husband, and such a bastard is of blood to none: in Law, nullius filius.

And therefore cannot inherit: nor bring a Writ of Detinue as heir; nor be a villain but by his own confession in Court of Record: and the land shall escheate where there is no issue but such a bastard, nor other heiere.

But marriage following after, gaineth him the right of inheritance, if after the fathers death he enter before his younger brother, or sister if both be females, borne of the same father and mother within espousals: who is called mulier puisne, and the other Bastard eigne, and continue the possession all his life without interruption. And that although the mulier puisne be an infant: because this bindeth the right. For such a bastard is a Mulier by the Law of Holy-Church: and therefore hath a color to enter as heir to his father.

If the next be women in equal distance, as daughters, sisters, Aunts, &c. they shall inherit alike, and are but as one heir, called parceners or coparceners.

Where the general entry of one, is of the rest, if they list. So is not a special entry to her own use.

As if Tenant in Taile have issue two daughters, and the eldest entereth into the whole, and thereof maketh a feoffment with warranty; this is a collateral Warrantie, and a bar to the puisne daughter for her moitie. Which proveth, That this special entry is not the entry of both: for then it were a Warrantie commencing the disseisin, and no bar. But all this is to be understood where the other coparceners list to have an entry for them, and not otherwise. And therefore in a Partitione facienda of rent, it is a good plea for the defendant if she is sole seised, without that, that she holds pro indiuiso. And the plaintiff is driven to a nuper obijt. And if one enter, both cannot be vouched as heirs, for that is to their disaduātage. But both may have an assise.

The inheritance it self that discendeth, shall be charged by the deed of the same Ancestor,

Whether Obligation, covenant, annuity, warranty, or whatsoever else: but not by any bare matter en fait, as of ones Ancestor time out of mind have been wont to pay an annuity, &c.

Binding himself and his heirs.

But if either a man bind his heirs to pay xx. l. a yere, or such like, but not himself; or himself without naming his heirs: there the heir shall not be charged, though he have assets by descent. And therefore the heir being charged only by reason of assets, when he hath assets, the same is counted his own debt, & the action of debt lieth against him in the debet & detinet, not in the detinet only. And for one acre only by descent, the heir shall be chargeable to an Obligation of 1000. l. but no other land shall be put in execution, but it. So, though it be but a reversion that discendeth: In which case the Judgment shall be Quod recuperet debitum, & damna de praedicta reuertione leuanda cum acciderit. And a special Writ shall go out to extend the whole.

Statutes.

Merton. cap. 5. A Nomine poenae shall not incur upon an heir within age.

The dying seised of the inheritance and freehold together. Not of a free-hold only, as of an estate for his own or another's life, nor of a remainder or reversion where the Free-hold is out of him.

Whereby the land discendes unto his heir. For if it escheate, as by the death of the Alience of the Disseisor, without heir, the disseisee may enter; taketh away the entry of everyone, We call it a descent that tolleth entry, whether it be of one that hath right, as in the dying seised of a disseisor, abator, or intrudor; or of one that hath but title that may have an action: as an Infant whose feoffee after his full age, dieth seised: he in the reversion, where tenant for life doth Alien, and the Alienee dieth seised; the Deuisee of land in London, if the heir enter and die seised. For the Infant may have a Dum fuit infra aetatem, he in the reversion a consimili casu, & the Deuisee in that case an ex graui querela. But if the Disseisor of the feoffee upon condition, or an Alienee in Mortmaine die seised: or if a man devise, that I. S. shall sell his lands at London, &c. and the heir be disseised or make a feoffment, and the Disseisor or feoffee die seised: yet the feoffor upon condition in the first case, the lord of whom the land is holden in the second case, and I. S. in the last case may enter, notwithstanding any descent: for they have no remedy.

But claim upon the Land within a yere before the death, it is called continual claim, or if they dare not upon the land for fear of some bodily hurt, then as near the Land as they dare, saveth their entry.

Statutes.

32. H 8. cap. 23. The dying seised of a disseisor by strength, and without title, tolleth not the entry of him and his heirs, which at the time of the descent had good title of entry, unless the disseisor had peaceable possession by five years next after the disseisin.

A fee simple, is a fee simple, conditional or absolute.

Conditional is a fee simple to one and the heirs of his body: for that is a fee simple at the Common law: but the having of issue made it a more perfect fee simple than before.

Which before issue cannot be alienated, after issue had, becometh an absolute Fee simple.

And may be alienated or forfeited by attainder of felony. But so, as if the Issue fail before the alienation, the donor, or giver, shall have it.

And this by the statute of Westm̄. 2. C. 1. being restrained from all alienation (to the prejudice of the Issues) and that so as by the very words of the Statute, a reversion depends upon it; is now become, and made by the construction of that Statute, a new kind of estate, divided from a fee simple, & called an estate Taile. Which name for plainesse sake we use hereafter, calling the other only a fee simple. And the name of Inheritance we apply indifferently to them both. In which sense all common use doth take those words.

Statutes.

Westm̄ 2. cap. 1. The Will of the giver (according to the form in the Deede of Gift manifestly expressed) shall be from henceforth observed. So that they to whō the land was given under such condition, shall have no power to alien the land so given, but that it shall remain to their issue after their death, or shall reuert to the giver or his heirs (if issue fail) neither shall the second husband of any such woman from henceforth have anything of the land so given, upon condition after the death of his wife (by the Law of England) nor the issue of the husband and wife shall succeed in the Inheritance: but immediately after the death of the husband & wife (to whō the land was given) it shall return to their issue, or to the giver or his Heirs, as aforesaid.

34. & 35. H. 8. cap. 20. No common recovery of lands in tail, of the gift or other provision of the King or his Progenitors, (though it be with voucher against tenant in tail, the remainder or reversion being in the king at the time of the recovery) shall bind the heir in tail, or bar him of his entry. Tenaunt in tail shall take no advantage for any recompense in value against the vouchee or his heirs.

Hither belong hereditaments given in frank marriage; that is to say, freely in marriage with ones Kinswoman.

For the very word Franke marriage implieth an inheritance to the Donees, & the heirs of their two bodies begotten.

But land cannot be given in Frank marriage with a man that is Cosen to the Donor, but always with a woman.

Absolute, is a fee simple to one and his heirs whatsoever: which discending to femals (if one of them have lands of the same Ancestor by frankemariage) she shall have no more unless she be content to put those lands in Hotchpot; that is, that the value thereof be allowed to the other.

As if x. acres were given to her in Franke marriage, and xx. acres more (all of equal value) descend from the same donor, she putting all together that that value may be known, shall retain her own x. and have v. acres more.

But if the lands descend from the father of the Donor, or other Ancestor, and not the Donor himself; she shall have her part in that which discendeth, without putting in Hotchpot: for she is not advanced by him, but by the other.

No more shall any Hotchpot be, but in lands given in frank marriage. For if a woman have lands by any other gift, she shall have her part of that which discendeth, as if no such gift had been. And the reason of all this is, for that (if she will not put the land in Hotchpot) the Law intendeth that she holds her self sufficiently advanced. And note, that upon the Hotchpot, the lands given in frank marriage must always remain to the Donee.

To this place are to be referred Lands given to a Corporation, which go in perpetual succession.

And therefore Lands given to a Major a Comminaltie, without saying, And to their successors, is a Fee simple, and though the Grant be for their lives. For those are void words.

And a color in an Action of Trespass, cannot be given in a Corporation by a lease for term of their lives: for being a Body political (which never dieth) they cannot have such an estate.

Here two special estates for life; dower, & Tenancie by the courtesy of England, do arise after ones death that hath an inheritance joined with the Freehold.

For they may be of a reversion depending upon an estate for years, and consequently of the rent, if any be reserved. But not where one hath an estate for life, the remainder to another in tail, the remainder to his own right heir: whether it be a fee simple, or such an estate tail as may go to the issue had between the Donees; that wife, or that husband (if the Donee be a woman.) As if lands be given to a man and the heirs that he shall beget of the body of his wife; the same wife shall be endowed, but not a second wife. And of lands given to a woman & the heirs of her body begot̄ by the husband, her husband may be tenant by courtesy, but not a second. So of landss given before the Statute of West. 2. to a man, and a woman, and the heirs of their two bodies; the second wife shall not be endowed, nor the second husband be Tenant by courtesy, for their issue cannot inherit. But in both cases the wife of every issue (inheriting by force of that gift) shall be endowed, and the husband of every such issue may be tenant by courtesy. So of Lands given to a man and the heirs of his body, or to a woman and the heirs of her body, whatsoever wife the husband taketh may be endowed, & whatsoever husband the wife taketh may be Tenant by courtesy.

Dower is an estate whereby the woman hath the thirds in seueraltie, who must be nine years of age at the time of her husbands death. Detaining of deeds concerning inheritance descended to the heir, is a bar of her Dower, so long as she deteineth them: but so it is not of lands purchased by the heir.

If the husband at the Church door, (which is called an endowment, ad ostium Ecclesia, or, being heir apparent by the fathers or mothers consent, which is called an endowment, ex assensu patris or matris, &c. for the Son must make the endowment, and they assent, do presently upon affiance, not before espousals, endow her of any certainty, as of the whole moity, or less part, &c. this shall bar her of the thirds if she agree to it. But so shall not an endowment, ad ostium camera, nor, ex assensu fratris, or consanguinei: Therefore it is at her election after her husbands death to hold her to this endowment, or to take her Dower at the Common law. And in such endowments the wife may enter after her husbands death, without any bodies assignment, (because the certainty of the land which she shall have appeareth) which in dower at the Common law she cannot.

Statutes.

Magn. Chart. cap. 7. The wife, after the death of her husband, shall abide in his chief messuage forty days, within which time, her dower shall be assigned her If the chief messuage be a Castle, then she shall have a competent house provided her till her dower be assigned.

Westm. 2. cap. 34. A woman that leaveth her husband, and abideth with an Adulterer, shall not have dower, unless the husband (voluntarily, and without coertion of the Church) reconcile himself, and suffer her to inhabit with him.

11. H. 7. cap. 20 If a woman that hath an estate in dower for life, or in tail jointly with her husband, or only to her self, or to her use in any lands, &c. of the inheritance or purchase of her husband, or given to the husband & wife by the husbands ancestors, or any seised to the use of the husband or his ancestors, do sole (or with an after taken husband) discontinue or suffer a recovery by couin, it shall be void. And he to whom the land ought to belong after the death of the said woman may enter (as the woman had been dead) without any discontinuance or recovery: Provided, that she may enter after the husbands death. But if the woman were sole, the recovery or discontinuance barreth her forever

This act extends not to any recovery or discontinuance with the heir next inheritable to the woman, or by his consent of Record enrolled.

27. H. 8. cap. 20. Where an estate is made in possession or use to husband and wife, and his heirs, or the heirs of their two bodies, or to them for their lives, or for the wives life for her Iointure, she shall not have any dower: upon a lawful euiction of that Iointure, she shall be endowed according to the rate of land of her husbands, whereof she was dowable.

Such a jointure being made after marriage, the wife (after her husbands death) may refuse it, and betake her to her dower, unless the Iointure be made by Act of parliament.

Tenancie by the courtesy of England is •• estate, whereby of an actual possession, the husband that had issue by her borne alive (whether the issue be male or female, heard, or seen, and whether it afterwards die or live, or if the issue be borne alive, it is sufficient, though it be not heard to cry (in as much as he may be borne dumb) shall have the whole.

But no tenancie by courtesy shall be of a possession in Law. As where lands descend to the wife, and she dieth before the entry by her, or her husband, or any for them. Nor of a thing in suspense: As where tenant in fee of the Land, marrieth a woman that is seised of the seigniorie in fee; the husband can never be tenant by the courtesy of the Seigniorie: for by the intermarriage it is suspended. And it is called tenancie by the courtesy of England, because no other Realm useth it.

Prerogatiue.

All land is holden of the King immedidiately, or by means: himself having not any higher upon earth, of whom to hold.

Escheates of all cities appertain unto the King All mines of gold and silver or wherein the gold and silver is of the greater value, are the Kings.

Among coparceners the eldest upon partition shall have the chief house.

Seisin delivered of land, we cal it livery of seisin; & the making of the estate we call a feoffment, always passeth a Free hold, though he be but Tenant for years, at will, or sufferance, that maketh it. And otherwise a free hold of land cannot pass save by release & confirmation, where they were by way of enlarging an estate. As a lease for years, and afterwards release or confirm to the Lessee, to have and to hold to him for life, or to him & the heirs of his body, or to him and to his heirs, &c. for a feossement with livery made by one to his Tenant at will, or for years, is void, except it be by Deede, and then it shall inure by way of confirmation.

Exchanges, endowments, & surrenders.

Liuerie within the view, so we call An estate made within view of the land, be it by delivery of a Deed of feoffment within the view, or otherwise, is a good Liuerie of seisin, if the other enter in the feoffors life time: else the land discendeth to the heir of the feoffor, and the feoffment shall never effect.

Prerogatiue.

The King may distreine in another land of the same man's for his seigniorie or rent charge, but so shall not his Grauntee. 9. H. 6 9. is, That a common person cannot distreyne for his seigniorie, but in the land holden of him, except it be by his Tenants grant. But the King may in any place. 13. E. 4. 6. is, That the King for his services or for a rent charge, may distreine in all his Tenants lands. But so shall not the Kings Grantee.

Statutes.

Marlb. cap. 15. Distresses shall not be taken in the High way or Common street; but by the King or his Officers having special authority.

Artic Cler. ca. 9. Nor in the ancient fees of Churches.

The distress being put in pound ouert, or open pound; that is, some place where the owner may lawfully come at them, as if they be things that have life, to give them meat &c he that distraineth shall not be charged, what hurt soever they receive. for quick Chattel must be put in pound ouert, that the owner may give them sustenance: dead, need not. But if they be marred in his default that distreyneth, he shall answer for them.

Statutes.

Marlb. cap. 4. None shall lead distress out of the County where they were taken. The neighbor that doth it to his neighbor, shall be fined. The Lord that doth it to his Tenant, shall be amerced.

1. & 2. Phil. & Mar̄ cap 12. No distress of Cattle shall be driven out of that hundred, rape, wapentake, or lat • , where it was taken: except to a pound ouert within the Shire, not above three miles from the place where it was taken. No distress taken at one time shall be impounded at several places, whereby the owners shall be constrained to sue several repleuies, the pain of both these v. l. and treble damages. No person shall take above iv. d. for the poundage for any whole distress impounded: & where less hath been used, there to take less, upon pain of v. l. and loss of the money he he hath taken above iv. d. any prescription notwithstanding.

Bare heredieaments that may be distrained for, are a Seigniorie, & Rent-charge.

Seigniories are services whereby lands are holden.

Seruices are common to all certain Estates, or proper to Inheritances.

Common, as fealty, and rent service, whereof fealty is incident to every such estate. For Lessee for life or years, shall do fealty of common right.

But Tenant at will shall not, because he hath no sure estate. And therefore the seigniorie or tenancie being altered (whether by descent or grant) it must be done anew.

All other both common and proper) grow by reservation.

Fealtie is an oth to be faithful to his Lord for the tenements.

Rent service is a rent to be paid to the Lord at certain set times.

And to this place we may refer all services that lie in fesance. As to be ones butler, to cover his house, to scour his ditches, &c. But a reservation of things in prender or vser, as to have Cōmon for four beeues, or four cart loads of wood, maketh no Tenure.

Of which kind, two among the rest are specially to be considered; that is to say, frank almoigne and divine service.

Franke almoigne is, when a man of the Church holdeth freely in alms: For if an Abbot, tenant in Franke almoigne, alien to a secular man, he shall do fealty to the Lord, because a secular man cannot hold in frank almoigne. And the Tenant in this case holdeth of the Donour, and is within his fee. For the Kings grantee of straies infra seoda sua shall have them in lands holden of him in frank almoine. And the tenant shall have against him a Writ of mesne, or Ne injust vexes. And if the Abbot tenant in frank Almoine, and all the monks die, the lord shall have the escheat; for the which he is bound to say prayers, & these prayers are the services But because the prayers are not limited in certain, he neither shall do fealty, nor is subject to distress or Cessauit, if they be not done.

The Lord must warrant such a tenant against himself and his heirs, and save him harmless of all manner of services against the Lord's above, which we call acquitaile.

Divine service is a spiritual kind of service limited in certain. As to distribute in alms to an hundred poor men, an hundred pence, &c.

These are the services whereby every certain estace may be holden.

There follow those proper to Inheritances.

The grantee whereof shall hold of the grantor by such services as he holdeth over, if other services be not reserved. As if there be Lord, and tenant by Knights service, and the tenant before the Statute of Quia emptores terrarum infeoffe a stranger of the Tenancie, without anything reserving: Now the feoffee and his heirs shall hold of the feoffor & his heirs by Knights service.

Or the grantor may appoint him to hold of the next Lord. As if before the Statute of Quia emptores terrarum, there were Lord mesne and Tenant, and the tenant infeoffe a stranger to hold of the mesne; this is good, and the feoffee shall hold of the mesne by the same service that his feoffor held, and the feoffor cannot reserve new services, for to them the mesne is a stranger. But if the feoffment were to hold of the Lord paramont, that were void. So if the feoffment were to hold of any other stranger.

Statutes.

18 E. 1. Quia emptores terrarum. In all feoffements to one and his heirs, the feoffee shall hold his land of the chief Lord of the fees by the same services that the feoffor held before. If the feofment be made of parcel he shall hold of the chief Lord pro particula, according to the quantity of the land, & the feoffor set free for the part.

A mesne, that is, he that holdeth over if it be by no greater services than the tenant holdeth of him, we cal it oueltie of services, whether they be the same as each of other by xx. s. or less as he by xx s. and the tenant of him by xxx. s. must acquit the tenant of all manner of services against the lords paramout.

But Donees in frank-marriage cannot hold but by fealty. And therefore a gift in frank-marriage, rendering a rent, the reservation is void, for it is contrary to the nature of a frank-marriage, which is, to render nothing till the fourth degree be past. Some think the reservation good, and the frank-marriage thereby destroyed. But all agree, that the franck-marriage and the reservation cannot stand together. And that of the donor till the fourth degree be past. And therefore a gift in frank-marriage, the remainder in tail to a stranger, is a good frank-marriage, for the reversion of the fee is in the donor, which maketh a tenure between them: otherwise it is, if the remainder were in fee. who must also acquit them of all manner of services. And therefore the Donees in frank-marriage may have a Writ of Mesne.

Prerogatiue.

One that holdeth of the King, as of his person, which is a tenure in chief. But if a Prince of Wales, before Statute of Quia emptores terrarum, make a feoffment to hold of his person, and after is made King, this is no tenure in chief, for a tenure in chief is the highest & most honorable service in law, because it is to the chief head of the body of the Realm, and therefore must be immediate unto the King, & take his original creation from the King himself, not from a subject. So to hold of the King, as of his honor of Gloucester is no tenure in chief; for it is not of the Kings person, alienating the Freehold without license, forfeiteth the Land.

Statutes.

Mag Chart. cap. 31. By a common Escheat. of a Baronie, &c. to the king, the Tenant shall not hold in chief.

1. E. 6. cap 4. No more when a Seigniorie cometh to the King by treason or dissolution.

1 E 3 cap. 12. The King from henceforth shall not hold as forfeit such lands if they be alienated, but shall have a fine for them in the Chancery.

Seruices proper to estates of inheritances, are homage and suite of Court. For Tenant for life shall not do nor take homage, but only tenant in fee simple or in tail, in his own or another's right. As the husband for lands that he so holdeth in the right of his Wife, if he have an issue by her, shall do homage in her life time; but not after her death, if he holds himself in as Tenant by courtesy. Neither can a man at this day make a manner notwithstanding that he give Land to many severally in tail, to hold of him by services & suite of Court, for he may make a tenure but not a Court, for a Court cannot be but by continuance time out of mind.

Homage is an oth of fidelity, acknowledging himself to be the Lord's man: wherein the tenant must be vngirt, uncovered, kneel upon both knees, and hold both his hands together between the lords hands sitting before him. This is to be done only to the Lord himself. But the Lord's Steward or Bailife may take fealty for him, and but once during the Tenants life. So as having done it once, he neither shall do it again to the heir of the Lord, or grantee of the services, nor to the same Lord, if other lands do afterwards descend to the Tenant that are holden by homage of him. And though it be in the Kings case.

Prerogatiue.

The Kings Chamberlain shall take homage for him.

Statutes.

33. H. 8. cap. 22. A fee set down for respiting of homage in the Exchequer or other Courts.

When an inheritance descendeth to coparceners, the eldest only shall do homage,

Prerogatiue.

But if they hold of the King, all of them must do it.

When one and his Ancestors, whose heir he is, have held by homage of a Lord and his Ancestors, whose heir the Lord is, time out of mind, and the Lord hath received homage, for the Alienee of Tenant by homage ancestrell, holdeth not by homage ancestrell, nor shall have warranty from the Lord, because the continuance of the tenancie in the Tenant is discontinued. No more shall the Tenant himself by homage ancestrel, if he alien in fee, and afterwards take it back again. And if the Lord by homage auncestrell grant his seignorie, the Tenant need not atturne, unless the grauntee will warrant the land to the Tenant and his heirs, for otherwise his warranty were lost, because by atturnment the homage auncestrell is destroyed. that bindeth him to warrant and acquit the Tenant. And the tenant may have a Writ of mesne. But if the Lord have not received homage, he is not bound. Therefore such a one may compel the Lord to receive his homage by a Writ de homagio capiendo.

Suit of court is a service by coming to the Lord's Court. For suit of Court one shall be distreyned and not amerced, which proveth it to be suit service. But for a suit real (which is to come to the Leet) he shall be amerced and not distrained: yet a tenure to come to a leet or hundred, and to do there some special service, as to be a Crier, &c. is a good service, but not suit service. And every suit service is intended to a Court Baron.

Land in the Lord's hands (whereof several men hold by suit of Court) is termed a Manor: the land considered apart from the service, is termed demesnes.

Statutes.

Marl. ca 9. None shall be distrained to do suite of Court unless he be specially bound to it by his Charter of feoffment; except such as they or their ancestors were wont to do it, forty years before the making of this Statute, whether they were infeoffed by deed or without.

The eldest Coparcener shall only do suite of Court, and the other parceners contribute. And where there be many feoffees, the Lord shall have but one suite, and the feoffees contribute.

The particular kinds of services (whereby lands of inheritance are distinguished) be Socage and Knights service: both draw unto them certain commodities to the Lord, partly in the tenants life, and partly after his death.

That in his life is a reasonable aide or portion towards the making of the Lord's eldest Son a Knight; and towards the marrying of his eldest daughter. It is called aid pur fair fits Chiualier, and pur file marier. And if the Lord confirm to his tenant to hold by fealty and certain rent, releasing all other services and demands; yet he shall have reasonable aide, for it is incident to the services, and not released by those words.

Statutes.

Westm̄ 1. cap. 31. Reasonable aide shall be twenty shillings for a whole Knights fee, and as much for xx. l. land in Socage: & so after the rate of more, more, and of less, less. The time of leuying it to make his son Knight, must be when he is fifteen years old; to marry his daughter when she is seven. If the father after the aid levied die before he marry his daughter; the fathers Executors shall be charged to the daughter of so much as the father received, or his heir, if his goods be not sufficient.

25. E. 3. cap. 11. Reasonable aid to make the kings eldest son a knight, or to mary his eldest daughter, shall be levied of all Land holden of the King, without mean, according to the rate in the former statute.

The other after his death are Wardship, and relief.

Wardship is the custedie of the body & Land of the heir within age, which shall be till xiv. of a woman.

Reliefe is a portion to be paid by the heir to the Lord.

Socage is a tenure to be don out of war: As if one hold by fealty only, or by fealty and certain rent, or by homage and fealty, or by homage, fealty, and rent for all manner of services, or by escuage certain, that is to say, by paying a certain sum of monie, as half a Mark, &c. and no more or less (howsoever the Parliament assesse it) towards finding of a man for the war whē the King makes a voyage royal towards the Scots, &c. or by paying a certain Rent for Castle-ward, &c.

Where the next of Kin, to whom the inheritance cannot descend, As if land descended of the part of the father, then the mother, or next cosine of the mothers side: if of the part of the mother, then the father, or next friend of the fathers side shall have the heirs wardship till xiv. to the Heirs own use. And therefore must render an account to the heir at his full age, of the issues and profits of his lands, & of the value of his marriage, if he marry him within fourteen years of age. And if he die before the heirs age of fourteen, yet his executor shall not have the Wardship; no more shall the husband after the death of his wife, Guardian in Socage. But if the wife be Guardian in Socage, and the husband (or they both by indenture) let the land; yet the wife after her husbands death may enter: for in as much as she hath it only in the right, and to the use and benefit of the Infant, the ordering and directing of this land shall not be taken from her by any act of her husband.

Statutes.

Marleb cap. 17. Guardian in Socage may not do wast, exile, nor destruction, nor give nor sell the marriage but to the commodity of the heir.

Here for relief the Lord shall have presently so much as one years rent amounts unto. As if the tenant hold of the Lord by Fealtie, and x. s. rent payable at certain terms of the year (as half yearly or quarterly) then the Tenant shall pay unto the Lord x. s. for relief over and above the x. s. that he shall pay for the rent, and that by & by, without tarrying till the day of payment of his rent, & of what age soever that the heir be.

Prerogatiue.

Tenure by Socage in chief giveth the King primer seisin, or the value of that land by a yere, if the heir be of the age of xiv at his ancestors death: therefore there the heir shall be driven to sue his livery, but not if he be under xiv, at the death of his ancestor. And if being under xiv he sue his livery, it shall be vna cum exhibibus; but not if he sue it at xiv. If one hold of the Kings person to do something concerning war, but not to be performed by the person of a mā, as to give him yearly a bow, sword, dagger, &c. it is called petty Sergeantie, and is but a tenure in Socage.

Knights Service is a service touching war to be don by the body of a man. As if one hold by Escuage uncertain, that is to say, by being himself or some other for him with the King 40 days well and conveniently arrayed for the war (if he hold by a whole knights fee; or 20 days if he hold by the moity of a knights fee, & so by proportion) whensoever the King maketh a voyage royal into Scotland, &c. else to pay so much money as shall be assessed by parliament. Or if a man hold of any Lord to keep his Castle in time of war (which is called Castle-gard) or to blow a Horne in time of invasion by enemies, which is called Cornage.

To all knights service homage is incident, but not unto Socage. Here the Lordship is the Lord's to his own use, Therefore his executors shall have the ward during the heirs nonage & that til xxj of an heir male. And therefore if the lord marie a male that is his ward, before 21. yet he shall be in ward for the land til that age.

Statutes.

Mag chart. ca. 3. The lord shall take Homage of the heir before he have wardship.

Marl c. 6. If one infeoffe his heirs within age to cause the lord to lose his Wardship, & die, yet the lord shall have the wardship.

So when a fraudulent feoffment is made by a Tenant, upon condition to reuers, after certain years, to him or his heirs, if the feoffees pay not a certain sum, to the value, or more than the value of the Land. In this case the Lord shall have a Writ, de custodia reddenda; and if (being able to aver this matter) he recover, yet the feoffees shall have the Land again, when the heirs come to age. The Lord not being able to aver this, shall render the feoffees their costs and damages.

32. H. 8. Cap. 1. Two Iointenants or more, and the heirs of one holding of the King, and he that fee dieth, the King shall presently have the wardship and marriage of the body of his heir, if he be within age. Sauing to every woman her dower of two parts of those lands, divided from the third part, as above said, and not otherwise, and saving to the King during the Wards minority, the reversion of such Iointenants, and Tenants in dower.

Magna Chart. Cap. 3. The heir being made Knight within age, yet the land shall remain in the Lord's custody to the end of the term.

The wife shall be barted of her dower, both dower at the Common law, and dower ex assensu patris, or, ad ostium ecclesiae, so long as she deteineth the heir from him. But in pleading she must show the heirs name, and whether it be male or female.

Wardship of the body giveth the Wards marriage to the Lord, as a thing of mere right, pertaining to him. And that whether he will be married by the Lord or not.

Statutes.

Merton. Cap. 7. The Lord marrying the heir within fourteen years of age, in such sort as he be disparaged, shall loose the custody and whole commodity of the wardship, if the Wards friends complain of it.

The heir full of age shall satisfy his lord for the value of his marriage, as much as any man would give, before he receive his land.

Merton. Cap. 6. An heir, after fourteen years of age, marrying himself without the Lord's license (who tendereth to him a couenable marriage) the lord shall hold the land, after the heirs full age of one and twenty years, so long till he may receive the double value of the marriage.

Westm̄. 1. Cap. 22. The Lord may hold the land of heirs females, two years after their age of 14. within which two years, if he marry them not, they shall go quite, without giving anything for the Wardship or marriage. And if they will not accept a couenable marriage tendered by the lord, he shall hold the land til xxj and over, till he have taken the value of the marriage.

4. & 5. Phil. & Mar. cap. 18. A woman above xii, & under xvj, agreeing to a person that contracteth matrimony with her contrary to the form of the stat. (which see fo. 〈…〉 ) the next of her kin to whom the Inheritance should come after her death, shall from the time of such assent, have all the lands, &c. which he had at the time in possession, reversion, or remainder during her life.

If one hold sundry Lands of diverse Lord's, the wardship of body goeth to the Lord of that land which the Tenant held first. Who is called a Lord by priority, and the other by posteriority. And it is the feofment of the land which maketh the priority: for the pleading is, That he holdeth this land of him per antiquius feoffamentū, then he holdeth the other land of the other. Therefore if the Tenant of Lands holden by priority, maketh a feoffment in fee, and take an estate back again in fee, this land shall be holden by posterioritie. But if the lord by priority grant his seigniorie in fee, yet the tenure shall be of the grantee by priority. So though the grantor take an estate of the Seigniory back again in fee.

Prerogatiue.

The King shall have the wardship of body, though the tenure of him be by posterioritie. But his Grantee of the Seigniory shall not.

The eldest child whether son or daughter, being heir apparent to the father, shall not be in ward for his body during his fathers life. But if one having a son, take a wife seised of Knights service, and hath another son by her, and after the wife dieth: this second son shall be in ward during his fathers life, unless the husband be entitled to be tenant by courtesy.

Prerogatiue.

Tenure by Knights service in chief, giveth to the King the wardship of all other lands also. And further, primer seisin, or the value of them all by half a yere (if the heir were in ward) by a whole year (if he were not) which primer seisine must be paid, and relief also.

Reliefe for land holden by Knights service, amounteth to an C. s̄ for a whole Knights fee, to a C. marks for a Baronie; and to an C. pounds for an Earldom.

Mag. Chart. cap. 12. calleth this old Reliefe, & according to the old custom of the fees, which proveth that statute to be but an affirmance of the Common Law.

If the heir be within age at the Tenants death, no relief shall be paid to the lords that are to have the Wardship. And if one hold of several common persons by Knights service, the Lord's by posterioritie shall have no relief, because they are to have the Wardship of the Land holden of them, though the Lord by priority only have the wardship of the body. But if in that case there be any Land holden by Knights-service in chief, the heir at his full age shall pay relief to the other lords. For there the King hath the Wardship of all his lands.

Prerogatiue.

Grand Sergeantie, that is to say, Tenure of the Kings person, for every grand Serieantie is a tenure in chief, being of none but of the King, to do unto him a more special service whatsoever by the person of a man, as to bear his banner or Lance, to lead his horse, to carry the sword before him at his coronation, to be his sewer, butler, or caruer, to be one of the chamberlains of the receipts of the Exchequer, or to find a man to war for him wheresoerver within the four Seas, for if he can find none to do the service for him, he must do it himself, is a special knights service in chief, where the king instead of relief, shall have the value of the Land by a year.

Statutes.

Merton Cap. 4. The Lord of wast woods and pastures, may approve against his Tenant, if he leave sufficient common and pasture to his Tenant, with egress and regress according to his land.

Westm̄. 2. Cap. 46. Such a Lord may approve in like sort against his neighbors which have common appurtenante, and for his Wind-mill; necessary increase of Court, or Court-lodge.

Hither belongeth chemin, or way over ones land from one certain place to another, whether from close to close, or from his house, or the kings high street, or church. and other Hereditaments of like nature.

Statutes.

19. H. 7. cap. 15. Upon a feoffment made to the use of a villain, the Lord may enter into the land it self.

Prerogatiue.

The Lord cannot seise his villein in the Kings presence.

The children of a Villeine are also Villeines. And if one confess himself a Villeine in Court of Record, the issue he had before are frank: but those born (b) after are villeines.

Villenage beginneth by confessing a man's self to be one in a Court of Record. And therefore in a Praecipe quod reddat, if the Tenant say that he is Villeine to I. S. & holds the land in Villenage; the demandāt saith he is frank, &c. and he is found frank by the Jury: yet he remaineth a Villein to I. S.

A Villeine is set free, we call it manumission or infranchisement, when the lord enableth him to possess anything against himself. As by granting him an annuity, making an obligation or lease for years unto him, or a feofment of any lands by deed, or without: & whether it be in fee simple, fee tail, or for life. But to make a lease at will unto him, is no infranchisement: for he hath no certainty of his estate, seeing the Lord may put him out when he will.

Statutes.

9 Ric. 2. cap, 2. In a suite by the Villeine against his lord, the lords shall not be barred of their villeins, because of their answer in Law.

Statutes.

5. E. 6. cap. 16. The office or deputation of any office, or any part thereof which concerneth the administration or execution of Justice, or the receipt, controllment, or payment of the Kings monie, &c. or surety of the Kings lands or customs, or any administration of necessary attendance in the Kings Custom-house, or the keeping of the Kings places of strength, or the Clarkship of any Court of Record, shall not be bargained & sold, or any reward or agreement of reward taken for it, upon pain, that the seller, &c. shall forfeit all his interest in the office or deputation, &c. And the buyer be a disabled person, to occupy or enjoy the same: And all bonds, &c. to be void, as against him by whom they are made. Provided, That all Acts executed by any person offending before he be removed from his office, &c. shall remain good.

This Statute extendeth not to any office of inheritance, nor to any Parkership, nor to any offices to be given by the chief Justices of the Kings bench, or Cōmon place, or by any Justices of Assise.

Statutes.

27. H 8. cap. 24. No subject shall have authority to pardon any felony, or any Accessaries to felony, or any outlawrie for such offenses. Nor to make any Justices of Eyre, Assise, Peace, Jail-delivery. All original Writs, indictments of Treason, Felonie, and Trespass, and Processe upon the same, shall be only in the Kings name. And the Teste in his name that hath the Franchise.

Every Writ and Enditement whereby a thing is supposed to be done against the Peace, shall be supposed to be done against the Kings peace only, and not against the peace of any subject.

The King shall have all fines, issues, amerciaments, & forfeitures lost by any Officers of Franchises for non execution, or insufficient retornes of process, or for any misdemeanor concerning their office, with many prouisoes in the same statute.

The kinds of Franchises are diverse, & almost infinite.

Of such sort are the liberty of having a Court of ones own; of drawing causes out of the Kings Court into his own. In the first case we call it tenere placita, when he is to hold it before his bailif in such a place, and therein a man may prescribe. (In the other case we call it Conisance of plea: and that lieth not in prescription but in demād, and is always of Record) of returning Writs, &c. Also Warrens which a man may have in another's land, as well by the Kings grant, as by Prescription. And if the King grant to one Warren in his land, and afterwards the grantee alien the land, reserving the franchise. Markets, Fairs, tolle of every buyer for things he buyeth there, not being for his own expenses, For neither shall the seller pay toll, but the buyer: neither shall a man pay toll for the things he bringeth to the Faire, but for the things he selleth. But by custom he may for everything brought to the Faire, & for his standing also. and whatsoever liberties & commodities else that (created first by the kings special grant, or of their own nature belonging to him) are givē to cōmō persons to have any manner of estate in.

Statutes.

32. H. 8. cap 1. He that hath Lands, Tenements, or hereditaments in Soccage, and none holden by Knight-service, or Soccage in chief, may devise all by his Will in writing, or give all by an Act executed in his life. So may he that hath land holden by Soccage in chief, & other holden of a common person by Soccage, & none holden by Knight service: saving to the king, primer seisin, relief, suing of the same out of the Kings hands; fines for alienation, &c. & all other duties for the Soccage in chief, as before hath been accustomed.

He that hath land, &c. holden by Knight service (whether he have other lands hold̄ of the King, or of any other person, by Knight service, or otherwise, or not) may do the like for two parts in three to be divided in certainty, for the advancement of his wife, children, and payment of his debts. Sauing to the King the Wardship, or primer seisin, of the third part, without any charge, dower, &c. and fines for alienation.

He that hath lands, &c. holden by knight service (whether of the King alone by a Knight Service not in chief, or of a Common person, or some holden of the King, some of a common person) and other lands in Soccage, may devise by Will, or give by any Act executed in his life, two parts of that holden by knight service, and all the Soccage: Sauing to the Lord of the land holden by Knight Service, the Wardship of a full third part thereof, without any charge, dower, &c.

Provided, That everyone shall sue his livery, relief, and heriot, as if this Act had never been made.

34 H 8. cap. 5. The former Statute shall be extended to inhable devises or other acts only of lands in fee simple.

And if the party that maketh the Will or other Act, be seised in Coparcenarie, or in Common, it shall be good for so much as in himself of right is.

The wardship, relief, primer seisin, &c. shall be of lands that descend immediately after the death of him that maketh the will or other act, as well in fee-tail as in Feesimple: and the devise of two parts residue shall be good, though it be of all his fee simple lands. Such a will shall be good for two parts (in case only where two may be devised) though it made for the whole, or more than two parts.

Such Wills made by any woman covert, or person within xxj years of age, Ideot, or non sane memory, shall not be good.

And so some other things there, for the explanation of the former statute.

Westm̄ 2. cap. 23. Executors from henceforth shall have a Writ of account, and like action and process in the same Writ, as their Testator should if he had lived.

4 E. 3. cap. 7. Executors shall have an Action for a trespass done to their Testator: as of his goods and Chattels carried away in his life, and recover their damages in like manner as he whose executor he is should have done if he had lived,

The Executors must prove or make probate of the Will (to be a true one) in the Spiritual Court, and be sworn to see it performed.

If many Executors be made, and one refuse; yet he may administer at his pleasure, and the other must name him in every Action for any duty due unto the Testator, and his release shall be a bar of the whole duty. And if he suruiue the other Executor, he shall have the action, and not the Executor of him that died.

Otherwise it is if they all refuse, for there the Testator dieth intestate.

But an Executor once administering, As if he sell land in use, appoints by the will to be sold, and the money to be disposed, &c. can never refuse after.

Executors must answer all certain duties of the Testators, But not for a trespass done by him, burning of a Writing bailed unto him by Deede indented; receipt of rents, or occupation of other men's lands, as Bailife, having sufficient of his Chattels which we call assets entermaines, to do it. And therefore shall be charged of their own goods, if they waste the Testators.

But so, as duties that grow by specialty are to be answered before other duties, and legacies to be last of all delivered: without which delivery, the deuisee can neither enter into a Tearme, nor take a chattell personal devised to him. But upon a lease devised for xx: years to one for the fi • h x. years, the remainder or remnant of the term to another: or devised to one for so many years as he shall live, the remainder to another: a delivery to the first Deuisee serveth for him in the remainder also. So, though it be but the occupation of a term, which is so devised: for the occupatiō and profits of the land is all one with land it self. But if the occupation of a Book, glass, or other Chattell personal be devised to one for life; and after his death, to another in like sort: there a delivery to the first is no delivery to the other; for their occupations are several, and in such Chattels personal, the occupation is distinct frō the property.

In these devises the Testators intent (standing with the rules of Law) shall be taken. As where a man deviseth Lands (deuisible by Custom) to his son and heir after his wives death; the wife hath an estate during her life, by implication, in the intent of the devise. A devise to one and his heirs males, is an estate tail. But a devise to I. S. in fee, upon condition, if he pay not to I. D. a certain sum of monie, then I. D. to have it in fee; is a void Condition and remainder, for it is contrary to Law. But a devise of the Fee-simple to Alice S. and after her death to B. is only an estate for life, the remainder for life to B the remainder to Alice in fee. So as the husband of Alice (if she die in the life of B) cannot be Tenant by Curtesie.

The Executor of an Executor, is Executor to the first Testator, and may have an Action of Debt for the arrearages of an Annuitie due unto him.

Statutes.

25. E. 3. Cap. 5. Statut. 4. Executors of Executors shall have Actions of Debt, Account, and of goods carried away of the first Testators: and execution of Statute merchants, and Recognisances made unto him.

If no Will be made, the Ordinary shall administer all the chattels that were in his possessions. For he which had the charge of his Soul in his life, is presumed the fittest person to have the care of disposing his goods in pios vsus after his death. And therefore the Ordinary may seise the goods and must keep them without wasting, & may give, alien, or sel them at his will, and dispose the monie coming thereof ad pios vsus. And if he do not so he breaketh the confidence which the law reposeth in him. But yet this gift or alienanation remaineth good by law. Howbeit being a spiritual governor he shall not be subject to temporal suits, nor have any Actiō of debt or otherwise for anything due to or by the intestate.

Statutes.

Westm̄ 2. cap. 19. The Ordinary shall answer for debts wherein the Intestate was bound, as Executors should.

31. E. 3. cap. 11. The Ordinaries shall depute next friends of the intestate to administer his goods, who shall sue and be sued, and be accountable to the Ordinary, s as Executors should.

21. H 8. cap. 5. Administration shall be committed to the widow of the Intestate or to the next of his blood, or to both, at the discretion of the Ordinary. Where diverse persons next of the blood (which in deed are in equality of degree with the intestate) claim administratiō, or where one only claimeth it as next of the blood (where in truth diverse are in equality of kindred, as aforesaid) the Ordinary shall be at his choice to accept one or moe, making request. Where but one or more, and not all (being in equality of kindred) make request; the Ordinary shall be at liberty to admit the widow, and him or those only making request, or any one of them, at his pleasure. The Ordinary shall commit administration according to the rule aforesaid, upon pain of ten pound.

The Statute Magna Chart. Cap. 18. is, That the Kings debts shall be levied of the dead man's goods, and the surplusage delivered to the Executors Saluis pueris, & vxori rationabilibus partibus, which proveth that this rationabile parte was at the Common law.

But whether any Will be made or no, his wife, and such children as are not advanced by him in his life (as if a daughter be couenably married by him, this is a sufficient advancement) shall have a part to their own use; that is to say, one third of all (after his debts paid) to his wife, and the other to his children. And a Writ de rationabili parte bonorum is given to recover it.

Prerogatiue.

Treasure hid in the earth, not upon the Earth, nor in the Sea, and coin though not hidden, being found is the Kings: we call it Treasure-troue.

Cattle also that stray into another's land are the kings after a yere and a day, if being proclaimed at the Market in two several towns next adjoining the owner do not claim them. For if a Lord keep a stray three quarters of a yere, and yet within the year it strayeth again, and another Lord getteth it, the first Lord cannot take it again: for till a year and a day past, & Proclamation made, he hath no property. And therefore the possession of the second Lord is good against him.

Goods wrecked are also his.

Statutes.

West. 1. c. 4 Where a man, dog, or cat escape alive out of ships, it shall be no wreck. But the things shall be prised by the Sheriff or Coroner, and delivered to those of the Town where they be found, to answer for them. So as if any within the yere and day prove that the goods be his, they shall be restored to him.

The King being Tenant in Common of an entier Chattell personal, shall have the whole. As if an obligation be made to two, or two possessed of a horse, and one is attainted, the King shall have the whole duty of the Obligation, and the horse.

Goods that belong to an Alien enemy, anybody may seise to his own use. But an Alien borne in amity may have property in goods, and buy and sell, & their bargains good: and may also bring personal Actions.

The taking of goods by an Alien enemy in battle, deuesteth the property from the owner▪ if he come not before Sun set to claim them.

Church-wardens are inhabled to have goods to the behoove of the Parish. For they are charged to find diverse things belonging to the Church, as ornaments, and such like: And therefore in reason they should be inhabled to purchase goods. And thereto extendeth their Corporation. And all the Church goods, as books & ornaments, bells hung up in the Church, are theirs, and they may have an appeal of robbery of them, or a trespass, and count, to the damage of the parishioners. But they cannot give or release them, for that is to the disadvantage of the Church. And if they do, the Parish may choose new Church-wardens, who shall have an Action of account against them. But church-wardens are not inhabled to take a feoffment, a lease for life, or perhaps for years, or such other things as have continuance.

Statutes.

Westm̄ 1. cap. 33. He that publisheth any false news and tales, whereby discord, or occasion of discord and slander may grow between the King and his people, or the Nobles, shall be kept in prison until he hath brought him forth into the Court, that did speak the same.

2. R. 2. cap. 11. The like for him that telleth false lies of Nobles and great Officers of the Realm, whereby discord may arise between the said Lord's and Commons.

12. Ric. 2. cap. 11. In the case of these former Statutes, if the party cannot bring forth him that spake the same, he shall be punished by the advice of the Counsel.

But two above the rest do here require more special consideration; that is to say, Disturbance, and Nusance.

Disturbance is the hindering of that which in right belongeth unto one to do. As for a man to use his Common; to reduce a water-course that is misturned, to present unto a Church, &c.

Nusance is annoyance done to ones hereditament. As leuying a Faire or market to the Nusance of another Faire or Market, building a house so near mine, that the rayn which falleth from that house falleth upon mine, &c.

All manner of nusances are to be removed, and common nusances, As a wall, &c. built upon the Highway, trees growing upon the river bank, whereby a water-course is stopped, any man may pull down.

Deceit, when the damage groweth by an undue sleight. As if a man purchase a writ in my name out of the chancerie, I not knowing of it, whereby I am to pay a fine; or if one (whom I make my Attornie in a plea of land against finee) make default, whereby the land is lost: Or if in a Praecipe against diverse Tenants, a man purchaseth a protection for one of them, supposing him to be beyond-sea in the Kings service, where indeed he is and always hath been in England, by means whereof the demandant is delayed: or if in a Praecipe quod reddat, the Sheriff return the tenant summoned, where in deed he was not, whereby he looseth the land: or if in play one win another's monie with false dice, or if he that felleth anything do upon the sale, warrant it to be thus and thus, whereby the other is deceived. So that the warranty must be parcel of the contract: for if it be after, (at another place) or a servant make the warranty upon the sale of his masters goods (which in law is the masters sale, & warranty of the servant) it is a void Warrantie, and no Action of deceit lieth upon it. Also the warantie can reach but to things in being at the time, not to things to come: as that a horse (c) will carry you xxx miles a day: nor to things which ma • be discerned by my five sēces to be otherwise; as cloths of murry color to be blew, unless the buyer in this case be blind. But where they are warrāted to be of such a length, & are not, there an action of deceit lieth: for that cannot be discerned by sight, but by a colaterall proof, the measuring of them.

Statutes.

32. H. 8. cap. 28. All Leases by deed indented for life or years, by any person of full age, having an estate in fee or in feetaile, in his own right, or in the right of his Church, or wife, or jointly with his wife, shall be perfectly good.

This extendeth not to Leases of land in the hands of any farmour, by virtue of any old Lease, unless the same be expired surrendered or ended within a year after the making of a new; nor to the grant of any reversion, nor to any lease of land which hath not most commonly been let, or occupied in farm by the space of xx. years next before, nor to any lease made without impeachment of Wast, or made for above xx. years, or three lives from the day of making. And that there be reserved yearly payable to the lessours, their heirs and successors, according to their estates, the rent accustomably yielded within twenty years next before: which heirs and successors shall have the like advantage against the Lessees, their executors and assigns, as the Lessor himself might. Provided the wife be made party to every lease by the husband of any land of her inheritance The Lease to be made by Indenture in both their names, and she to seal the same, and the rent to be reserved to the husband and wife, and her heirs, according to her estate of inheritance.

13. Eliz Cap 10. All grants, Feoffements, Leases, and other conveyances and estates, by any Master or Fellows of a College, Dean and Chapter, Master or Gardein of an Hospital, Parson, Vicar, &c. other than for xxj years, or three lives, from the time of such lease or grant, reserving the accustomable yearly rent, yearly payable, shall be void.

14. Eliz Cap. 11. The Statute 13. Eliz. Cap. 10. before, shall not extend to grant assurance, or lease of any house in City, Borough, Town corporate, or Market town, or within the Suburbs, (the same not being their dwelling house, or having above ten acres of ground belonging to it.) Provided the lease shall not be made in reversion, and the accustomed yearly rent shall be reserved, the Lessees charged with reparations, and it shall not be above forty years. No alienation shall be of such houses, unless that presently upon such alienation there be an absolute purchase in fee simple of other Lands of as great value.

18. Eliz. Cap. 11. All leases made by such persons (as 13. Eliz. Cap. 10. before) where another lease for years is in being, not to be expired, surrendered, or ended within three years next after the making of such new lease shall be void. All bonds & covenants for renewing or making of any lease, contrary hereunto, or to 13. Eiz. Cap. 10. before, shall be void.

1. Eliz. not printed, the like (as 13. Eliz. Cap. 10. before) for Archbishops and Bishops, unless it be of estates made to the King, his heirs and successors.

32. H. 8: cap. 28. No fine, feoffment, or other Act by the husband only, of any land being the inheritance or free-hold of the wife, shall be a discontinuance or preiudicial to the wife, or such as have interest after her death: leases within the compass of this Statute only except.

Warrantie of an estate of inheritance, or for life, descending upon him that ought to have such estate, maketh a discontinuance. As if tenant in Taile of an Aduowson in gross, suffer an usurpation by six months, the release of a colateral ancestor with warranty is a discontinuance, for he hath fee by the usurpation.

So it seemeth of a collateral ancestors release, with warranty to the Grantee in fee of a rent or aduowson in gross by Tenant in Taile. But if Tenant in Taile of a rent or aduowson in gross grant it in fee, with warranty; this is no discontinuance, but at the pleasure of the issue.

Discontinuance taketh away the entry of those that come to have title after his death. If he (whose entry is barred by a descent or discontinuance) have the freehold cast upon him by a new title, he shall be in of his ancient title: which is termed a remitter. As if the heir of the disseisor (in by discēt) make a lease for life to I. S. the remainder for life or in fee to the disseisee, if Tenant in Taile discontinue, & then disseise the discontinue, & die seised, whereby the lands discends to his issue; if the husband make a feoffment in fee of land in the right of his wife, and take back an estate in fee to him and his wife. In these cases the disseisee after the death of I. S. the issue in Taile, and the wife surviving, her husband is remitted: but if the husband suruiue, her heir is not; for there is another tenant of the Freehold, against whom he may bring his Action. And in the case of Tenant in tail before, though the heir of the Discontinue were within age at the time of the descent to the Issue in tail, yet his entry is gone for eve, r by reason the Issue is remitted.

Prerogatiue.

But against the King, Induction only doth it. Therefore at the Common law, in a Quare impedit, Plenartie day of the Writ purchased, is a good plea, though it be by institution only. And the Plenartie by six months (which barreth the right Patron of his Quare impedit, by the Statute Westminst. 2. Cap. 5.) is accounted from that time between common persons. So is it for the King when he presenteth. And in these cases the Ordinary may certify a plenartie without making mention of any induction, but of admission and institution only. But against the King plenartie is accounted from the time of induction, and not before. And if a Patron that holdeth of the King, present, and die after admission and institution of his Clark, and before induction; the King shall present a new. Otherwise it is in the case of a common person. But Plenartie is no plea in a Quare impedit, against a person impersonee (that is, a Spiritual Body politique, which being Patron, hath the Church appropriated in succession, (viz.) to hold to their proper use, without presentation, institution, or induction of any incumbent) for his plea must be, That the Church is full of his presentment, which a person impersonee cannot say.

Statutes.

Westm̄. 2. Cap. 5. Vsurpation upon Gardeins tenants in Dower, or upon femes covert, or houses of religiō in time of vacation, shall not put the heirs fems, or houses of religion out of possession. But faint recoueries shall not be avoided in such cases by way of plea.

Plenartie is no plea in a Quare impedit, or darreine presentment, if the Writ be purchased within vi months.

When one parcener presents in another's turn, yet this gaineth no possession: for the other may present when her turn cometh again.

Prerogatiue.

Here (viz.) of land, which is a thing permanent for things tronsitorie and remoueable: the King may be put out of his possession, and have his Action according, as rauishment of gard, Quare impedit, &c. But of things permanent he cannot have an Action, as a Praecipe quod reddat, eiectment of ward, &c. because of such things he cannot be put out of possession: the King having possession by matter of Record, or other good title, none can put him out. But if having no title by matter of Record, or otherwise, he enter upon me & put me out, there if I enter again, my entry is lawful, and no intrusion. So if the king seise upon an office, finding that his tenant died seised but of an estate for life, the reversion to another; he in the reversion may enter, and make a feoffment: for the King seizeth by color of a Record, which Record giveth him no title indeed.

Statutes.

6. R. 2. ca. 6. If the woman after rape, consent, as well she as the ravisher be dishabled to have any heritage, dower, or Ioint-feofment after the death of their husbands and Ancestors, and the next of blood shall have title to enter incontinently.

Statutes.

31. E. 3. cap. 3. No man nor town shall be charged in the Exchequer, by the extract of the Justices, of the Chattels of fugitiues, or felons, if they can show that another is chargeable.

1. Ric. 3. cap. 3. No Sheriff, Under-shetife, or escheator, Bailife of Franchises, nor any other person, take or seise the goods of any person arrested, or imprisoned, before that such persons, so arrested and imprisoned be convict, or attainted of such felony, according to the Law of England: or else the same goods otherwise lawfully forfeit, upon pain to forfeite the double value of the goods so taken, to him or them that shall be thereby indammaged, by Action of debt in this behalf to be pursued.

The blood also is here corrupted. So as a remainder to his right heir, can never take effect. The eldest son attainted of felony in his fathers life time, and him surviving, or his issue (if he die before) cannot inherit: and besides, shall be an impediment, that the younger brother cannot, but it shall go to the Lord by escheat. Otherwise it is if the eldest son die without issue in his fathers life time.

Lastly, the wife looseth her dower, And notwithstanding the husband alien the same before the offense committed.

Statutes.

1. E. 6. cap. 12. No dower shall be forfeit, by the husbands attainder, of any murder, or felony whatsoever.

Prerogatiue.

Those that fly for fear of the offense (we call it a Fugam fecit) forfeit their thattels Accessaries after the fact, that is to say witting mainteiners (and if it be of one outlawed in the same County, though they have no other notice of it) as by receiving one that flieth for it into his house, and shutting the door, so as the Country thinking him to be there, he escape whilst no man followeth him; aiding him with money, but not with good words, as wholesome advise speaking or writing for his delivery, And therefore also that suffer one arrested whether by themselves or any other to escape which we call a voluntary escape, are guilty of the same offense.

Prerogatiue.

Concealing the offense, without discovering it unto the king, or his Council, or to some Magistrate, is called misprision, and that forfeiteth (a) chattels, and hereditaments during their life.

Prerogatiue.

The King, both here, and wheresoever the offender was dispunishable of wast (as if he were seised of land in the right of his wife) is utterly to wast the inheritance, by rooting up the houses & trees, plowing up the meadowes, digging up the land, &c. And this is in detestation of the offense.

Statutes.

Magn. Charta, cap. 22. The King shall have the land by a year and a day, & then render it to the Lord of the fee.

Prerogatiue, cap. 15. giveth the king the profits by a year and a day, and moreover the wasting of it.

Statutes.

21. H. 8. cap. 7. (made perpetual, 5. Eliz. cap. 18.) The servant that hath any goods or chattels delivered him to keep by his master, and (with an intent to steal) doth either go away therewith, or being in service, imbezle, or convert the same to his own use, shall be judged a thief, if the value of the goods amount to xl. s.

This extendeth not to Apprentices, or any person within eight years of age.

Inn-keepers must answer for goods of their guests stolen: though they let them have a chamber with a key unto it, to keep their goods in. But if the guest suffer with his good will a stranger (whom he knoweth not) to lodge with him in the chamber, and the stranger rob him, the Inkeeper shall not be charged. Otherwise it is, if he be lodged there by the Inn-keeper.

Prerogatiue.

Goods confisked; that is to say, which the thief, attainted for stealing another thing, for if it be for stealing the same goods they are said to be forfeit, and not confisked, disclaimeth to have any property, in and waifes; that is to say, which a thief (but not one that committeth a trespass) waiueth; are the Kings, if he (whether any officer of his, or the Lord of the Franchise, seise them before the party from whom they were stolen. But if the party from whom they were stolen seise them first, (though it be not in xx years after they be stolen) or doing his diligence to apprehend the thief, which is called fresh suite; whither the thief be taken at his suite or not, convict him afterwards upon an Appeale; he shall have his goods again.

Statutes.

21. H. 8. cap. 11. The party shall have restitution of his goods without fresh suite, if he or any for him give in evidence, by reason whereof the other is attainted.

The stealing of goods which exceed not the value of xii. b (called petty Larcenie) is a felony (for a man may justify the calling of one thief for such an offense) that doth only forfeit his Chattels.

Statutes,

21. E. 1. Stat. de male fac⃛ in parcis: It is no Felonie for Forresters to kill misdoers, if they will not submit themselves.

But if one live a year after an act committed, which was the cause of his death, as beating, poison given him, &c. it is no felony in him that did the Act: but this death shall be accounted a natural death.

The killing of one by chance (which we call by misfortune, or misaduenture) in the doing a lawful act. But not if A. B. be fighting and C. coming between to part them, be slain by either of them both without any ill intent, for that is felony at the least if not murder, in him that killeth C. because the thing which they were doing was unlawful, or in his own defense, which we call Se defendendo, flying as far as he may to save his life, for otherwise it is felony, though the other pursue him, doth only forfeit his chattels, and he must have a charter of pardon.

Statutes.

Gloucest. cap. 9. He that killeth a man by misaduenture, or se defendendo, must put himself upon the country, and if he be found to have done it so, the King if he please may pardon him.

Marlb. cap. 25. To kill a man by misaduenture shall be no murder.

But the killing of one that attempteth to rob him (whether upon the Highway, or when men come to his house, & compass it about to burn it (though they do not burn it) whereupon he issueth out & killeth one of them, is neither felony, nor causeth any forfeiture at all.

Prerogatiue.

Any unreasonable thing killing a man: As the wheel of a mill, when one falleth from the bridge into the water, and is carried by the violence of it under the outward wheel; the task of Corn that a man falleth from, and so receiveth his death: it, and everything moving with, it is forfeit to the King. As if a man being upon a Cart carrying Faggots, and binding them together, fall down by the moving of one of the horses in the cart, and die of it: both that and all the other horses in the cart, and the cart it self, are forfeit. And these are called Deodands.

Statutes.

25. E. 3. de prodicionibus cap. 2. It is made high treason to kill the Chancellor, Treasurer, or Justice of either Bench.

Justices of Eire, or of Assizes, or any other Justices assigned to hear and determine in their place, doing their office.

To counterfeit the kings money.

To bring false coin into this Realm, counterfeit according to the money of England (knowing the same money to be false) to merchandise, or make payment with it.

To counterfeit the Kings great seal, or privy seal.

1. Mar. cap. 6. Seal manual, privy Signet, or privy seal.

Strange coin currant in this Rlalme.

1. & 2. Ph. & Mar. cap. 11. To bring wittingly false foreign coin hither, to the intent to utter it within the Realm.

1. Eliz. c. 11. To clip, wash, round, or file, any money of this Realm, or currant here: and causeth forfeiture of land for life only. But no dower shall be forfeited, nor blood corrupted.

18 Eliz. cap. 1. To Impaire, Diminish, Falsifie, Scale, or Lighten any money by any Art, ways or means whatsoever.

1. Eliz. cap. 1. Aduisedly, maliciously, and directly, to affirm, set forth, and defend the third time by express deed or act, or to put in ure, or to execute anything, for the defense or setting forth of the spiritual authority or jurisdiction of any foreign person, heretofore claimed or used in any of the Queens dominions.

So for any person compellable to take the Oath.

To refuse (after lawful tender) the Oath to acknowledge the Queen supreme governor in all causes within her dominions.

13. Eliz. cap. 1. To put in ure any bull, or instrument of absolution, or reconciliation from Rome, or to take upon one (by color of any such to absolve or reconcile any person, or to publish any such Bull or instrument. To receive such absolution, or to procure, abet, or counsel any offender to uphold him. To practice to absolve, persuade, or withdraw any person within the Queens dominions, from their natural obedience, or (for that intent) from the Religion now established here, to the Romish religion, or to move them to promise obedience to the Sea of Rome, or other Estate, or willingly to be absolved, withdrawn, or to promise such obedience.

1. Eliz. cap. 6. Maliciously, directly and advisedly, to say or hold opinion (the second time) that the Queens Majesty, or her heirs of her body, be not right Kings and Queens of this Realm, or that any other person ought to be.

Their abbettors, procurers, counsellors, aydors, &c. To affirm by any writing, printing, deed, or Act: The first time, their abbettors, &c.

33 H. 8. cap. 20. Attainder of high treason by the course of the common law, or statutes of this Realm, shall be of as great force as an attainder by Parliament. And the King shall have the real possession of everything forfeited without inquisition, or office: saving to strangers, &c.

29. Eliz. cap. 2. No attainder of high treason (for which the party is once executed) shall be impeached for any error, by the heirs, or any claiming under them.

26. H. 8. cap. 13. & 5. & 6. E. 6. cap. 11. Any offense (made treason heretofore) done out of the limits of the Realm, shall be inquired here by Commission, and like process used, as if it had been don within the realm.

One resiant out of the limits of the realm, may be out-lawed for high treason.

An estate tail shall be forfeit for Hightreason.

Statutes.

36. Ed. 3. cap. 15. All pleas which be pleaded in any of the Kings Courts, before any of his Justices, or in his other places, or before any of his other ministers, or in the Courts and places of any other Lord's within the Realm shall be pleaded, shown and defended, answered, debated and judged in the English tongue, & that they be entered and enrolled in Latin.

Of all apparent faults proceeding from the Action, As in false Latin or default of form in the writ, insufficiency in an office or Inditement, misawarding of Processe (as if of an exigent where no exigent lieth:) impossibility in the plea, as in account, supposing him to be his Receiuor for vii years, and the defendant pleads, fully accounted such a day, which is the first of those vii years; The Court must take notice. To abate the Writ, award a Supersedias upon those offices, Indictments, or Processe, to stay Judgment if the defendants plea be found against him, &c. though the party except not to it. And therefore although he that casteth an Essoyne cannot plead in abatement in the Writ, by way of plea; yet if it be a matter apparent to the Court, (as Henricus, &c. Dux Hiberniae, where it should be Dominus) he & every other stranger, as amicus curia, may. And the Court is bound to abate it ex officio, though the Tenant or defendant make default.

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

To every Court do belong both Clerks and Officers.

A Clarke 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. As a good original Writ or precept ill entered in the Rolle. A Writ against A. and B. and the whole Processe continued against B. &C. not A. and B. a Scire facias out of a fine & parcel of the land omitted.

Statutes.

14. E. 3. cap. 6. No Processe shall be adnulled or discontinued by the Clerks mistaking in writing one syllable or one letter too little, or too much, but shall speedily be amended, without any advantage 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 depending by adiournement, errors, or otherwise, may make such amendment as well after judgment as before.

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

8. H 6. cap. 12. No judgment or Record shall be reversed or adnulled for error, assigned in rasing or interlining, adding, subtracting, or diminishing of words, letters, titles, or parcel of letters in any Record, Processe, or warrant of Attorney, original Writ, or judicial Pannell, or retorne, though to the Judges of the Courts wherein the said Records and Processe be certifyed (by Writ of Error, or otherwise) the same appear suspected. But the Kings Judges of the Courts where the said Records and Processe be certifyed by Writ of Error, or otherwise, shall examine the same by themselves and their Clerks, and amend therein (in affirmance of the first Judgment) all that seemeth to them to be the Clerks misprision: Except Appeales, Indictments of Treason, and of Felonies, and the Outlawries of the same. And the substance of the proper names, syr-names, and additions, left out in original Writs of Exigend, and other Writs containing Proclamation. And if any Record, Processe, Writ, Warrant of Attorney, Return, or Pannell, to be certified defective, otherwise than according to the writing which thereof remaineth in the Treasury, Courts, or places from whence they be certified; the parties in affirmance of the Judgments of such Records or Processe, shall have advantage to allege variance betwixt the same Writing and the Certificate: which being found and certifyed, the same variance shall be by the said Judges amended, according to the first writing.

27. Eliz. cap. 7. After demurrers joined and entered, the same Court may amend all imperfections, defects, & wants of form, other than those only which the party demurring shall particularly express with his demurrer.

Officers are those which are to serve the Courts Precepts, and where the Precept so requireth, to certify 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. For he returneth what they did.

But upon a Capias returned Cepi corpus, he shall be amerced if he have it not there at the day. For the Writ is, Capias ita quod corpus eius habere possis, &c. tali die, &c.

Statutes.

Westm̄ 2. Cap. 39. Dammages given against the Sheriff if he return not at all, or return a tardie, upon Writs delivered or offered to be delivered him by Billet. So upon returning Mandaui Balliuo libertatis falsely: upon resistance of any Great man to execute the Kings Precept, the Sheriff shall take the Fosse Comitatus, and see it served.

Stat. Ebora • 12. E. 2. Ca. 5. Bailifes 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 recover double damages.

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

27. Eliz. C. 12. Every Under-Sheriff, Bailife of Franchise, Deputy, or Clarke of the Sheriff, &c. must take an oth 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. Sherifes may take for the serving of any extent or execution only xii. đ. of and for every xx. s. where the sum exceedeth not C. l. and vi đ. of and for every xx s. being above an C. l. that they shall leuie, or extend and deliver in execution, or take the body in execution for.

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

Of Recorde, which are the Kings Courts, as he is King. Otherwise, if the King have a Court as Lord of a Manor, that is but a Court Baron. And these have that credit, that no auerment can be taken against anything there entered or done. And therefore work an Estoppell to the parties in like sort, as Indentures did before. As upon a Lease made by fine, both parttes are estopped to say the Lessor had nothing in the land.

So of Pleas in Barre, Replications, Returnes of the Sheriff, &c.

Statutes.

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

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

The King taketh Hereditaments, though it be but for years. Otherwise it is of an Obligation or Chattell personal, by matter of Record only: for to personal and transitory things, as Catalla felonum & fugitiuorum, wreck of Sea, treasure troue, and the profits of land of persons out-lawed in a personal Action, &c. the King is entitled without office or other matter of Record: but to take a Free-hold by a Condition broken, or purchase of his Villeine, or such like, he cannot without office or matter of Record. Otherwise it is, where the Law casts a Free-hold upon him, as in a gift in Taile, the remainder to the King.

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

Villenage beginneth only by confessing a man's self to be one in a Court of Record And therefore in a Praecipe quod reddat, if the Tenant say, That he is a Villeine to I. S. and holds the Land in Villenage, the demandant saith that is frank, &c. and he is found frank by the Jury: yet he remaineth a Villeine to I. S.

Duties of the Testator growing by record, must be answered by Executors before other duties.

Courts of Record are the Parliament, or Courts that have ordinary jurisdiction. For the Parliament when it is sitting, may take a Recognisance, and do such other things as to a Court of Record appertaineth.

The Parliament is a Court of the King, Nobility, and Commons assembled, Having an absolute power in all causes. As to make Laws, to adjudge matters in Law, to try causes of life and death; to reverse errors in the Kings Bench, especially 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 err (as it may) it can nowhere be reversed but in Parliament.

Statutes.

4. E. 3. Cap. 14. & 36. E. 3. Cap. 10. A Parliament shall be holden once every year.

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

Prerogatiue.

Statutes of restraint bind not unless they concern the Common-wealth, or he be specially named: As the Statute of Westm̄ 2. which altereth fee-simple Conditional, into an estate Taile, that Tenant in Taile shall have no power to alien, doth bind him: for it is for the Commonwealth. So as Lands being given to the King in Taile, the Remainder over, if the K. have issue who alieneth, & 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 Commonwealth. But the Statute of 1. H. 5. cap. 5. that in Enditements, addition must be given to the party indicted, bindeth the king in that case because Enditements are especially named.

He may license things forbidden by the Statutes. As to coin monie which is made felony by the Statute, and was before lawful, for that is but malum prohibitum. But malum in se, as to leuie a nusance in the Highway, 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, (notwithstanding any Statute) else it is not good. As the Statute 23. H. 6. cap. 18. is, That the Kings Grant to be Sheriff of any County, longer than a year, shall be void, notwithstanding that the clause of Non obstante be in the Patent: yet with a clause of Non obstante such a Grant is good, and not without it. But neither without nor by that clause, he can dispence with a Statute before it be made. And therefore a license to carry Bell-metal out of the realm (notwithstanding any statute made or to be made) is not good, if a Statute be made after that to prohibit it. For he cannot dispence with an Act of Parliament before it be made.

Courts of Record which have an ordinary Jurisdiction, are either general, whose Jurisdiction 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 higher courts, as of the parents from whom they come.

The former are those that are holden in Terme time only: the whole year having four Termes, Michaelmas, and Hillarie Terme, Easter and Trinity Terme, and every Terme several days of Returnes. If either the return day, or first or last day of Terme fall upon the Lord's day, then the day following is taken instead of it.

Michaelmas Terme (beginning the 16. of October, and ending the 28. of November) 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 month after. Chrastino animarum, that is the next day after Chrastino Martini, Octab. Martini, Quindena Martin.

Hillary Terme beginning the 23. day of January, and ending the 12. of February hath four returns: Octabis Hillarij. Quindena Hillarij, Chrastino purificationis. Octabis purif.

Easter Terme beginning 17. days after Easter and ending the Monday next after Assention day, hath five returns. Quindena pasche, Tres paschae, Mense paschae, Quin{que} paschae, that is five weeks after Chrastino Assentionis.

Trinity Terme beeginneth 12. days after Whitsunday, & continuing, 19. days, hath five returns, Octab Trinitat. Quindena trinitat', Chrastino Johannes Baptistae Octab. Johannes Baptistae, quindena Johannes Baptista.

Statutes.

32. H. 8. cap. 21. Trinity Terme shall begin the Monday after Trinity Sunday for keeping of Essoynes, proffers, returns, &c. The full Terme shall begin the Friday after Corpus Christi day. And have four returns only, Crastino Trinitatis, Octabis Trinitat': quindena Trinitatis, Tres Trinitatis. The rest are cut off.

To these Courts belongeth the power of sending forth writs.

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

All Writs have a salutation, Rex to such a one salutem, And a conclusion expressing the name of one which is witness to the writ, called Teste (who in writs out of the Chauncerie is the king himself: in other writs the chief Justice of the place) the place as apud Westmonastarium, &c. and the time both day and year of the making of it, if it be returnable, the day of the return is also appointed in it.

The third writ (which is the Fluries) not served, is a contempt, whereupon an Attachment lieth. And therefore the third writ hath always this clause in it, Vel causam nobis significes. So may the second which is the Alias also have, if the Plaintiff will.

The officer of these higher Courts is the sherife to whom is committed the custody of the County.

For matters spiritual, as certifying excomengement and such like, the ordenary is their officer.

And to the Sheriff the writ must be directed, though it be for a thing done in a franchise, and he shall send to a Bailife of the franchise: who shall serve it as a servant to the Sheriff, and the Sheriff return it.

And though the Sheriff serve an execution 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 officer.

But in a place excepted out of every county (as the palace of Westm̄ is) it shall be directed to the Guardian of the palace, for he is immediate officer to the court, and in the nature of a Sheriff.

So certificates of excommengement &, such like must be made by the Ordinary, not by the Commissary, Archdeacon, or any other, though he have an immediate jurisdiction, unless he were specially admitted an officer to the court.

These general courts, are the Chancery and two benches: the Kings Bench, and Common-place.

Chancery which beside that it dealeth with matters of Conscience, and moderating the strictness of the common law by an absolute power, dealeth also in ordinary course of law in diverse cases especially, in suits concerning the King, as petitions. Scire facias to repeal his patents, &c. and so it is a court of law and of record, where the Judge is the Chancellor having the custody of the great Seal of England, under which pass all Writs out of the Chancery with Teste meipsos; and also the Kings grants, being therefore called letters patents, Though it be of things which he hath in his natural capacity, as by descent from his mother, &c. and are entered of record in this Court.

Statutes.

18. H. 6. cap. 1. The Kings letters patents must bear date the day of the delivery of the warrant to the Chancellor, and not before, otherwise they are void.

3. E. 6. cap. 4. Everyone that hath any interest in any land or office by or under authority of the kings letters patents (made after the fourth day of February 27. H. 8.) may make his title auowrie 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 Marie, Philip and Marie, & her Majesty that now is and all claiming under them.

Such grants are effectual to pass a freehold from the King without any livery of Seisin. And therefore his letters pattents being Tenant in Taile make no discontinuance. And being matters of record, which being no lyuerie, they take effect from the time of the date. Therefore the Kings Charter of pardon shall be pleaded without showing when it was delivered, because being a matter of record, it shall have relation to the date, and not to the livery. Otherwise it is of a deed.

In default of a Chancellor, the Lord-Keeper of the great Seal hath his authority.

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

In the Kings Bench and Common place, the Judges are one chief Justice, and three (or sometimes more) other Justices. The teste of their writs is, teste Iohanne Popham (the chief Justice, &c.)

The Kings Bench is that which dealeth properly with Pleas of the Crown, both hearing and determining them.

The Common place which dealeth properly with common Pleas, such are those termed which concern possessions.

Prerogatiue.

The King hath a proper Court of this kind, for all things touching his revenues, called the Exchequer.

The Judges whereof are called Barons, or housebands for the Kings Reuenue: being one chief Baron and three other. And this also hath a Court of Chancery before the chancellor & Barons of the Exchequer, called the Exchequer chamber.

The Escheator here is a special officer, 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 tarry in his office above a year.

These are the Courts whose jurisdiction extends throughout the Realm.

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

The sherifes turn is a Court of record for offenses which are common grievances. As a robbery, bloodshed, clipping & washing of silver and gold, night walking, the not repairing or making clean of a bridge or a ditch, fraies and assaults, &c. But not 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 & upwards (being within the precinct) oweth suite, & must be sworn to the Kings Allegeance. And this is called a suit real, being not due by reason of men's 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 outlawed, she is said to be waued and not outlawed, because she is never sworn to the Law.

Piers of the Realm are excepted: And persons of Churches, and other men of Religion, as appeareth before.

The offender here shall be amerced, and distrained for that amercement, throughout the whole precinct of the County.

Statutes.

Magn̄ Chart. 35. The sherife 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 as she turn of Michaelmas.

31. E. 3. cap 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 another manner, they shall loose their turn for the time.

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

1. E. 4. cap. 2. upon endictments and presentments taken before Sherifes, or their ministers, at their turns, or Lawdayes, they shall not attach, arrest, or imprison, nor leuie any fine, or amerciament of any person so indicted (or presented) but shall deliver the same indictments or presentments 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. Ric. 3. cap. 4. None shall be returned upon pannell of inquiry of the Sherifes turn, but men of good name and fame, having within the same freehold land to the yearly value of xx. s. or copy land to the yearly value of xxvj. s. viii. d. and every indictment otherwise taken shall be void.

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

Statutes.

Westm 1. cap. 10. Coroners shall be chosen in all Counties, of the wisest and sufficientest Knights.

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

28. E. 3. cap. 6. Al Coroners of the county shall be chosen in the full Counties, by the Commons of the same Counties, of the most connenient and most lawful people that shall be found in the same Counties to do the office. Saved always to the king, and other Lord's which owe to make such Coroners, their seigniories, and franchises.

Westm. 1. cap. 10. The sherifes shall have Conterrols with the Coroners, as well of their appeals, as of enquests of Attachments; and of other things which to that office doth belong.

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

Upon just cause of exception to the sherife, process out of the higher Courts shall be directed to the Coroners.

Prerogatiue.

The Steward and Marshall of the Kings house, have a Court, for all personel actions, and pleas of the Crown, arising there. As debt, covenant, trespass, &c. & 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, from henceforth they shall not hold plea of freehold. Also they may inquire of treason, murder, felony, manslaughter, 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 & 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 trespass was committed.

Any thing attempted here against, is void.

Pleas of felony (that cannot be determined, before the Steward, because the felons cannot be attached, or for other like cause) shall be referred to the common law.

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

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

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

33. H. 8. ca. 12. The Lord Steward of the Kings house alone, and (in his absence) the Treasurer and Comptroler of the K. house, with the Steward of the Marshalsy, or two of them (whereof the Steward of the Marshalsy to be one) may without commission hear and determine all treasons, misprisions of treasons, murders, manslaughters, & bloodshed, within the K. house, although the king be removed before. The enquiring and verdict must be by the kings household 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 Pipowders.

A Leet is a Court of Record, having the same jurisdiction within an hundred only, or some less preciuct, which the Sherifes turn hath in the County, the profit of, it being to a common person. Therefore it dealeth with offenses that are common grievances. And all (but Piers of the Real me) owe suite unto it, and must be sworn to the Kings Allegeanee. And the offender for an amercement shall be distrained through out the precinct of the Leete. And that as well out of the Land holden of the Lord of the Leete (where the offense was done) as within it. The Sherifes turn as an overseer of this Court, is to inquire whether the tythings be whole, or no: to present defaults that are not redressed in the Leete: And if (for misuser or other cause) the Leet be seised into the kings hands, all the people shall come to the sherifes turn. But otherwise the sheriefe in his turn hath no power to inquire of an offense done within the Leete.

A Court of pipowders is a Court of record, incident to Fairs and Markets: but by custom, a Court of pipowders may be held, out of Faire or Market: for all actions arising there, by reason of any contract, covenant, trespass, debt, &c. And the suite must at the same time be commenced.

Statutes.

17. E. 4. cap. 2. made perpetual, 1. R. 3. cap. 6. No plea shall be holden in Court of Pipowders, unless the plaintiff or his Attorney swear, that the matter of declaration was done in time of the same Faire, & 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 pattents) but not by writ, may erect other Courts at his pleasure.

Such were Justices of Eyre, and such Courts of record in Corporations, and other places, by special Charter.

The Kings Council 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. cap. 1. The Chancellor, Treasurer, and privy seal, or two of them (calling unto them a Lord Temporal, and another spiritual of the Kings Council, and the two chief Judges) may examine ryots, maintenances, &c.

These are the Courts of record. A court Baron is the Court of a common person. And is for personal accounts under the value of xl. s. For a Trespass lieth not in a Court baron of damages above xl s. And a Supersedeas lieth to the Sheriff, upon diverse plaints in the County Court, everyone under xl. s. when all are for one entire debt of xl. s. Or upon an Action of Covenant brought there to the damage of above xl. s.

These cannot be kept oftener then ever is three weeks. But so it be not oftener then from three weeks to three weeks, it may be holden as often as the Lord will. And therefore to hold of one by doing suite 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 holden from 3. weeks to 3. weeks: yet suite of Court may be once, twice, or thrice a year, as it is first reserved.

The process here is by precept to the bailife, 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 all is but matter enfait.

The suitors are the Judges, both in an hundred Court, County Court, or Court Baron, and the bailife and sherife are but ministers.

A Court Baron is the Lord's, or the County Court. The Lord's is either of a particular manner, or of a whole hundred. For a Court Baron is incident to every manner, and to every 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, which is incident to the Sheriff. For the Sheriff hath two Courts by the common law, for government of the shire: his County Court, (wherein one shall have remedy against another for any matter between them) and the sherifes turn. But the pleas holden before him in the County Court are not of Record, though it be by writ of Justices.

Statutes.

Westm̄ 1. cap. 25. No minister of the King may maintain another in any action in the Kings Court to have part of the thing, or other profit by covenant upon pain of punishment at the Kings will.

Westm. 2. cap. 49. None of the Kings officers shall take, or purchase, or bargain for land, tenement, or aduowson whilst the thing is in plea, upon pain to be punished at the kings pleasure, as well the purchaser as the other.

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

32 H. 8. cap. 9. None shall, buy, sell, or get, or take promise, or grant to have, any pretensed rights or titles to lands, &c. except the seller, or 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 possession by taking the yearly profits, may buy, &c. another's pretensed right.

Gloucest▪ cap. 8. Atturnies may be made in all pleas, where appeals lie not.

Met. cap. 10. In suits; at a County, tything, hundred, wapentake, or Court of the Lord.

Westm. 2. cap. 10. A general Atturny may be made, in all Counties where Justices do journey.

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

The suite 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 suite, and original process.

The first matter of the suite must always be brought in that County where the cause of suite groweth. As actions of debt upon an escape, may be brought in the County where the arrest or escape was. But not in any other County: A trespass of battery, goods carried away, or writings broken, may be brought in any County; for they are not local. Otherwise it is of trees, or grass cut down, they must be brought in their proper County, if it be by bill, the County is set at the margent.

Statutes.

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

The first matter of the suite 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 inquiry.

In all of the first kind, the plaintiff must find surety by some that will be pledges to prosecute the suite. And so is the form of every original Si (the Plaintiff) fecerit it securam de clamore suo prosequendo, The entry is, plegij de prosequendo Johannes D •• . Rich. Roo. And these may be either to the officer, or to the Court where the suite is. But a poor man instead of sureties shall give his faith to prosecute it: whereupon the form for him is, Et nisi fecerit & praedict, (the plaintiff) fecerit te securum de clamore suo prosequendo per fidem suam quia panper est.

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

Original which appoint the first process, if the plaintiff find pledges returneable in the Kings Bench, or Common place.

This must be true Latin, for upon habeas ibi hos breue, or vxori where it should be vxor, and such like, the writ shall abate, and beside formal, As (e) the General to be put in demand, and in plaint before the special. As land is general to pree, pasture, wood, ioncarie, marsh, &c. Wood is the general of all trees growing, and therefore shall be put in demand before Alders and Willows which are but species of it. The entier shall be demanded before the moyetie or part or parts. The more worthy thing shall be demanded before the less worthy, as a messuage before land: for land that hath building upon it, is more worthy then land without building. A Castle, before a messuage, or a manner (and yet it may be parcel of a manner.) But the reason is because a castle is more worthy. As being a place of force and defense against the enemy in time of war, and against Rebels in time of rebellion, a place in time of peace fit for the correction and imprisonment of great Malefactors, and a magnifical habitation for Noblemen▪ So in a repleuin, 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 baptism, and surname, 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. Iohanni Duci Lancast. is good, but not Iohanni Rectori de D. without expressing his surname. But when an officer is to sue by reason of his office, as a prebendary person, executor gardein by Knight service, &c there he must express the name of his office: or when one bringeth an appeal of murder, • s brother and heir, &c.

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

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

Statutes.

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

The kings servants in his Court or other by special grace of the Chancellor may here be admitted to find pledges in the Chancery. And then the form is, Quia praed. (the plaintiff) fecit nos secures de clamore suo prosequendo pro C. de come. L. et D. de come. S. summoneas, &c.

Prerogatiue.

Here in place of action against the King, petition must be made unto him in the Chancery, or in Parliament, for no action did ever lie against the K. at the Common Law, but the party is driven to his petition, and if the Eschetor seise goods without cause, or seise the goods of one outlawed, which outlawry is after reversed, and account for them in the Exchequer; the party must sue by petition for them. And that (in the case of hereditaments) though the King have granted the same away. For upon an office finding I. S. (who was attainted of felony or treason by matter of record before) to be seised of certain land, if the King seise and grant i • over, yet a stranger that hath right to enter or bring his action may do neither against the patentee, but must to the K. by petition. Whereupon process shall go out against the Grantee to maintain his title. As the king grants over his wardship, or any other certain estate in the land: the Scire facias for him that sueth the petition, must be against the patentee, not against the heir, in whose right the king is seised, for he is not to plead with the Heir, but with the King or him that hath his interest. And in a petition to revoke letters pattents made to two &c. a Scire facias upon it: the death of one of the patentees abateth not the petition, 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.

But whilst personal things seised 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 disturb him to take the profits: As where it is found that one outlawed in a personal account, was seised of certain land; and in this case he shall not be driven to a petition: otherwise it is in case of a freehold, or inheritance.

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

Statutes.

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

In a mort dauncestor writ of Niefe and of entry, from the last return of king John out of Ireland.

In an Assise of Nouell disseisin, from Henry the thirds first passage into Gascoygne.

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

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

In a mortdancestor cosinage, ayell, entry, and Writ of Niefe, from Henry the thirds Coronation.

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

In a mortdancestor, or in another possessory action, upon the possession of his Auncestor or Predecessor, shall be within l. years.

A Writ of the possession of the plaintiff himself, shall be within xxx. years.

An Auowrie or Cognisance, for rent, suit or services of the seisin of his Ancestor, or of his own, shall be within xl. years.

Formedon in remainder, reversion, Scire facias, upon a fine, shall be within l. years after the title accrue. If a man prescribe in land, rent, or such like, of the possession of his ancestor, or predecessor, he shall allege seisin in them within lx. years next before the time of the prescription, title, or claim.

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

These kind of real actions, viz. where the freehold shall be recovered, lie only against the tenant of the Freehold. Therefore a release of all actions reals, is no plea, unless he were Tenant of the Freehold at the time of the release, for else he had no cause of any such action against him. Neither is any such action maintenable against lessee for years, for he hath not the Freehold. Nor the disseisee cannot have a praecipe quod reddat against the disseisor, which is parnor of the profits for years only, notwithstanding the Statute, because by the Common Law, no action lieth against him. And for this cause also, non tenure of the whole, or though it be but of parcel of the thing demanded. Ioynttenancie with one not named in the Writ. Entiertenancie of the whole, or several tenancie of parcel, when the Writ is brought against two or more, are good pleas in abatement of the Writ.

Statutes.

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

37 E. 3. cap 17. No writ shall be abated by knowledgement of villenage, if the demaundant or plaintiff will aver that he that alleged the exception was free, day of the writ purchased. With the freholder, may be joined in action, any having title to enter: as the morgagor with the morgagee, the Lord with his villain, but not the disseisee with his disseisor.

Statutes.

Westm̄ 2. cap. 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 husband 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 estate tail only, a formedon lieth in this case for the heir.

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

A fine assensu capituli is for the Successor of a Bishop, Abbot, Prior, Dean, Prebendarie, or Master of any Hospital after the discontinuance of the Predecessor, viz. when they alien the lands they have in the right of their Church, house, Abbey, or Priorie, without the consent of their convent, Chapter, or Confrers, &c.

Upon an ouster, or either upon an intrusion or a disseisin.

That upon an intrusion is called a writ of intrusion, and is for him in the reversion 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 freehold, after the death of tenant for life in Dower, or by courtesy.

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 remainder.

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

Writs that show the demandants title, are mere possessorie, or in the right.

Mere possessorie are those which are brought by the next heir upon an abatement after the death of any auncester, other then his father, mother, brother, sister, uncle, Aunt, Nephew, Neice, for upon an abatement after the death of any such auncestor, an Assise of mortdauncestor lieth as shall appear afterwards: seised in demesne as of a fee simple the day of his death, though he were disseised the very same day, and so died not seised at all. Of this nature are,

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

A writ of Besayel after his great grandfather or grandmother.

I writ of Cosinage after the death of his great great grandfather or grandmother, or any other collateral Cosin, as the great great grandfathers brother.

Statutes.

Westm̄ 2 cap. 20. In a Writ of Cosinage, Ayell, and Besayell, the point shall be inquired whether the demaundant be next heir as well as in a mortdauncester.

In the right, is that which is to disprove 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 showeth how the demaundants right is grown. And is a formdon or a writ of Eschete and Dower, vnde nihil habet.

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

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

A Formedon in remaynder is for him in the remaynder for life, or in fee upon a Lease for life expired. For after an estate tail expired, it lay not at the Common Law: because it was a fee simple, whereupon a remainder could not depend.

A formdon in reuerter is for the donor alter 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. Contrarie it is if he had issue and then had aliened, and died without issue.

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

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

Statutes.

Westm 1. cap. 48. A writ of dower vnde 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.

A writ of dower lieth against gardein by knight service, though he be not tenant of the freehold.

A praecipe in capite is a praecipe quod reddat, for the mere right: and therefore lieth only for Tenant in fee simple of lands holden in Chief.

Statutes.

Washm̄ 2. cap. 4. In place of a writ of right, a Quod ei deforceat is given to Tenants for life or in tail upon loosing by default.

Statutes.

Marleb. cap. 7 In a writ De communi custodia, if the deforcer come not at the grand distress, the same Writ shall be reitterated, as oft as well it may be within half a year following, and every time the Writ read, and Proclamation made in the County Court, if he come not to answer, nor the Sheriff find him within half a year, he shall lose the custody. Sauing his action another time, if he have right.

Westm. 2. cap. 35. In a Writ of ward of land, or heir, or both, either of the parties dying before the plea determined, a resomons 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. Sauing the right of the defendant, if afterwards he will claim it. So shall it be done in a writ of eiectment of gard.

A writ of Right Sur disclaimer is for the Lord to prove the Lands to be holden of him, when in an action where the services should be recovered, As in an auowrie made upon the Tenant for them: for there he shall recover the services inclusiue, inasmuch as he is to have a return in an Assise or praecipe quod reddat of rent (for there the services are expressly demanded) but not in a per quae seruitia (for there no services but an Atturnement only is demanded) nor in a Justification, in a repleuin, or an auowrie in an action of Trespass (for there the defendant shall never have a return, nor recover his seruises expressly nor includedly, the Tenant in Court of record, viz. in the Common place, but not in Court Baron or County Court. For there if the Lord make auowrie 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 disclaimer, he can prove the land to be holden of him, he shall recover the land it self forever: because the disclaimer is of record. Therefore by such a disclaimer, he is barred of all possessorie actions for the services, as an Assise, Cessauit, rauishment of ward, and such like: but not of a Writ of Eschete, Right of ward, right of customs, and services, &c. And though the Lord's distress & auowrie were lawful, yet the Tenant so disclaiming, shall recover damages of him, for the disclaimer giveth the Lord a better advantage, viz. the Land it self.

Statutes.

Westm. 2. cap. 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. cap. 4. • Explanat. cap. 4. when land is given in feefarme, rendering or doing 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, nor render, or do that which is contained in the writing, the other shall recover the land by a Cessauit. But the donee coming before Judgment, if he render the arrearages and damages, and find sufficient to do from thenceforth, that which is contained in the writing, shall tetaine his land.

Westm̄ 2. cap. 21. If a man detain from any Lord his service due by two years, the Lord shall recover the land by a Cessauit. This lieth also for the heir of the Lord against his Tenant, his heirs, or those to whom he alieneth the land.

Westm̄. 2. cap. 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.

Statutes.

Marleb. ca. 9. The Processe either where the Lord distreineth 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 facias, and the grand distress. At which day not appearing, the distresses delivered shall so remain till recovery in the Kings Courts, til 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, against him, the Plaintiff shall recover damages.

This of damages 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.

Statutes.

25 E. 3. cap. 3. Stat. 3. Upon the Kings collation or presentment to a benefice, his title shall be well examined, and being found before Judgment untrue, or unjust, the collation or presentment shall be repealed. And the patron or possessor which showeth the false title, shall have thereupon Writs out of the Chancery, as many as are needful.

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

Westm̄ 2. cap. 5. If Coparceners make partition 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 recover his presentation with damagess.

An auowson (after the death of one that hath presented) being assigned in dower, or to Tenant by Curtesie, and they present, the heir if he be disturbed after their death shall have a quare impedit, or darrein presentment at his pleasure. So of an auowson demised for life, years, or in tail, when 6. months pass hanging a quare impedit or darrein presentment, so as the Bishop presenteth by lapps, the patron shall recover damages to two years value of the Church. Otherwise damages to half a years value: The disturber not being able to render damages, 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, being disturbed by a stranger, so as he cannot use his Common.

Statutes.

Westm. 2. cap. 9. The Tenant distrained by the chief Lord may have a writ in the County where he is distrained against the mesne, who having land in that County, and not appearing till the grand distress, day shall be given in the grand distress, so as two Counties 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 distreine the Tenant of the demesne if he offer the service due. And exacting of him more then the mesne ought to do, that Tenant shall have the remedy that the mesne might have.

Upon a return that the mesne had nothing 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 testified 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 Count and acknowledging, or being adjudged to acquit his Tenant, and not doing it, the Tenant shall have a Judicial Writ of acquittance. Whereupon if the mesne come in, and the Tenant can auer that he hath not acquitted him, he shall be satisfied of his damages, 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 proceed to Judgment as before.

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

A Warrantia Charta lieth for him that hath lands or Tenements warranted unto him, either by feoffment, release, or confirmation with clause of warranty, where his hereditaments are liable from the time of the action brought. Therefore it is policy for one to bring his Warrantia charta before he be sued. For upon vouching when he is once sued, he recovereth in value but such lands as the vouchee had at the time of the voucher.

And upon these writs of Convent real, mesnes warranty of Charters, as also upon a Writ of customs and service, s a fine may be levied.

A fine is the acknowledging of an hereditament in the Kings 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 ackowledged to be his, as that which he hath of the gift of the Conisor, it is called a Fine sur conisance de droit come ceo quel ad de son done. The form of a fine is, Haec est finalis concordia facta in curia dn'i Regis, &c. vnde plac' conuentionis pendet in ead' curia sc. qd. prad' I. S. recognouit tenementa praed esse ius 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 entered of record. And before the Statute of Westm. De his quae concordata sunt (which giveth a scire fac.) if the fine were not executed, the party should have a writ De fine fracto, and recover damages only, which proveth that a fine is but a covenant of record.

Where one of thē 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 &c. it is no good replication, that the parties were seised &c. for if one of them were seised it is sufficient. Which form of pleading (viz that one of the parties was seised) proveth that if he have left an estate for years the fine is void. And a fine of the land it self will pass away a reversion depending upon an estate estate for life. And this is as it were a feoffment of record. So as a freehold passeth thereby without any livery of seisin. That where of the fine is levied, or anything contained in it, as a rent Common, &c. out of the land, an estate for years, or other estate in the land, &c. may be granted back again to the Conisor by the same fine. And this is called a fine sur grant & render. The form whereof is: Et pro hac recognitione, &c. the conisee concessit, to the conisor, praed' tenem' cum pertiū & illa ei 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. leuieth a fine to B. who rendereth 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 leuatis. Exception against a fine, that the plaintifes or defendants, or their ancestors, were always seised of the lands contained in the fine shall not from henceforh be admitted in the parties to the fine or their heirs.

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

5. H. 4. cap. 14. All Writs of Covenant and other, whereupon sines 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 enrolled in a roll to be of record forever Out of the which execution shall be had, if the notes or fines shall be imbezilled.

23. Eliz. cap. 3. Every Writ of Covenant, or other writ whereupon any fine is levied, the return thereof, the Dedimus Potestatem and return thereof, the concord, note, and foot of the fine, the proclamations and the Queens silver: Also every writ of Entrie in the Post or other writ, whereupon any common recovery is suffered, the Writs of sommons ad warrantizandum, and the returns of all these writs, and every Warrant of Attorny may at any man's request be enrolled. Which enrolment shall be of as great force to all purposes in Law as the things themselves if they were extant.

No fine, proclamation, or common recovery shall be reversed by writ of Error, by reason of false Latin, rasure, enterlyning, misentring of the Warant of Attorny, or of any proclamation misentring, or non return of the Sheriff, or by reason of any other defect of form in words, and not in matter of substance.

Fines executed bind all persons if claim be not made within a year, therefore it is called a fine, Quia finis finem sitibus imponaebat. And in a fine upon a render, if the Conisee sue not execution within the year but after the year, by a scire facias, no strainger need to lay to his claim.

Statutes.

34. Ed. 3. cap. 18. The plea of non claim, of fines from henceforth to beleuied, shall not be any bar.

34. H. 7. cap. 24. Every fine after the ingrossing shall be proclaimed in the Court, the same Terme and the three next, four several days in every Terme, all pleas ceasing the whilst. Which proclamations so made, the fine shall conclude all priuies and strangers, except women covert, persons within xxj. years of age, in prison, out of the Realm, or if non save memory (being no parties to the fine.) So they or their heirs take their action or lawful entry within five years after those imperfections removed. Sauing 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, remain or come to them after the proclamations, by force of any matter before the fine. So they take their right according to the law within 5. 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.

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

31. H. 8. cap. 36. All fines levied by any person of xxj. years of age of lands entailed before the same fine, to himself or his ancestors in possession, reversion, remainder or use, shall immediately after proclamation made, be a sufficient bar against him and his heirs, claiming only by such entaile, and against all other claiming only to his use, or the use of any heir of his body.

1. Marl. cap. 7. All fines whereupon proclamations be not, or shall not be duly made (by reason of the adiournement of any Terme by Writ) shall be as good as if any Terme had been holden from the beginning to the end, and proclamations therein made according to the statute.

• 1. Eliz cap. 2. Proclamations of fines shall be only four times, viz. once in the Terme wherein the fine is engrossed, and once every of the three Termes next after.

A femecouert joining with her husband in a fine it bindeth her forever. Therefore here the Justices must examine her to see that she do it willingly. For if she say upon her examination, that the husband did imprison her to leuie the fine, this fine is not to be received. A grant by fine of a seigniorie, rent charge, rent seck, remaynder, or reversion, is presently good. Save for bringing actions that run in privity between the Tenant and him. As an action of Waste or Cosimili casu, when the reuertion of Tenant for life is granted by fine, and after Tenant for life a lieneth in fee, a Writ of Eschete or Ward when the Tenants services are granted by fine, and after the Tenant dieth without heir, or his heir within age. But in these cases he may enter for a forfeiture or eschete, and seise the Ward: and shall also be received upon default of Tenant for life.

Statutes.

Magn̄ chart. cap. 12. Assizes of mortdauncester and of novel disseisin shall not be taken but in their proper County by the Justice of Assise, and if they cannot 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 determined.

Westm̄ 2. cap 18. 13. E. 1. Stat. de Mercator 27. E. 3. cap. 9. Tenant by elegit by Satute merchant, and by statute staple, shall have an assise or redisseisin.

Westm̄ 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 remnant that he holds of the heirs for life.

Westm. 2. cap. 25. A man shall have an assise for estouers of wood, profit to be taken in wood of nuts, accornes, and other fruits of Corodies, delivery of corn, and other vittailes 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. Custodidies of woods, parks, forests, Chases, warrens, gates, and other Bailywicks, and offices in fee. And in all these cases the writ shall be de libero tenemento. Likewise an assise is given for common of Turn land, fishing, and such like. Commons which a man hath appendant to a freehold or without a freehold by special deed, at the least for term of his life.

Westm. 1. cap. 24. An Assise given against Eschetor, Sheriff, or other Baylife of the King, that seizeth any lands by color of his office, without special warrant or commandment, or certain authority that belongeth to his office so to do, and double damages to be recovered.

Westm̄. 2. cap. 25. When Tenant for years, or in ward alieneth in fee, the remedy shall be by an assise, as well against the feoffor 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 Entrie.

7. Ric. 2. cap. 10. An assise of novel disseisin of rent out of Tenements in diverse Counties, shall be in the confine of the same Counties.

Westm 2. cap. 25. In an assise, if one named a disseisor do personally allege an exception whereby the taking 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 Rols or records to warranty, and at the day given him, he fail of that he vouched, he shall be adjudged a disseisor without taking an assise, render double damages, and have a years imprisonment. If such exception be alleged by the Baylife 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 Justices, such an exception shall have a venire facias for the record, which if the Justices 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 again his seisin and damages, with his double damages sustained since the first judgment and imprisonment of that party that recovered. In like manner if the defendant, against whom an assise passed in his absence, show any deed, release, whereupon the Jury were not, nor could not be examined, because there was no mention of them in the pleading, the Justices 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 being proved true by their verdict, or by the enrolment of them, like punishment shall be as before.

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

Merton. cap 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, taking 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 lawful men to make inquiry. This must not be without special commandment of the king.

Westm̄. 2. cap. 26. A writ of redisseisin shall lie for them that have recovered by default, redicion, or otherwise, without recognition of the assizes and Iuries.

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

Marleb. 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 damages, and not be repleuiable by the common writ.

Westm̄ 2. cap. 8. In fine, writs of redisseisin must be enrolled in the Chancetie, and a transcripsit thereof shall be sent into the Excheker in the end of the year. An assise of nusance is for him whose freehold is spoiled by any nusance, for if he have but a lease for years in the land, he shall not have an assise of nusance, but an action upon his Case.

Statutes.

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

6. Ric. 2. cap. 3. The plaintiff, if he will, may have a writ of nusance in the nature of an assise, determinable before the Justices, of one bench or other, or before the Justices of assise.

An assise of his ancestors possession only called an assise of mortdancestor, is for the next heir upon an abatement after the death at his father, mother, brother, sister, uncle, aunt, nephew, or neice: for of other ancestors, a writ of Ayell, Besayell, or Cosinage, and not a mortdancestor lieth, who was seised in demesne as of a see simple the day of his death, though he were disseised the very same day, and so died not seised at all. But upon lands given 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 mortdancestor, (after the death of his father ouerliuing 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 endescender, which was nothing else but a Writ formed upon his case. So if the auncestor were seised in tail, the remainder to his right heirs, a mortdauncestor lieth not, for there, of the demesne he is seised in tail, not in fee.

Statutes.

Magna charta, cap. 12. vide supra.

Marleb. cap. 16. A mortdancestor given 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 mortdauncestor against her.

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

Gloucest. cap. 3. The heir shall have an assise of mortdauncestor, if Tenant by courtesy alien and leave no assets.

An assise which may be either of his own or his ancestors possession, called an assise of darrein presentment is upon a disturbance when himself or his ancestor did last present: and therefore lieth for 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 darrein presentment shall be always taken before the Justices of the Common place.

Marleb. cap. 12. and Westm̄ 2. cap. 2. A Iuris vtrum is such a real plea founded upon the right for a Parson or Vickar upon his predecessors altenation.

Statutes.

14. E. 3. cap. 16. A Iuris vtrum, and other Writs according to their case, given to Parsons, Vickars, and Wardeins of Chapels, Prouosts Wardens and Priests of perpetual Chauntries for lands in frankalmoigne, as well as to Parsons of Churches, or Prebends.

Statutes.

31. H. 8. cap. 1. Ioyntenants, or Tenans in Common of an estate of inheritance, may be compelled to make partition, and afterwards shall have aide to deraigne the warranty paramount, and to recover for the rate as coperceners (after partition) should.

32. H. 8. cap. 32. Ioyntenants, or Tenants 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 Executours and Assigns.

Nuper obijt lieth against one privy in blood, that entereth after the death of the auncestor that died seised in demesne. And therefore being but to try the privity of blood, view, nor voucher, lieth not, neither is non tenure any plea.

A Quo iure lieth for the tenant of the land when one challengeth common, there to try whether in right he ought to have any or no.

Statutes.

9. E. 3. cap. 3. Stat. 1. In a writ of debt brought against diverse executors, they shall have but one essoine before apparance, and one after apparance. He ot 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 personell actions growing in respect of a possession in Common, Tenants in Common are in all respects as Iointenants, for they must join in an action of Trespass, for a trespass done upon their ground: in an action of account, against their Bailife of a wood, and if one of them die, the suruiuor shall have an action of the whole. So if Tenant for life the reuertion to two sisters commit waste, one sister dieth having issue, and the Tenant commit wast again, the issue and her Aunt shall join in an action of wast, and the Aunt sole recover treble damages for the wast done in her sisters time.

In personell praecipes, damages only shall be recovered where the thing▪ cannot be had: for damages shall not be recovered in a Writ of Detinue, if the thing it self may be delivered, damages I say to the value of the thing demanded: but damages for the detaining shall.

Personell praecipe quod reddats are debt and detinue.

Debt, when anything is due upon a contract.

Which if it be money due from one to another in their own right, is in the Debet and Detinet, otherwise in the detinet only. As in debt, for the rent of Wheat, and Hens reserved upon a lease for years, or of any Chattell, 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: or upon a former recovery of debt or damages against executors, or for arrearages found in an action of account brought by them, for all is in the right of their Testator. But against an heir upon an obligation, &c. of his ancestor, it lieth in the debet and detinet, 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, and though he be behind himself only, and against husband and wife upon a recovery of debt and damages against the wife whilst she was sole.

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. Ric. 2. cap. 12. No Wardein of the Fleet shall suffer any prisoner in execution to go out of prison by mainprise, baile, baston, without making gree to the party, unless by Writ, or other commandment 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 color 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 Warrants, taken in any other form, it shall be void.

32. H. 8. cap. 37. The Executors or Administrators of him that hath any rent or fee farm in fee in tail, or for life, shall have an action of debt for the arrearages, in the Testators life time against the tenants that should then have paid it. Or may distreine (and make auowrie upon his matter) in the lands so long as they remain in the possession of the said Tenant, or of any claiming only from him.

A husband seised of any such estate • any rent or fee farm in his wives right, shall (after her death) himself, his Executors, or administrators, have the same remedy for arrearages due in her life.

So of him his Executors and administrators, that hath a rent or fee farm during another's life, & cesti qui vi, die, the same being vnpayed.

Prerogatiue.

When any of the Kings goods come into a subjects hands, whether by matter of record or enfait, so as he is accountant for them, his land all times after is chargeable for the same, and subject to the Kings seisure, into whose hands soever it come, whether by descent, purchase, or otherwise.

Statutes.

34. H. 8. cap 2. The land of the heirs of high Collectors of any Taske, Subsedie, or lone, and of the receiuors of Courts, shall be chargeable therewith, as well that the heir hath by descent in fee tail, as in fee simple. And also that that is given him by the collector or receiuor couenously, and thereupon the heir may have an action of debt against the Executors and administrators of his auncestor, wherein no essoine, protection, or wager of law is allowable. And have execution of the goods of the auncestor, • eing in their hands at the time of the acti • n brought.

13. Eliz. cap 4. The lands, profits, and • ereditaments of every accountant, or of • im that receiveth money for the Queen, • r her Successors, to be employed to the use • f the Queen, shall be extended (in the • ature of a Statute Staple) for the payment of the arrearages. Or the Queen if he do not satisfy within six months after the arrerage found, may sell his land, and the party may have the surplusage to be delivered unto him, by him that received the money upon the sale, without further warrant: this sale to be of any land, whereof it is found by inquisition, that the accountant taketh the profits: 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 lemaine. If any such buy land with the Queens Treasure, since the beginning of her reign, and pay not the arrearages as before, the Queen shall seise & retain the land according to the rate that the party had it. This sale extendeth not to to those officers that have used to disburse the arrearages about their charge, or offices which continue, except the Queen command present payment to be made, and then they shall have six months as before.

This Statute extendeth not to the accomtants, whose yearly rent, or whole receip • from the beginning exceedeth not C C C • nor to Sherifes, Eschetors, Baylifes of liberties. Also the surerties shall be ratable according to their habilities charged for the surplusage only which remains not satisfied by such sale of the lands of such officers.

39 Eliz. cap. 7. The former Statute of 13. of Eliz. shall extend to sales to be made after the death of the Accomptant or 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 act mentioned) as upon their accounts 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 allowed) the Queen may by her Letters Patents sell so much as shall suffice to satisfy 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 redeliuered 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 bar the party and his heirs, and all claiming under him, after he • hall be debtor or person accountable, and • ll whom he might have barred by any re • ouerie, and all whose lands are to be sold • y the intent of 13. Eliz. And shall be good • gainst the Queen and her Successors, and • ll claiming under them for any charge or • combrance to the Queen or her Succes • ors by the party.

Provided, it shall not avoid any lease by • he Queen in other sort then it should at • he Common Law, if the Queen were sa • isfied.

This act and 13. Eliz. shall extend to vn • er collectors of Tenthes and Subsedies of • he Clergy, shall not impeach any assu • ance made before this Parliament, bona fide nor any lease of xxj. years, or three lives whereupon so much yearly rent shall be reserved yearly payable, as hath been within xxj. years before, nor customary estates made according to the custom.

And of this nature is a writ of annuity, which lieth for him that hath an annuity in fee for life, 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, for any other thing as well as for money, not in the detinet contrary to an action of debt Detinue when anything is withholden, which is called De catalis reddendis: if it be for writings, it is called De chartis reddendis.

Statutes.

Marleb. cap. 23. Attachment given in an action of accompt against Baylifes that withdraw themselves, and have no lands nor tenements to be distrained by.

Westm. 2. cap. 11. He to whom the accompt is to be made, may assign Auditors to take it, who may immediately commit to the next jail the accountant (being found in arrearages) till he fully satisfy • whereupon the accountant finding himself grieved, may bring the matter by a Scire facias before the Barons of the Exchequer.

Prerogatiue.

The King may have it against executors. And so can no other man.

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

Statutes.

Marleb. cap. 38. A writ of Trespass is given to the Successors (in religious houses) for goods taken away from the Predecessor, 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 intrudors in time of vacation, wherein damages are also given.

Marleb. cap. 4. If the Lord distreine for his services when none are due, yet he shall not be punished by fine and ransom, but only be amerced.

Weshm̄ 1. cap. 20. Trespassors in Parkes and ponds attainted at the suite of the party, besides making large amends according to the Trespass and fine, at the Kings 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 suite.

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

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

15. Ric. 2. cap. 2. At all times that such forcible 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 forciblie after such entry made, they shall be taken and put into the next jail, there to abide, convict by the Record of the same Justice, till they have made fine and ransom to the king.

8 H 6 cap 9 The like for them that make such forcible entry into lands or other possessions, or them hold forciblie.

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 entered 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 damages against the disseisor, or any feoffee coming in by fraud.

31. Eliz. cap. 1 • . 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 14. years of age shall be imprisoned, besides loss of the value of the marriage.

Westm. 2. ca. 35. One that hath no right, taking away the Ward, shall be imprisoned two years, rhough he restore the child not married, or satisfy for his marriage. Not restoring him unmarried, or not be able to satisfy 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 another, is there set 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 determined, &c. a resommons shall be against his executours or heirs (if the executours have no assets) to satisfy the value of the marriage.

Special actions of Trespas are these that follow.

De parco fracto for taking a distress of beasts and other things distrained for damage fesant, or for rent & services behind, 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 distrained, not for him whose the close was, where one distreineth and putteth the beasts by license into his friends Close, for it is not the pownd of the owner of the soil, but of him that did distreine, and the other shall have an action of Trespass, Quare clausum fregit.

Rescous for taking such a distress away before it be impounded. And here the party must needs have possession of the beasts, or things so recussed; for if he be disturbed before he do attach or distreine them, a writ of rescous lieth not, but an action upon the case.

Eiectione firm 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 eiecit infra terminum before.

Statutes.

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

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

2. E. 6. cap. 24. Enditement 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 indictment 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 saved, as if the acquitall had not been.

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

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, admeasurement shall be made in his default.

Westm̄ 2. cap. 8. When the same party after admeasurement another time surchargeth, a writ to inquire 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 answered to the King.

3 A Natiuo habendo for the Lord that hath an inheritance in any villain, but not an estate for life or years, for this writ is in his nature a writ of right to recover the inheritance of his villain When his villain departeth away from him. And here if the defendant plead that he is frank, the Sheriff cannot proceed.

4 Rationabilibus diuisis for that Lord whose land or waste hath by little and little been encroched upon within time of memory until now, by a Lord whose seigniorie adjoineth in another ville, against the Lord so encroching. But if the encrochment be at once, whether now or before time, there an assise of novel disseisin lieth, and not this writ.

5 A homine replegiando, for one imprisoned, or in prison detained where he should not. As being baileable, or claimed as a villain, or in ward, where in deed he is frank out of ward.

6 A repleuin for goods or chattels distrained, which according to the nature of the plea ministered by the parties, groweth to be either a real or personell plea, as upon property claimed then is it personell, if the defendant avow the taking, for services or rent behind, &c. then it becometh real, &c. and as strong as a praecipe quod reddat, inasmuch as he is to have a return. And therefore he shall in that case have aide before any plea pleaded, as in a praecipe quod reddat. And this may be both by Writ and plaint in any Court baron, as well as in the County Court. And being by plaint, though in the County Court, it shall not proceed if anything touching the freehold come in question, as if the defendant auowing for damage fesaunt, the Plaintiff justifieth by reason of Common of pasture.

Upon the pluries not served by the Sherifr, his power is determined, and the parties shall plead in Bank.

Statutes.

Marleb. cap. 21. The sherife may repleuin beasts not only without but within a liberty also, if the baylife of the liberty will not.

Westm 2. cap. 2. The sherife or baylife shall take pledges of the plaintiff not only de prosequēdo before they make deliverance of the beasts, but of returning of the beasts if a return be adjudged, he that taketh pledge otherwise shall answer the price of the beasts. Upon a return awarded to the defendant, the writ De returno habendo shall have this clause, (that the sherife shall not deliver them without writ, wherein mention shall be made of the judgment.) And thereupon the plaintiff (if he will) may have a iudicial writ to the sherife to deliver him the beasts.

Upon a return awarded, after which if a return another time be awarded, there shall be no more repleuins. And if upon his default the second time, or otherwise the defendant be adjudged to have a new return, the distress shall remain yereplegiable.

1. & 2. Ph. & Ma. cap. 12. Every Sheriff of a Shire (being no City) shall at his first County day, or within two months after receipt of his pattent, proclaim in the Shire town four deputies at the least, dwelling not past twelve mile one from another, which in his name shall make repleuins as the sherife might do himself.

7 Many of the actions that went before, both for Real things to be done as, Consuetudinibus & seruitijs: secta ad molendinum. Quod permittat: mesne: Dower, vnde nibil habet: and also personal actions, a • Annuitie, debt, detinue, accompt, coue •• , trespass, to what sum soever, may as well be brought in the County by Iusticies, as to be returnable in the Common place.

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 lie properly a writ of Association, and Si non omnes.

Association is a writ for other to be associate into their company, as fellow Justices together with them, and may be directed to the Justices themselves to admit them, or to the parties that shall be so associate to signify their association. That to the party is patent. The 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 associate as to the other Justices. Patent to the party, close to the Justices.

Ad quod damnum to inquire what hurt it may be to the King, or country, or any other for the King to grant such or such a thing, as a license to alien in mortmaine, or to alien lands holden of the King in chief: or to grant liberties to any City or such like.

Perambulacione facienda to inquire of the bounds of two Seigniories or Towns, where an encrochment by little and little is supposed to have been made. And this must be by the mutual assent of both the Lord's. But if such encrochment were at once, whether now or heretofore an assise of novel disseisin lieth, and not this writ.

Prerogatiue.

THe King hath a special me 〈…〉 suite for trying of the right •• fr •• chise usurped upon him, called • Quo warranto: and i • to be brought before the Justices of Eyer. Therefore here the allowance of a franchise before them, bindeth the King Otherwise 〈…〉 upon a suite in the common place.

Statutes.

18. E 1. A Statute of, Quo Warranto. 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 public 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 impleaded, shall save him harmless before the other. If he come not at the day, the liberties shall be taken in the Kings hands in name of a distress, and when they, appear, be repleuied upon their demand. In which repleuins they shall answer immediately.

If their ancestors died seised, then the K. shall have a sommons for them to appear before the King, or his Justices of assise: at which day if they come not, nor be assoygned 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 adiourned unto short days, and have reasonable delays according to the discretion of the Justices, a • it is used in personal actions.

Statutes.

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

33. H. 8. cap. 22. Set virtute officij only to find an office of lands holden of the King of v. l. value or above, pain v. l.

8. H. 6. cap. 16. Take enquests but of people impanelled by the Sheriff, and those enquests must be returned within a month after the taking. Paine xx. l. So of Commissioners.

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

1. H. 8. cap 8. Made perpetual. 3. H 8. cap. 2. Sit unless he have lands, &c. to the clear yearly value of xl. Marks. Paine xx. l.

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

Be Eschetor in three years again after that year ended.

34. E. 3. cap. 13. Stat. 1. A Trauerse given to the party whose lands are seised by office for alienation without license, or nonage of the heir in Ward, it shall be sent to the Kings Bench to be tried.

36. G. 3. cap 13. Stat. 1. Upon a traverse or Monstraus de droit, the Chancellor may let him (that tendereth it) the Lands holden to farm finding surety to do no wast.

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 former Statute.

All letters pattents within the month shall be void.

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

1. H. 8. cap. 16. The party shall have 3. months liberty after the office returned to tender his traverse.

2. E. 6. cap. 8. Where an office is found for the King, he that hath interest for years or by Copy in the bond, or any rent Common, office, fee, or any profits of whatsoever estate out of the land shall have them, though they be not found in the office in such sort as they should if no office had been at all. When land is found holden of the K. immediately, and that it should descend or come to an heir within age, which is or ought to be in the Kings ward, that heir within age may have a Trauerse.

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, and another found heir to the same person in another County, or when one untruly is found lunatic, idiot, 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 praemunire is seised of lands, whereunto another hath just title of an estate of freehold. And • lthough the King be entitled in such • nds by double matter of record.

Upon every such traverse a Scire facias • hall go out as in trauerses or petitions be • ore, and the defendant therein have the • me advantage that they had in a Scire fa • ias in a petition before.

In every traverse pursued by virtue of • his act, where by the Common Law the • artie were driven to petition, two writs of • earch shall be granted. After Judgment • pon a traverse sued by virtue of this act, if • t appear by matter of record that the king • ath a former title, the same shall be saved • nto him.

Artic. super chart. cap. 19. When the Es • hetor or Sheriff seise land into the Kings • and without cause: upon ousting of the Kings hands the party shall have the mesn • ssues restored to him.

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

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

23. H. 6. cap. 17. In a Scire facias upon • Trauerse against any pattentee no protestion allowable Upon an office found virtute officij, whereby the King is entitled •• ones wardship, the heir shall never have livery, that is to say, the land delivered 〈◊〉 of the Kings hands. But upon a perfect office virtute breuis, or commissionis, if it b 〈…〉 special writ or commission, not a gener 〈…〉 one to inquire 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 〈…〉 ding of an office for the King, then for the having of the land out of the Kings h 〈…〉 . Those for the finding of an office are, 1. • Diem clausit extremum, Mandamus, & Deuenerunt, to inquire what lands holden of the King, and what of other, the ancestor 〈◊〉 seised of the day of his death, the value, the day of his death, who is the next heir, 〈◊〉 of what age.

The Diem clausit extremum is to be •• ed 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 enheritance cannot descend, if they offer speedily after Diem clausit extremum in the Chancery to render till the Infants age, as other will without fraud.

The Mandamus after the year. And • ere it must further be inquired who took • e profits. The Deuenerunt is when the • uncester died in ward to the King. 2. a • uae plura, melius inquirendum, & Datum est • obis intelligi, upon defect in offices found by • ertue of such writs or commissions, but • hese shall never go out upon an office • ound virtute officij. Quae plura upon leuy • ng out of any land in those offices.

Melius inquirendum upon any other de • ect in the office, as if the office were insufficient or uncertain, or the land of greater value, then is found in the office: or • eld by other services, or the Tenant seised of other estate.

Datum est nobis intelligi, upon an office finding 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 Kings hand are an Aetate probanda, and a writ of Lyuerie. Aetate probanda is to inquire whether he be of full age, or not, before which time he is not to have lyuerie. A writ of Lyuerie is after a perfect office, (for no livery shall be upon an insufficient office) finding a tenure in chief whether by knights service or soccage: and whether the heir then be within age, or of full age. But he that holdeth of the King by knight service, but not in Capite, shall not sue livery. But because none can enter upon the King, the heir (if he were within 〈…〉 when he cometh to his full age shall 〈…〉 an ouster lemain, to have all the la ••• •• liuered to him at once by the King, which is called a livery, for if this be sued and •• mention made of an auowson, all shall •• reseised, and the King answered of all t •• mesne issues. And a livery must be entire, and not by parcels. The manner thereof i • this, when the heir in the Kings Ward i • 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 Chamberleine of the King to receive his homage. And when he hath received his homage he shall have a writ from the Chamberleine to the Chancellor testifying that he hath received his homage, and thereupon he shall have a writ of livery.

Statutes.

28. E. 3. cap 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. cap. 46. The Court of wards •• cted to be a court of record, officers appointed: a Master of wards that shall keep the Seal, an Atturny, a Receiuor, two Auditors, two Clerks, a messenger and an vsher.

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

They may sell and grant the K. wards or • heir lands during their minority, &c.

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

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

Widows and the fines for their marri • ge are in the survey of this Court.

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

The grantee of the custody of Wardship • f any of the Kings wards shall sue forth • is patent within four months next after • e assignment of his bill, else the bill and • ffect thereof to be void.

Processe shall be made out of this Court • gainst wards intruding upon their lands • efore livery, or ouster lemaine under the • reat seal.

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

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

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

A Clarke of the liueries also added.

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

None that hath land over the clear year • value of v. l. (otherwise it is where the land is under that value) shall have livery before inquisition or office, by the King • Writ or Commission, which shall not pa •• out of the Chancery or other Court without a warrant directed to them out of the Court of Wards under their hand.

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

A general livery may be sued where the yearly value of the land exceeds not 11. l • but such general livery shall not be without warrant from this Court. The pa •••• for livery may be sued forth within thr •• months next after the assignment of th • Bill by the King or his Court.

Two being found heirs by one and •• same title, whether twinlings that a • males, found heir by one self same office or diverse men by several offices found heirs to the same auncestour, 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 another office findeth that the gift was in general tail, and that four daughters are 〈…〉 heirs. There must be a Trauerse and no enterpleading, for they claimed not by o •• ancestor and title) the King shall not 〈…〉 livery till by enterpleder the truth • ee ••• cussed at his full age that was found 〈…〉 first: for if A. of v. years is found heir •• the kings Tenant, and after by anoth •• office B. is found his heir, and of full age, B. hath no remedy till A. come of age, and • hen they must enterplead. And in every enterpleading, an office must be found for both. And if one be found heir of full age, • nd after another within age, the enterpleading shall not stay till the full age of the second, because the other was found heir first. Among coparceners the King upon livery shall make partition. And that is for the Kings benefit, because upon that partition everyone shall have some part of the lands in chief. For if any should have for their portion only the lands holden of other men, then the King should lose his pre • ogatiue in those lands forever, because • hey that have them when they shall die • old no lands of the King in Capite. And • herefore in the writs of livery there is a • rouiso, that everyone shall have in her • urpart, parcel of the lands holden in • hiefe.

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 barrettors 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 learned in the Law shall be assigned by the Kings commission, to hear and determine felonies and trespasses done in the same Counties.

34. E. 3. cap. 1. In every County of England 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 distreine evil doers, rioters and barrettors, and to pursue, arrest, take, and chastise them according to their trespass and offense, 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 aduisements, and also to inform themselves, and to inquire of all those that have been pillars and robbers in the parties beyond sea, and be now come again, and go wandering and will not labor as they were wont in times past. And to take and arrest all those that they may find by indictment, or by suspicion, and to put them in prison, and to take of all them that be not of good fame (wheresoerver they shall be found) sufficient surety and mainprise for their good abearing towards the King, and towards his people, and to punish the other duly, to the intent that the people be not by such rioters troubled and endamaged, nor the peace blemished, 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 customs aforesaid.

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

2. H. 5. cap. 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 Saint 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 S. Thomas the Martyr, (which is the 7. Iulij) and more often if need be. And that the same Justices hold their Sessiions throughout the whole Realm of England in the same weeks, every year from hencefotth.

2. H. 8. ca. 5. Justices of peace from henceforth to be made in the Counties of England, shall be made of the most sufficient persons dwelling in the same Counties, by the advise of the Chancellor, and of the Kings Council, without taking other persons dwelling in foreign Countries, to occupy such office, except the Lord's 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 Duchie 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 xx. l. by year. This extendeth not to Towns corporate, Boroughes, &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 county during the time only that he exerciseth the office of the Sherifewicke.

Any man suspecting another of a felony committed or but intended, •• 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 so as thereupon he commit him to the jail, as 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 suspicion. So if I would arrest one that hath robbed me, and I. S. say I shall not, this is good cause to suspect I. S. as accessory: and what is sufficient cause of suspicion, and what not shall be tried by the Justices. But neither can any man arrest one for a Trespass, unless it be the Constable, nor for a felony, except himself suspect the party (though he doth it by the commandment of one that doth suspect him) and that the same felony be indeed committed.

As if it be for robbery, the self same thing must be stolen: for to say, that diverse beeues were stolen, and because he suspected I. S. to have stolen six beeues, he did arrest him, is not good, without alleging expressly, that those six beeues were stolen.

With indictments of Trespass, information upon penal Statutes (such as inflict a pecuniarie 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 couenous release or recovery (except it be by action) tried 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 offense committed, 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 after the time shall be void: where a shorter time is limited in any penal Statute the suit must be brought within that time.

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

31. Eliz cap. 5. Every information except champerty buying of extortions and offenses against

1. Eliz▪ cap. 1. Against forrestallers, &c. must be brought into the county where the offense was indeed done But officers of record using to pursue informations by virtue of their office may do as before.

31. Eliz. cap. 5. All suits for using unlawful, 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 offense is committed, and not out of the same County.

29. Eliz. cap 5. The defendant in an information in the Kings Bench, Common place, or Exchequer, where he is baileable, or by leave of the Court may appear by Atturny, may the first day appear by Atturny of that Court without putting in baile.

31. Eliz. cap. 10. This former Statute (29. Eliz cap. 5.) shall extend only to natural subjects and free denizens.

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 party his costs and damages to be assessed by the Court.

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

Enditements of the death of a man are to be taken before the Coroners. So is it not of any other felony, for the Statute 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 proceed in the inquiry.

Statutes.

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

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

Statutes.

31. Eliz. cap. 3. Upon a Somon in a real • ction fourteen days before the return, a • roclamation of the Somons shall be on a • onday immediately after divine service, at • he door of the Parish Church where the and lieth, and returned with the names of • he Sommoners. And till that done, no Grande cape shall go out, but an alias & • luries as the case requireth.

If the Tenant be returned summoned, where in deed he was not, the writ shall abate.

Secondly, it is sommons & resommons, or another like sommons in a mortdauncestor, Iuris vtrum, and an assise of darrein presentment.

By the goods, as in assizes of novel disseisin and nusance, where the original process is a Pone per vadios & saluos plegios. A Pone per vadios & saluos plegios is a process to attach the defendant by certain of his proper goods not borrowed, or in pledge unto him, being mere personal chattels, neither a chattell real, as a ward, &c. nor parcel of his freehold as a clod of earth, &c. which he shall forfeit if he appear not. And the Sheriff may take those goods with him, or leave them with the party at his pleasure. But whethersoeuer he do, the property is no • out of the party till he make default.

The original process by the person is • Capias (which is process to imprison him) then an exigent or solemn demand •• five several County Courts immed 〈…〉 following one another. Therefore no Allocato comitatu lieth if a County be hold • after an exigent returned, and for not app •• ring, judgment, to be out of the protection of the King and his Laws, which we call outlawry. The (c) judgment whereof i • to be given by the Coroner in the f 〈…〉 County. For at the Common Law there is no outlawrie, but where the writ is vi & armis, as in trespass, conspiracy, felony, &c. And the reason why it lieth there, is, because they are acts founded upon the sole tort of the defendant. And this is in m 〈…〉 felony and treason.

Statutes.

1. H. 5. cap. 5. In every original writ of actions personals, appeals, & indictments, in which the Exigent shall be awarded: to the names of the defendants in such writs, original appeals and indictments, additions shall be made of their estate and degree or mystery, and the Towns, Hamlets and places, and the Counties whereof they were or be in which they were or be conversant: Otherwise all outlawries thereupon pronounced shall be none. And before these • utlawries pronounced, the said Writs and • nditements shall be abated by the excep • ion of the party omitting the said addi • ions.

6. H. 6. c • . 1. All Exigends and outlawries • pon indictments in the K. Bench of felony • nd treason shall be void, if before the • xigend awarded, a Capias be not directed to • he Sheriff of the County, whereof they be • amed in the indictment, having six weeks space (or larger, by the discretion of the Justices) before the return.

8. H. 6. cap. 10. In every indictment or appeal 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 indictment is supposed to abide returnable, before the same Justices, &c. containing the space of three months (where the Counties be holden from month to month) of four months: (where they be holden from six weeks to six weeks) by which Capias the sherife 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 apparance) in two Counties before the return of the writ. Any exigend or outlawrie otherwise pronounced shall be holden for none.

10. H. 6. cap. 6. The like is to be observed when any such indictment or appeal 〈…〉 ken before Justices of peace, or other •• uing power, shall be removed before t •• King in his Bench, or elsewhere by C 〈…〉 rari or otherwise.

6. H. 8 cap. 4. Upon every exigent a writ •• make three proclamations (returnable 〈◊〉 of the return of the exigent, and the p •• clamations to be made, two in the full County Court, the third at the genera •• Sessions) shall go out to the Sheriff of every other County (viz. than that where th • action is brought) where the defendant i • named to be, or late to have been; if the Kings writ run there: otherwise to the County next adjoining to that where he i • so named. Being named late of London •• Middlesex, the writ of proclamation shall go out to every other County where he i • abiding, time of the exigent awarded. Every outlawrie to the contrary shall be avoided by plea.

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

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

If the Exigent be returned not fully ser • ed without any folly in the Plaintiff, as where the defendant after demand at • o Counties rendereth himself in Court, • d upon mainprise found hath a Superse • ease, and yet appeareth not at the day. But • therwise it is upon a Supersedeas by a • other person bearing the same name, or in • se where no more Counties but four • n be holden between the delivery of the • rit to the Sheriff and the return, for it is • e Plaintifes own folly in the first case to • ut no difference between their names, • d in the second to take so short a time. • hough it be in the hustings of Lon • on which are holden uncertainly: the • laintife bringing a new exigent which we • ll an Exigent de nouo before any other County holden, but else not, shall have the • enefit of the former Counties. And there • ore it is called an exigent allocato Comitatu, • r allocato hustingo, if it be in London, where • heir hustings are as the County Courts.

Outlawry dishableth him from suing a • y action.

Statutes.

5. E. 3. cap. 12. In case where the Plain • ife hath recovered damages, & he against whō the damages be recovered, is outlawed • t the K. suit, no charter of pardon shall be granted, except the plaintiff be satisfied for • is damages. When one is outlawed by process appearance no such charter shall 〈…〉 ted, except he yield himself before 〈…〉 stices from whom the exigend issued; •• shall cause the party to be warned to •• peare before them at a day. Where 〈…〉 the Plaintiff appear, they shall plead 〈…〉 the first original, as if no outlawrie •• been. If the Plaintiff appear not (and •• warning be duly witnessed) he that 〈…〉 lawed shall be delivered by virtue of •• Charter.

31. Eliz. cap. 3. Upon every extent in a •• sonall action a writ of proclamation 〈…〉 go out of the same Court to the S 〈…〉 the County, where the defendant at t •• time of the Exigent shall be dwelli •• Whereupon three proclamations shall •• made; one in open County Court, anot •• at the quarter Sessiōs, the third one m 〈…〉 at the least before the Quint' exact at •• door of the Parish Church where the •• fendant shall be dwelling at the time of t •• exigent, upon a Sunday immediately after •• uine service. All outlawries otherwise sh •• be void.

But before reuersing of any such outlawrie in this respect, the defendant shall put i • baile, not only to answer the plaintiff in • new action, but to satisfy the condemnation, if the Plaintiff begin his suite within two Termes.

Prerogatiue.

By outlawrie all his chattels, whether • eall as a term for years (and there • re there the King may seise the land it • fe, and plow and sow, and occupy it as • e term or might) wardship, &c. or per • nal, as ones goods (the property where • is presently in the king, and he may have • detinue against every man that hath a • ossession of them) profits of land, • herein he hath a freehold or inheritance, • iz. rents, corn, mannurance of his pasture • et in this case he cannot, &c. seise the land • self, nor occupy, plow, or sow it, or grant • away. And if the party so outlawed make • feoffment, this feoffment is good, and • he King after that shall have the profits • o more.) But not a furnace table fixed • pon the land with posts, boards, doors, windows, and such like annexed to a free • old are forfeit to the King, not only those in possession, but even such as he hath a right unto, as debts, (viz due by specialty, but not by a simple contract, for the reason supra fol.) matters in account, goods taken away, &c. But not damages which he is to recover, as by reason of trespass done to his land, battery, false imprisonment, or such like.

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

Statutes.

25. E. 3. cap 14. The second▪ Capias i 〈…〉 of felony must be returned three w 〈…〉 ter. In case of Felonie and high 〈…〉 they that tarry the Exigent, though t 〈…〉 they render themselves, forfeit th 〈…〉 tells.

Mixt, is that which is so by his 〈◊〉 as for want of goods he may res 〈…〉 person. As first in all Praecipe quod f 〈…〉 , and other personal praecipes, and in per •• nall Sifecerit te securums, not being 〈◊〉 the peace, and likewise in all Insti 〈…〉 vicontiell writs, the process is a S •• mons by the defendants goods, an 〈…〉 meant or Pone per vadios and distress 〈…〉 nite. Or if upon the Sommons a Ni • il •• returned, that is to say, that the party 〈◊〉 nothing whereby to be summoned, th 〈…〉 continual Capias.

Distress infinite is a process to 〈◊〉 him continually after, till he do appears •• certain of his goods, and profit of his lands, or as we use to say, issues: which 〈◊〉 loseth if he appear not.

Statutes.

Westm̄ 2. cap. 37. No distress shall be but by Baylifes sworn and known.

Westm. 2. cap. 39. The plaintiff may a • err that the Sheriff might have returned greater issues, and thereupon shall have a • udiciall writ to the Justice of assise to inquire of what & 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 auerment of two small issues returned given against the bailifes of franchises as well as the Sheriff.

Upon this distress must be returned in ••• ues the value of all his lands from the Teste of the writ until the day of the return. As if his land be worth xii. C. by the year, and a months space between the Teste and the return a C. l. issues must be returned upon him.

And with these issues whether in this case or in any other case of a distress infinite, as after a venire facias to return Jurors, &c. the land is charge able into whose hand soever it come after. 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: or if an Abbot lose his issues, and after be translated and made a Bishop, the successor during his life shall be charged. And in this respect because the land is charged, the beasts of any stranger coming upon the same land may be distrained for the issues lost.

In such process •• these where 〈…〉 ment or distress should go out, 〈…〉 dant be a 〈◊〉 clark he 〈…〉 ned by his person, or 〈◊〉 if 〈…〉 lay see else. as if the Sheriff re 〈…〉 Cleric •• been fieat •• non hab ••• 〈…〉 Processe shall go out to the 〈…〉 make him appear by the ••• es of 〈…〉 nefice, which is called a ve • ire f 〈…〉 ricum.

A Capāas lieth not here against 〈…〉 of the Realm. But against a Knight 〈…〉 eth, for a man may be a Knight 〈…〉 freehold: So cannot an 〈…〉 common e • endement. 〈◊〉 if 〈…〉 thing in the County where he is 〈…〉 party shall have an Elegit sure 〈…〉 such a County where he hath assets.

In a repleuin in the County 〈…〉 it by writ or plaint, if the go 〈…〉 ed away, so as at the Tenants 〈…〉 cannot be restored, As if he that 〈…〉 drive them to a Fortlet or Castle, or 〈…〉 the County, &c. whereby the Sheri 〈…〉 turn upon the pluries that they are 〈…〉 ned, process of with e ••• am lieth, 〈…〉 for the plaintiff to have of the others 〈…〉 till restitution of his own.

Statutes.

Westm̄ 1. cap. 17. The Sheriff or Baylife may take the power of his County •• Bailiwick, and beat down a Castle or 〈◊〉 • here such beasts are enclosed, if he that • oke them will not make deliverance.

Secondly in Trespasses upon the case • gainst the peace, and in all other trespass • es, whether it be a writ of deceit or Tres • asse vi, or though it be a Writ from the King himself upon a contempt or breach • f the peace, as refusing to come at the King, being sent unto him with money to • ide him in his war, and spoiling and wa • ting men's lands, goods, and chattels, and other unlawful acts doing, and so every contempt it is attachment: And if a Capias • n these cases go ou • first, and the party be • aken thereby, he shall be dismissed, because • t should be by pledges, distress infinite, and upon a Nihil returned, a Capias, as before.

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

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

Statutes.

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

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

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

19. H. 7. c • . 9. Like process given in actions upon the case sued in the Kings Bench, and Common place, as in actions of Trespass and debt.

23. H. 8 cap. 14. Like process given in every writ of annitie as in an action of debt