30. St. 18. El. 13. an 18. El. it was established That euery such person which shal be Atturney for any other person or persons being demandant or plaintife tenāt or defendāt in any actiō or suit cōmenced in any of the K. courts of record at West plead to an issue in the same shal deliuer or cause to be deliuered his lawfull warrant of Atturney to be entred of record for euery of the said actions or suits wherin he is named an Atturney to the officer or his deputy ordained for the receit or entring therof in the same terme whē the issue is entred of record in the said court or before vpon paine of forf of x. l. for euery default for not deliuery of the said warrāt the one moity to the K. his heirs successors the other to such officer to whō or in whose office the same warrāt shold be deliuered entred or filed to be rec by A. of det B. P. or I. wherin no W. E. P. c. also he shal suffer such imprisonmēt as by the discretiō of the I. of the Court where any such default shall be made shall be thought good Fit N. B. 9 6 If a man make an Atturney in a real action brought against him Deceit by an Atturney after by couin agréed vpon betwéene the demandant and the said Atturney the same Atturney maketh default whereby the tenant doth loose his land then the same tenant who lost his land may haue a writ of Deceit against the Atturney And so it is if a man bring an action of Trespasse against two others Register fo 113. Fit N. B. 96. and the plaintife and an Atturney by couin agréed vpon betwéene them doe cause two straungers not parties to the writ to come into the court and to say that they be the same two defendants named in the writ and that they do constitute the same man to be their Atturney in that suit wherupon the same Atturney as Atturney to the defendants named in the writ do plead to an issue and after suffer the enquest to passe by his default by which meanes the plaintife doth recouer against the defendant in this case they who be indéed defendants and against whom the same action of Trespasse was brought may haue a writ of Deceit against the same Atturney that appeared as Atturney for them and shall recouer their dammages 10. Ed. 4. 9. 20. Eliz. Dyer 367. If an Atturney be informed by his client to plead a false plea which he cannot in conscience plead he may procure this Entrie to bée made Quod non fuit veracitér informatus ideo nihil c. to defend him in a writ of Deceit brought against him by his said client If an Atturney do sue forth a Capias where there was no originall writ before 20. H. 6. 39. he shal be committed to prison and thrust out of his place in that and all other Courts 4 As the law doth punish her Officers who do practise or commit any deceit or fraud in stead of truth in place of iustice The law reiecteth fraudulent acts so doth she renounce and condemne all acts of greatest importance if they be intermixt with guile and falshood For though Iudiciall acts as Fines Recoueries Warranties deedes inrolled c. being of their owne natures iust and lawfull and meanes to settle titles to appease controuersies and to yeeld each person his due bee therefore greatly respected and fauoured in her sight yet if any of them be deuised or executed by couin or to deceiue then she doth vtterly reiect them and adiudge them void Co. li. 3. 77. As a man was Lord of the Mannor of D. wherein there was a tenant which had some parcels of freehold land in fee simple the Lord demised certaine lands parcell of the demesnes of his said Mannor to the said freeholder for xxj yeares reseruing certaine rent and demised some other lands parcell of the said demesnes to the same fréeholder at will reseruing another rent and graunted by copie of Court roll certaine other lands parcell of the same Mannor to the sayd freeholder for the terme of life according to the custome of the sayd Mannour reseruing a third rent And after the same freeholder demised all the sayd lands which hee held by lease for yeares at will and by copie in D. to a straunger for the terme of life and then the same freeholder leuied a fine with proclamations of so many messuages so many acres of land medow pasture c. as he had by lease for yeres at will by copie of Court roll of his owne inheritance in D. by couin fraud to barre the lord of his inheritance All the proclamations were made and the fiue yeres were past the same fréeholder continued in possession of the land which was graunted to him by lease for yeres at will and by copie and paid to the Lord yerely his seuerall rents for the same And after the stranger to whom the fréeholder made the lease for life died and the lease which the Lord made to the fréeholder for xxj yeares expired And then the same freeholder claimed the inheritance of all the land which the Lord demised vnto him for yeares at will by copie intending to barre the Lord thereof by force of the fine with proclamations the fiue yeares past But this fine was adiudged void against the Lord and that it did not barre him to clayme and enter vpon his land for that it was leuied by him who had but estate in those lands for yéeres at will or by copy of court Roll and that neither had nor could pretend any title to the inheritance of the land but only by fraud practised the disheritance of the leassor And whereas the meaning of the makers of the statute of Anno 4. H. 7. St. 4. H. 7. 24 was as it may appeare by the preamble of the same that fines ought to be of the greatest strength to auoid strifes and debates when the lessée for yeares at will or copyholder shall make an assurance by fraud and couin A fine leuied of land to defraud the right owner therof to the intent a fine may be leuied to disherit the right owner of his land this is not a meanes to auoid or appease strife but to begin it where none was before and therefore the same statute did not intend to ratifie such an estate begun by deceit And further the meaning of the makers of the said statute was not That he who could not leuie a fine of this land in respect of the debilitie of his estate therin should be enabled by his owne practise and deceit to leuie a fine therof to barre him who had a lawfull title therein and a right to leuie a fine thereof And the same lessée for yeares tenant at will and copyholder contriued his fraud in so secret manner that by his couert practise he depriued his
9 And because seruants in husbandrie labourers artificers and other persons of meane degrée should take no incouragement nor occasion to breake the peace nor weare any weapons therewith to menace threaten or terrifie others Therefore by a Statute made anno 12. R. 2. it was ordained St. 12. R. 2. 12. That no seruant in husbandrie or labourer nor seruant of artificer or victualler shall beare any Buckler Dagger or Sword vpon paine of forfeiting of the same except it be for the defence of the realme in the time of warre and then by the suruey of Arraiers for the time beeing or in trauelling with their masters or on their masters businesse And Sherifes Mayors Baylifes and Constables shall haue power to arrest all offendors against this Statute and seize the said Bucklers Swords and Daggers and kéepe them vntill the Sessions of the Iustices of peace and the same shall present before the same Iustices in their Sessions together with the names of them that did beare the same But this shall not be preiudiciall to the franchises of Lords touching forfeitures due to them By the foresaid two Statutes of 2. Ed. 3. and 12. R. 2. it doth appeare that the meaning of the makers of those lawes was not onely to preserue peace to eschew quarrels but also to take away the instruments of fighting and batterie and to cut off all meanes that may tend in affraie or feare of the people Assurances made by menace 10 As menace of life and member giueth cause of an action of trespasse to him that receiueth losse or hurt thereby intituleth the king to a fine 20. Ass p. 14 28. H. 6. 8. in like sort an obligation a release or déed of annuitie made and granted by menace are voidable by the law so that the same menace be of life member or libertie viz. of some hurt to be done to his body by death maiheming or imprisonment and not to his lands or goods for if A. will menace B. that if he will not make him an obligation of xx l that then he wil disseise him of such land 7. Ed. 4. 21. 4. H. 4. 2. 39. H. 6. 51. or dispossesse or take from him such goods in this case if B. doe make and deliuer the said obligation of xx l to A. in an action of debt brought by A. against B vpon the said obligation B. shall not auoyd this obligation in respect of this menace because this menace did not tend to the hurt of the person of B. but to preiudice him in his lands or goods for the redresse and recouerie whereof the law would haue giuen B. a sufficient remedie if A. should haue done him the wrong which he menaced And he that will take an aduantage to auoid his déed by menace must in this plea expresse Fitz. Dures 13. how and in what sort the other partie did menace him viz. that he drewe his sword against him and threatened to kill him if he would not seale and deliuer such an obligation release annuitie c. If A. doe menace B. in one countie that he will kill or maihem him 33. H. 6. 24. 2. H. 5. 10. if hee doe not seale him an obligation of xx l or stand to the arbitrement of C. in a cause depending in question betweene them And after B. beeing at libertie in another countie doth seale the same obligation or doth stand to the arbitrement of C. this obligation or arbitrement is void for it shall be intended to bee done by force of the first menace And if A. doe menace B. that he wil kil him imprison maihem or beate him if he doe not make an obligation of xx l to C. 39. H. 6. 36. Co. li. 2. 9. if in this case B. do become bound by obligation to pay vnto C.xx l. in an action of debt brought vpon this obligation by C. against B. the same B. may auoid this Obligation which he made by this menace of A. though the menace was made by one man the Obligation was made to an other for that the menace was the cause of the making of this Obligation which the law doth respect and punish and not only the partie to whom the Obligation was made 11 Assault batterie be for the most part an accomplishment of that which menace did threaten a performance by déedes of that What is assault and batterie which the other forewarned by words that is to say a violent forcible abusing or attempting to abuse by blowes and stripes the person of an other contrary to the peace of the Realme and the law of the same which hath ordeined that no person shall be Iudge or reuenger of his own wrong but leaue that to the censure of the law that is alwaies readie to heare redresse euery mans iust complaints for he that doth attempt to assault or beat an other to satisfie his own turbulent spirit or to reuenge his owne priuat iniurie doth as much as in him lieth to wrest the sword of gouernmēt out of the K. hands to take from the law her equal censure in justice to make himself both Iudge executioner in his own cause because this disordered person contemning the justice of the Law hath assaulted or beaten an other without warrant of law broken thereby the peace of the realm the law hath deuised a quiet peaceable course to reduce him again to order in punishing him by an action of Trespas of assault batterie wherin being conuicted he shal satisfie the party grieued his damages pay to the K. a fine his body shal be committed to prison vntill he hath satisfied it Though the party menaced shall not haue his remedy by action of Trespas vnlesse the same menace was of life member and also that the party menaced receiued some losse or preiudice therby in his liuelyhood or estate for that the menace the hurt which the party doth receiue thereby being ioyned together do make the trespas giue cause of the action of Trespas Yet in an action of Trespas of Assault battery where it is proued found that the offendor did make an assault only as one did strike at an other with a hatchet but did make no batterie or hurt the person of any other it is otherwise for séeing assaulting doth tend to the breach of the peace 22. Ass p. 60 42. Ed. 3. 7. 40. Ed. 3. 40. 6. H. 7. 1. he that maketh an assault doth his indeuor to hurt the law doth giue to him that is assaulted an action of Trespas to recouer his damages to the K. a fine for by the assault the party assaulted is put in feare euill handled hindred of his busines And if he be diuers times assaulted 45. E. 3. 24. he may haue one action of Trespas for all those assaults shall recouer damages according to the number and grieuousnes of them And
fine ImprisonmeÌ„t for offences done to the iustice of the Realme 57 As in the cases aforesaid imprisonment of offendors is both tollerable requisit when it is inflicted for misdemeanors done to the peace of the Realme so in many other cases it is as necessary when it is imposed for offences done to the law justice of the Realme being the foundation principall piller of the same peace and without the due execution whereof there can not be a general and perfect peace And amongst many other transgressors who doe offend contrarie to the justice of the Realme and yet in a sort doe preserue the peace the law doth principally note foure kinde of persons worthy for their offences to be imprisoned Whereof the first be they who doe commit some acts that be wrongfull iniurious and prohibited by the common lawes or Statutes of the Realme The second be they who doe attempt and prosecute vniust and wrongfull actions or suits to molest trouble or charge others The third be they who being impleaded vpon iust and good causes doe plead false or dilatorie pleas in retardation of justice and hinderaunce of the due and ordinarie course of the law The fourth be they who vpon stubbornesse contumacie or wilfulnesse refuse to doe that whâ—â—â— they know the law doth require at their hands and may enforce them vnto of euery of which amongst many I will insert some fewe cases ImprisonmeÌ„t for coÌ„mitting vnlawful acts As to the first by the Statute of Anno 5. Sta. 5. El. 14. Eliz. he shall be imprisoned and set vpon the pillorie who doth falslie forge or willingly assent or cause to be forged or made any false déede charter or writing sealed Forging of deéds Court Roll or the will of any person in writing S. Forgery â— to the intent that the estate of fréehold or inheritance of any person in any lands should be recouered or charged c. for forging of déeds is an iniurious and wrongfull act and alwaies hath bin hated detested and persecuted in this Realme Sta. 13. E. 1. 11. By the Statute of Westm 2. If the master do assigne auditors to any Bailifes Seruants Chamberlaines or other receiuors which are bound to yéeld accompt Accomptants found in arrerrages and it chaunce them to be found in arrerages all things being to them allowed they shall be arrested and by the testimonie of those auditors committed to the next Gaole which the King hath in those parts and shall be receiued by the Sherife or his Gaoler and prisoned fettered in irons liuing of their owne goods vntill they haue fully satisfied their master of all the arrerages for detayning of the arrerages of an accompt is a plaine and manifest wrong to the master 27. H. 6. 8. And this imprisonment must be presently after the accompt taken Disseison contrarie to his owne lease and not any distance of tyme after And he that doth a disseisin or maketh an entrie contrarie to his owne déede 14. Ass pla 12. Or is conuicted for the imbeziling of an Exigent or for some other notorious deceits committeth open and manifest iniurie and therefore shall be imprisoned 8. Ass â— 20. 28. Ass pla 28. If one man do make a lease of a Tenement by writing to an other for terme of life of the lessée whereupon the lessée doth enter and enioyeth it and after the lessor doth enter and disseise the lessée for life and then the lessée do bring an Assise against the lessor and recouer against him the Tenement leased in this case the same lessor shall be imprisoned for that he made an entrie contrarie to his owne deede and so willingly committed an open and manifest wrong 18. Ass p. 3. The same law is if a man do make a disseisin of land of his whole title wherein he hath before made a release or confirmation to the tenant of the same land in this case he shall be imprysoned And if a Gardian do take a feoffement of his wardes land being within age Fitz. Assise 395. he shall be imprisoned therefore for this and all the former be iniurious acts and knowen to the offendors to be prohibited by the law As touching the second point they be also worthy to be imprisoned who do attempt or prosecute vnlawfull suits to the trouble vexation of others As if one do bring an Appeal against an other 50. Ed. 3. 1. Imp. for prosecuting vnlawfull suits and that appeal do abate by the plaintifes nonsuit or by any other default of his he shall be imprisoned A woman brought an Appeal of the death of her husband against one 9. H. 4. 2. who was attainted and hanged at her suit and after shee brought an appeal against an other man of her said husbands death who pleaded the attainder of the first man in barre whereupon the appeal was abated and the woman committed to pryson for her wrongfull vexation and suit A woman brought an appeal against a man of the death of her husband 8. H. 4. 18. and her said husband was brought into the court and shée was examined if that were her husband who said yea but shée supposed that he had béen dead and therefore shée was imprisoned for her false appeal If one do bring an appeal against an other for a Murder Burglarie Robberie or other felony committed in W. in the County of N. and there is no such W. in that County the appeal shall abate and the plaintife shall be imprisoned for it is manifest that this suit was commenced vpon malice and to put the defendant to vexation and trouble and not vpon any iust cause Thirdly they are worthy to be imprysoned who do plead false Imp. for false or dilatory pleas or dilatorie pleas in hinderance of suits and retardation of justice As if a man in his plea do denie his owne deed 33. H. 6. 54. 45. Ed. 3. 11 6. Ass p. 4. 24. E. 3. 74. Sta. 34. Ed. 1 or do plead a false déed made to himselfe which is found against him by verdict or do plead a déed that is rased enterlined or otherwise suspicious that is adiudged against him he shall be imprisoned By the statute intituled De coniunctim feoffatis if the tenant in Assise do plead iointenancie of the land in demaund with his wife ImprisonmeÌ„t for false pleading of iointenancie or a stranger and sheweth a déed to testifie the same to the intent to abate the plaintifes writ and if it be found by the Assise that the exception was maliciously alleaged to delay the plaintifes right the said tenant shall be one yeare imprysoned though the assise passe for him against the plaintife And if that tenant in the assise be an Enfant who doth plead iointenancie yet if that plea be found against him 37. Ass pl. 1. he shall be imprysoned for that the said statute is generall 3. H. 6. 51. St. 13.
of the stat of 18. El. 14 Maintenance Champertie buying of titles Embracery haue bin accounted so offensiue professed enemies to the iustice peace of the realm that though by the stat of an 18. El. it is ordained Stat. 18. El. 5 That euery informer vpon any other penall stat shal exhibit his suit in proper person pursue the same onely by himselfe or by his Atturney in court and that none shal be admitted to pursue against any person vpon any penall stat but by way of information or originall writ and not otherwise nor shall haue any deputy at all And that vpon euerie such information which shal be exhibited a speciall note shall be made of the very day moneth yere of the exhibiting therof into any office or to any officer which lawfully may receiue the same without any maner of antedate to be made thereof And that vpon euery such proces shal be indorced aswel the parties name that pursueth the same proces as also the stat vpon which the information in that behalfe made is grounded and that no Informer or plaintife shall compound or agrée with any person that shall offend or shal be surmised to offend against any penal statute for such offence but after answer made in court vnto the information or suit in that behalfe exhibited or prosecuted nor after answer but by the order or consent of the court in which the same information or suit shal be depending Yet in the said stat of 18. El. there is a prouiso That it shal be lawfull for any person or persons grieued by means of any maintenāce chāpertie buying of titles or other embracery to pursue vpō any stat prouided against maintenance champerty buying of titles or embracery as he or they might haue done before the making of the said act Which prouiso was made to the end that all persons grieued by reasons of any maintenance champertie buying of titles or embracery should be left at libertie to pursue chasten the offendors therin by all such means as former laws haue authorised thē not be restrained by any of the ordinances or articles before rehearsed for that the said offēces were by the makers of the said stat adiudged to be greater impedimēts obstacles to the execution of iustice than other penal stat were 15 As the policie of the realme hath deuised the foresaid popular actions and suits to enable euery person that will Assurances to haue mainte void in diuers cases to pursue prosecute maintainors champertors buyers of pretenced rights c. to the intent the sooner to root out extirpat those offendors who indeuor to wrest the execution of lawes out of their due course to subuert iustice thereby to hinder the peace of the realme so hath it in some cases gone further ordained that some assurances made for maintenance shal be presently void as it appeareth by the stat of an 8. St. 8. H. 6. 9 H. 6. wherby it was enacted Lands gotten by force assured to haue maintenance That if any person after his entry into lands or tenements holden with force do make a feoffement or other discontinuance to any Lord or other person to haue maintenance or to toll defraud the possessor of his recouerie in any wise If alter in an Assise or other action thereof to be takē or pursued before the Iust of Assise or other the kings Iustices whatsoeuer they be by due inquiry therof to be taken the same feoffements and discontinuances may be duly proued to be made for maintenance as is aforesaid that then such feoffements or other discontinuances so as before made shall be void St. 4. H. 4. 8. holdē for none And by the stat made an 4. H. 4. it was established That if any man great or small of what estate or condition they be Lands forcibly gotten by maintenance make any forcible entry in his own right or to his own vse or in anothers right to his vse by the way of maintenāce therof is attained at the suit of the party grieued he shal be one yere imprisoned pay to the partie grieued his double dammages And also he shall answer to the partie grieued damages for his goods cattels if vpon the said forcible disseisin he tooke away any 16 As by the before mentioned stat maintenance champerty What maintenance is punishable and what iustifiable embracerie buying of titles be in generall termes deciphered together with their seuerall penalties so haue the learned Iudges Sages of the law expounded the particular branches of euery of those stat as they grew in question were prosecuted in suit before them also resolued what maintenance is punishable and what iustifiable who may pursue an action writ bill or information c. of maintenance champerty c. against whom the same is to be brought for what offēce or cause the same is maintenable what pleas are to be pleaded to the writ or in bar of the said actions writs informations c. what iudgemēt shall ensue thereupon As euerie champertie is an vnlawful maintenāce prohibited by the foresaid stat of West 1. West 2. 9. H. 6. 64. St. 28. E. 1. 11. and punishable according to the before rehearsed stat of An. 28. E. 1. and euerie chāpertie is a maintenance the partie grieued may haue aswel a writ of Maintenance as of Champertie for by that meanes the champertor hauing bargained to haue part of the land or thing in question doth ofttimes moue further the suit suborneth witnesses corrupteth the Iurie and so subuerteth iustice but there must be a suit depending before it can be adiudged maintenance in any sort for if one man wil giue money to another to beginne and prosecute a suit against a third person 3. H. 6. 55. 8. H. 5. 8. 10. Ed. 4. 19. 30. Ed. 3. 3. this is no maintenance for that this mony was giuen when there was no suit depending and if there be a writ brought and neuer returned it is no maintenance No maintenance in a Iuror for giuing his verdict 17 If there be a suit depending betwéene two and they do ioyne an issue 18. E. 4. 2. 28. H. 6. 6. which is tried by xij men found for the plaintife in this case the defendant cannot haue an action of maintenance against the said Iurors or any of them for this verdit giuē for that they gaue their verdit according to their euidence and their knowledge of the truth of the matter and besides they did not thrust thēselues into that cause but were compelled to appeare by an ordinarie course of law being impanelled returned by the Sherife or some other lawfull officer Maintenance by a Iuror suing for iudgement but if after the verdit giuen any of the Iurie wil solicit or labor to the Iudge or Iudges of the court where the said suit
is depending to giue iudgement for the plaintife then the def may haue an action of Maintenance against him for that the same iudgemēt is a thing wholly belonging to the office of a Iudge and not of a Iuror therfore he doth therin intermeddle with another mans office and another mans cause more than he hath to do or may iustifie and so hath committed vnlawfull maintenance Maintenance in a Iuror 18 If a Iurie be charged to inquire of a matter in issue 17. E. 4. 5. 18. Ed. 4. 4. one Iuror may persuade his cōpanions or any of them to passe for the plaintife or def as he conceiueth the truth of the cause to be or as their euidence doth induce them this is no maintenance but if one of the Iurors will giue or promise money to another of his fellowes to giue his verdit for the pl. or def this is vnlawfull maintenance though he doth wage him to giue his verdit according to truth and right of the cause in issue Maintenance by speaking of words 19 If a man of great authoritie in a country will in the presence of a Iurie 22. H. 6. 5. 13. H. 4. 19. and the standers by at the tryall of an issue say openly that he will spend mony in the cause in question in the behalfe of the pl. or the def or that hee will giue money to labour the Iury or wil speake other great or high words in fauor of one of the parties this is vnlawful maintenāce in him though he do spend no mony in that cause nor doth labor the Iury therin for it may be that whē the Iury do by his words know his meaning they dare not in respect of his authoritie or greatnesse in that coūtie giue their verdit otherwise thā he would haue them None shall sit with the Iust of Assise on the bench And for the preuention of that kind of maintenance by a stat made An. 20. R. 2. it was ordained That no Lord or other of the country great or small St. 20. R. 2. 13. shall sit vpon the bench with the Iust of Assise in their Sessions in any of the Shires of England vpon paine of a great forfeiture to the King neither the Iustices shall suffer the contrarie to bée done Maintenance in comming to the barre with one of the parties And in like sort if a man of great authoritie in the Countie where an Issue is to be tried hauing nothing to doe in that cause doth come to the barre with the plaintife or defendant 22. H. 6. 6. that is one of the parties to an Issue that is then to bée tryed and standeth by him this is an vnlawfull maintenance in him though hée neither doth nor yet speaketh any thing in the matter for his presence and companie with the one partie doth shew to the Iurie his particular affection to the same partie and doth ofttimes induce them to fauour as much as labour and persuasion by words could doe And though the Iurie doe not respect him but giue their verdict for the other partie to that suit according to their euidence and the truth of the cause in question yet he hath done what in him lyeth to the contrarie 21. H. 6. 15. 22. H. 6. 5. 28. H. 6. 7. Dyer fo 95. 20 And so it is if two be in suit and do ioyne in issue Maintenance by giuing of money to labour a Iurie and the Master of one of the parties to that issue or any other will deliuer money of his owne to a stranger to labour the Iurie impanelled to try that issue to giue their verdit for his said seruant or friend this is maintenance vnlawfull in the Master or other though the partie to whom the money was giuen did neuer deliuer it to the Iurie nor did not labour vnto them in such sort as hée was directed or though the Iurie did giue their verdict against his said seruant for when the Master had deliuered the money to the stranger and told him to what purpose he should vse it he had done as much as he could do in that suit to hinder the course of iustice though his direction tooke no successe according to his desire And also it is vnlawfull maintenance if one giue money to a man that is impanelled of a Iurie to giue his verdict on the one side though that partie impanelled doth not appeare or do appeare and is drawne out by challenge or otherwise 22. H. 6. 6. And it is maintenance vnlawfull if one do threaten to kill or beat a Iuror if he do not giue his verdict for the one part to that issue which hee doth name though the same Iuror do otherwise 28. H. 6. 6. 21 If a Iurie do come to a mans house What is maintenance in a witnesse and what not and desire him to informe them of the truth of a matter whereof they do doubt and he doth informe them therof this is iustifiable But if one do come to a Iurie or of himselfe do labour to informe them of the truth of a cause in question this is maintenance vnlawfull and therefore punishable And so it is if the Court be informed by the plaintife or defendant when an issue is to be tryed that there is a man at the bar or in that place who doth know the truth of the matter in issue and doth desire that the same man may be examined by the Court to testifie the truth of that cause in question to the Iurie and the Court doth cause him to be called to testifie his knowledge therein and he at the commaundement of the Court deliuereth that which he doth know in that matter this is maintenance iustifiable But if the same partie will come to the barre of his owne head and testifie for the plaintife or the defendant this is vnlawfull maintenance and hée may be punished therefore 22. H. 6. 6. 22 If one man do labour to indict another by force whereof he is indicted Maintenance by procuring of an indictment in this case hee that is indicted may haue a writ of Maintenance against the procurer of that indictment and yet this is no quarrell but it is a taking of a part St. 1. E. 3. 14. and so prohibited by the stat of anno 1. E. 3. and it is in the nature of an action betwéene the King and the partie indicted and the foresaid statute is generall that it shall not be lawfull to any person great or smal to maintain quarels or to take parts to the let or disturbance of the Common law What is maintenance in a mainpernor 23 If a man be arrested indicted or sued 34. H. 6. 25. 14. H. 6. 6. 18. E. 4. 12. so that he is compelled to become bound with mainpernors for his apparance the mainpernor may come into the Court and sée the apparance of the same partie recorded and iustifie the
officers requisit to be had for the spéed of the said suits which shall do their dueties without any rewards for their counsels helpe and businesse in the same And the same law and order shal be obserued in all such suits to be made before the K. Iustices of his Common pleas Barons of his Exchequer and all other Iust in Courts of Record where any such suits shal be 30 As Maintenance in the cases aforesaid is lawfull and iustifiable Maintenance in respect of kindred or alliance in respect of the parties priuat profit or interest in the thing in question or when it is done without malice or hope of profit vpon a charitable disposition so is it in diuers cases allowable in regard of the linke or bond of nature whereby one person is by loue or dutie tied to another 34. H. 6. 26. 6. Ed. 3. 33. as the father may maintaine his son and heire and giue money of his owne in defence of him or his title or suit for he is bound to find him but so he may not doe for another kinsman And the sonne may maintaine the father and mother and one brother another and one néere kinsman another 21. H. 6. 16. 14. H. 7. 2. 20. H. 6. 1. 19. Ed. 4. 3. 21. H. 6. 16. and one ally another in some cases and in some sort as if a man be impleaded another that is his brother or kinsmā or of his alliance may go to the bar with him stand by him comfort him or he may ride to his counsell with him or he may request a man that is learned in the law to bée of counsell with him in that cause 9. Ed. 4. 32. but he must not retaine that learned man nor giue him any mony of his own to be of counsel neither must he giue or promise money to the Iurors or any of them to giue their verdict for him for then it is vnlawfull maintenance in him so it is in a stranger who hath nothing to do in that cause if he doe goe to the barre with him that is impleaded or do stand by him of purpose for to countenance the cause in question or doe request a learned man in the law to bée of counsell with him or doe giue money to any of the Iurors for their verdict this is vnlawfull Maintenance in him And in the cases aforesayd and all other cases of Maintenance Vnlawfull maintenance is continuall this vnlawfull Maintenance is a continuall Maintenance during that suit vnlesse the partie grieued doe in the meane time release the same But if the same Maintenance bee in respect of alliance and that hee who is supposed to bee the maintainor hath maried the daughter sister néece or other kinswoman of one of the parties to the first suit wherein the maintenance was supposed be he must pleade 6. Ed. 4. that his wife was liuing at the time of the maintenance supposed to be for if she were then dead the alliance betwéene them is dissolued and then he had no cause to maintaine that suit but shal be punished as a stranger And yet in that case 14. H. 7. 2. if the same woman hath any issue of her bodie begotten who may inherit the land of him whose suit that husband of the deceased woman and the father of that issue did maintaine then is the maintenance lawfull in any action brought against the same partie in respect of the kindred and also of the benefit that may come to his owne issue And in a writ of maintenance it is a good plea for the defendant to plead Maintenance in respect of gossiprie that hee was gossip to him whose cause he was supposed to maintaine 6. Ed. 4. 5. for that gossiprie is in law adiudged a kind of affinitie Maintenance in respect the partie could not speake English 31 A. brought a writ of Maintenance against B. and supposed 34. H. 6. 26. 15. H. 7. 2. that the same B. did maintaine L. in an action which he brought against the said L. on the part of the said L. Whereunto the sayd B. pleaded that the same L. was a Dutchman borne out of the Kings obedience and could not speake the English or Latine tongue and therefore being acquainted with B. the defendant who could speake the Dutch tongue he desired him to bring him to some man learned in the law to be of his counsell in that suit and to informe that learned man of the truth of his cause in question whereupon hee brought him to one M. a man learned in the law and opened the truth of his case vnto the said M. as he receiued it from the said L. in Dutch which is the same maintenance And this was adiudged a good plea in barre and a lawfull maintenance for it is a déed of charitie to aid and helpe him who could not helpe himselfe And the Dutchman had no meanes to helpe himselfe being a straunger borne and not vnderstanding the English nor Latine tongue but by the assistance and information of some English man Maintenance in a professor of the Law 32 If a Serieant at law an Apprentice or other Councellor 6. Ed. 4. 5. being retained for his fee doe giue vnto his Client the best counsell that he can for the recouerie or defence of the suit which he vndertaketh according to the ordinarie course of the law or doth enforce the euidence at the barre so much as he can at the tryall of his clients cause this is lawfull maintenance and iustifiable But if he doe pay or promise money to any of the Iurie to giue his verdict for his client or do threaten any of them to be killed beaten 22. H. 6. 6. or otherwise euill intreated if they do giue their verdit against his client or if he do spēd 11. H. 6. 13. or do offer to spend his own mony in defence of his clients cause this is vnlawful mainnance and punishable according to the before rehearsed stat of ann 1. R. 2. for those things he doth not as a lawyer or according to the course of the law nor by the warrant of law but by iniustice and vpon his owne corruption and wrong But in the first specified case if a man that is not learned in the law 22. H. 6. 5 hauing himselfe no interest in the cause in question will declare to the Iurie or to the partie or to his counsell the cause in question and the circumstances thereof as a man learned in the law this is vnlawfull Maintenance in him though hee doe it as well as a man learned in the law for hee doeth it vpon Maintenance where the learned man doeth it for his fee. And so it is if a man that hath land in suit or question will bring and shew his euidences and writings to a Nobleman Fitz. Maint 21. Gentleman or other man of countenance that is not learned in the law and
request his opinion of them whether they will serue to defend his title in the cause in suit and the partie doth affirme them to be good and sufficient in law to iustifie and maintaine his cause this is vnlawfull maintenance in that person who giueth this counsell for by this meanes the partie may be encouraged to prosecute or defend a suit which the law will not warrant him to effect Co. li. 1. 177 And if L. being a man that is not learned in the law will publish that B. hath good right and title to the Mannor of D. wheras in truth B. hath no good right title thereunto but C. hath the onely right title to the same in this case because L. hath taken vpon him the knowledge of the law and intermedled in a matter wherin he hath nothing to do C. may haue an action vpon the case against the said L. for slandering of his title and shall recouer his damages against him and his ignorance of the law will not excuse him 33 In an Action of Maintenance the plaintife declared Maintenance by an Atturney That the defendant maintained one B. in the court of L. in an action of Couenant 36. H. 6. 37. which the plaintife brought against the said B. in the same court Whereunto the defendant pleaded That he was retained to be the Atturney of the same B. in the said suit which the plaintife did prosecute against him by force wherof he came to a man learned in the law by the commandement of the said B. his client and desired him to be of counsel with the said B. and gaue him his fée of the money of the said B. the which is the same maintenance And this was adiudged maintenance iustifiable for when an expert and learned man is Atturney for another he is to do all lawfull things which he can touching that suit for the benefit of his client with the priuitie or direction of his client as in retaining of learned counsell suing forth of originall or iudiciall proces procuring a Iurie to be impanelled Kel fol. 50 13. H. 4. 19. and returned by the Sherife by obtaining a Supersedeas for his client when cause doth require it and he may giue euidence to the Iury vpon the tryall of his clients cause and also he may request any of the Iurors impanelled for the triall of the said cause to appeare for the spéedy end of the said suit 34. H. 6. 26. But neither the same Attourney who is retained for that only cause nor a generall Attourney that is constituted by any person in al his causes according to the stat of West 2. St. 13. E. 1. 10. may do any vnlawfull thing in his clients behalfe as to giue or promise money or other reward of his owne or his clients to a Iuror 11. H. 6. 10. to giue his verdict for his client or to threaten him if hée doe otherwise or to defend or offer to defend his clients cause at his owne charges or to procure the Sherife to returne a Iurie at his denomination for the tryal of his clients cause for in all these cases last specified the maintenance is vnlawfull and punishable for he cannot do them as an Attourney but as a straunger a maintainor and of his owne wrong And if a man do maintaine a suit by an Atturney 22. H. 6. 24. an action of Maintenance doth lye against the Master Maintenance in a Sherife or his bailifes And if the Sherife of any Countie his Vndersherife or any Bailife do any of the things aforesaid 13. H. 4. 19. in any suit prosecuted betwéene partie and partie other than impanell a Iury and summon them to appeare at a day time prefixed by the kings writ it is vnlawfull maintenance in him 22. H. 6. 35. 34 In an action of Maintenance the defendant pleaded Maintenance in respect of neighborhood That he whō it is supposed that he maintained is his neighbour and that hee came vnto him and told him that the plaintife had procured a Capias to arrest him therefore praied the defendant to giue him counsell what he were best to doe and hée this defendant aduised his said neighbour to goe to London and to yéeld his bodie to the Iustices and to procure a Supersedeas which is the same maintenance whereupon the action is brought And this was adiudged no vnlawfull maintenance but a neighbourly and friendly counsell which euerie person may giue to another For if a husbandman or any other doe come to his neighbour and tell him that a stranger doth owe him money or doth detaine his goods from him and request his counsell that neighbour may aduise him to bring an action of Debt or Detinue against the same straunger 12. Ed. 4. 14. 19. Ed. 4. 3. Or if one neighbour shall tell another that hée hath a cause to put in suit and desire that hee will instruct him what learned man in the law he doth know to whom he may repaire for counsell his neighbour may informe him of such one as hee taketh to bee learned and also may goe with him to that learned man and bee present when he doth retaine him of his counsell and open his case vnto him and also hee being a meane man and of small countenance or authoritie in the countrey may goe to the barre and stand by him at the tryall of his cause in question but if that neighbour shall giue any money to the counsellor to be retained with his neighbour or shall giue any money or other reward to the Sherife or Vndersherife or to any Bailife to arrest the other partie in his neighbours behalfe or to answer his suit then is it vnlawfull maintenance in him and hee is by action of Maintenance to bee punished therefore Where the master may maintaine his seruant 35 In an action of Maintenance brought by A. against B. the plaintife declared 31. H. 6. 8. that where he brought another action before against C. the said defendant did maintaine the same C. in the same first action whereunto B. the defendant pleaded That the same C. is his seruant retained in his seruice for one whole yeare and therefore he retained one M. an Apprentice of the law to be of counsell with the said C. his seruant and paid the said M. his fee with part of the wages due to the said C. which was the same maintenance and this was adiudged a good plea in barre and lawfull maintenance 22. H. 6. 35. 9. H. 6. 64. 28. H. 6. 12. 19. Ed. 4. 3. 19. H. 6. 30. for it is lawfull for the Master to request a man that is learned in the law to be of counsel with his seruant in his suit and to pay the same counsellor his fée with part of the wages of his said seruant and to goe with his seruant to the barre at the tryall of his cause in question which the
for without the glasse it is not a perfect house The same Law is of Wainscot whether it bée affixed to the house by the lessor or by the lessée or whether it bée fastened by great nayles or small nayles or by screwes or yrons put through the postes or wals or by any other meanes yet if it bée taken away it is Wast and the Tenant of the house shall bée punished for it by action of Wast for it is made parcell of the house as séeling and plastering of a house is For the sayd Furnace Bench Table Doore Glasse 20. H. 7. 13. 21. H. 7. 26. and Wainscot are made parcell of the inheritance of the house as the Wals Beames and Transomes bee and they shall discend to the heire of the house and not accrue to the executors Neither shall they bée forfeited by Vtlarie nor attached in an Assise as Chattels may But if in any of the cases aforesaid the Tenant doe repaire the house or thing wasted 20. E 3. Wast 32. 22. H. 6. 58. 28. H. 6. 2. 38. Ass p. 1 42. Ed. 3. 22. and make it so long so broad so high and in such and so good sort as it was when his estate did begin before any action of Wast shall bée brought against him therefore then no action of Wast is maintenable against him for that cause Notwithstanding if any house wall couered or c. were ruinous at the time of the beginning of the Tenants estate 22 H. 6. 18 21. Ed. 4. 39. and after the Tenant doe pull it downe and build it againe though it bée not so large as it was before yet is it no Wast neither is the Tenant punishable therefore by an action of Wast for that he had not béen punishable therefore if hée had suffered it wholly to decay and not haue builded againe any part thereof If Wast bée committed in seuerall principall parts of a house 4. Ed. 3. 32. 8. Ed 2. Wast 112. 12 Ed. 3. Wast 108. 127. he in the reuersion or remainder thereof may by an action of Wast recouer the whole house for this dispersed Wast As in like case if Timber Trées of Oake Ash or Elme bée felled in seuerall parts of a Wood or Close hée in the reuersion or remainder may by an action of Wast recouer against the Tenant the whole Wood or Close for this dispersed Wast To procéede according to the wordes of the Writ with Wast in Woods Wast in woods If the Lessée for yeares Lessée for life Tenant in Dower Plo. Com. 470. 3. E. 6. Dyer 65. 7. H. 6. 40 21. H. 6. 46 14. H. 4. 12. or c. doe sell or fell Oakes Ashes or Elmes béeing of twenty yeares growth and aboue the value of thrée shillings foure pence this is Wast and punishable by an Action of Wast For those Trées of that age will endure long bée méete for Building and bée parcell of the inheritance of him in the reuersion or remainder 27. H. 6. Wast 8. 29. H. 8. Dyer 36. Co. li. 4. 64 and notwithstanding the said lease or any other particular estate for life assured the same trees be the leassors and not the leassees though the leassor cannot fell them or graunt or sell them to any other without consent of the tenant for that the said tenant hath the loppe and maste of them and shade for his cattell And likewise if the boughes or braunches of any of the same trées beeing of the said age of twentie yeares bée cut downe by the tenant the same is also wast for they in like sort may serue for building But if a house with certaine ground be assured to a tenant for terme of yeares life or c. whereupon Oake 7. H. 6. 40. 41. Ed. 3. Wast 82. Ash or Elme aboue twentie yeares of age be growing if the same house doe fall in decay during the said terme the said tenant of his owne authoritie without the assignement of the Leassor may fell sufficient of the said Oake Ashe or Elme to repaire the same house for the Law hath ordained that one commoditie or parcell of the farme demised shall help to maintaine the other And so the tenant if hee will may fell timber to repaire the house though the same were in decay at the time of his entrie Notwithstanding 12. H. 8. 1. 7. H. 6. 40. 29. H. 8. Dyer 36. 49. E. 3. 1. 42. Ed. 3. 22. 11. H. 4. 31. 9. H. 4. Wast 59. 9. H. 6. 66. if hee bée so disposed hee may permit the same house which he so found in decay to bee vtterly ruinated and fall downe for hée need not keepe the house in other repaire than he receiued it But if the tenant doe giue or sell any timber or fell more for any of the vses aforesaid than is necessarie and sufficient or doe fell any timber to build a newe house where there was none vpon the ground before then he may bee punished therefore by an Action of wast And the same Law is of a Copieholder who can fell no timber but to repaire his houses which hee holdeth by copie of Court Roll. The felling of Maples Sallowes Willowes Hornebeams Crabtrees 46. E. 3. 17. Hasils Thornes or such like is no wast for that they will not continue long nor serue for building And therefore they are accounted seasonable wood and are lawfully to bée felled by the termor and to bée spent vpon the same ground for house-bot 12. H. 8. 1. plough-bot hedge-bot fold-bote or fire-bote which the Law doth allowe to the termor for yeares or life And the tenant may fell Oakes Ashes or Elmes for any of the purposes aforesaid 21. H. 6. 46. if there be no vnderwood growing vpon the same ground to be imployed to those vses By the custome of some countrie where wood is plentifull Oakes Ashes and Elmes vnder twentie yeares groweth be called vnderwood 11. H. 6. 1. Lib. Intr. 617. or seasonable wood and may be felled by the termor for any of the vses aforesaid and so may wrangles aboue twentie years growth which are neuer like to prooue timber or méete for building but in some other countries where wood is scant it is otherwise Felling of seasonable wood 40. E. 3. 25. Fitz. N.B. 59. which is vsed to bée cut euery seauen tenne fiftéene or twenty yeares is no wast Neither is it wast for the tenant to fell and take dotards or to take windfalles wherein there is no timber for they bee the tenants to vse and spend as is aforesaid 7. H 6. 40. Co li. 4. 64. Fit N.B. 59 29. Ed. 3. 33. But windfalles wherein there is any timber bée the Leassors And so is the timber of a house which doth decay and fall downe during the terme the Leassors vnlesse the tenant will reedifie the same house and imploy the said timber in the building thereof againe Though the felling of Willowes or other such like
of him that was first menaced then assaulted Menacing beginneth the quarrell assaulting doth increase it battery accōplisheth it menacing laieth togither fire coales in the house of peace assault bloweth it maketh it burn And battery doth endeuor to consume the whole building to the ground And therfore because some sorts of menacing assaulting battery be professed enemies to the peace wherof I do write I will endeuor plainly to expres which be those menaces c. that the law doth inhibit in what sort by what means she doth restrain punish the offēdors therein 3 The law hath alwayes had that speciall regard to the preseruation of the peace of the Realme and of euerie member thereof that she could not endure neither would suffer one person so much as to menace or threaten another of life or member or of any thing tending to the breach of the peace And therfore she hath not only assigned in all countries places of this realm Sherifes Iustices of peace Constables Thirdboroughs and diuers other officers to be as watchmen continually attending bending their cares industries to preserue the peace and to defend each person from the violent sting of menace assault or batterie but also she hath giuen and prouided for him who is only menaced 40. E. 3. 40. an action of Trespas as she hath done for him who is assaulted or beaten wherby he shall recouer his damages so that the same menacing do tend to the hurt of him who was menaced his seruant tenāt or any other person by whom he liueth or receiueth benefit And therefore the plaintife in an action of Trespas of menace may declare That he is an Atturney The declaration in Trespasse of Menace and that in respect of the defendants menace he durst not attend his clients suites from such a day in M. vntill such a day in O. or that he is a husbandman and could not attend or ouersée his husbandrie or that he is a bailife or collector of rents and could not in respect of such menace 37. H. 6. 3. by the space of many monethes attend his bailiwick collection of rents or other businesses or that in regard of such menacing 30. Ass p. 14. he was not able nor durst trauell abroad to apply his trade or get his liuing without such force and defence as his estate was not able to maintaine As the collector of a fiftéene brought an action of trespas for the king and himselfe 27. Ass p. 14. against one and declared That the defendant did so rebuke him Rebuke in Assault that he durst not tarie in the towne to gather vp the fiftéene for feare least the defendant would haue beaten him And though the defendant did not beat him yet this rebuke was adiudged an assault and the plaintife recouered an C. s̄ in damages And in like sort one brought a bill of trespas in the Cōmon pleas for the king and himselfe 30. Ass p. 14. and declared That whereas hee was comming towards the Commō pleas to answer in a plea of land the defendant came and did so beat assault and menace him that hee durst not bring his writings or come thither without great charges in contempt of the king contrarie to his peace to the damages of the plaintife c. Whereunto the defendant pleaded not guiltie And the defendant was compelled to find pledges of his good behauior for the peace that he should not meddle with the plaintife by himself nor by any others Fitz. Trespas 159. openly nor secretly In an action of Trespas the plaintif declared That the defendant so menaced him in one county that he could not do his businesse in another county and this was adiudged a good declaration and it was ordered 37. H. 6. 2. that the issue shold be tried in the county where the menace was for there was al the trespas cōmitted the other county was put in only to increase the damages Li. Intr. 592 22. Ass p. 76. 20. H. 7. 5. 4 And in like sort if one man do menace or threaten the seruant of another Menacing a seruant whereby he departeth of life or member in such sort as the same seruant doth depart frō his master wherby the master doth for a time lose the seruice of his said seruant in this case the master shal haue an action of trespas declare against him that did so menace his seruant That he made assault vpon his seruant did beat him wound him and euil intreat him so often menaced to kill dismēber him did him so many iniuries wrongs that his said seruant durst not for such menaces for feare of being killed or maimed attend his businesse viz. the bailiwike of his husbādry his seruice in husbādry or kéeping of his horses beasts shéep c. And so his said busines seruice lay vndone the said pl. lost the seruice of his said seruāt frō the 20. day of M. vntil the 20. day of N. thē next following to his great damage against the K. peace whereof he cōplaineth that he is endamaged 20. l. And so note 7. E. 4. 24. 27. Ass p. 11. that a man shall not haue an Action of Trespasse for menace onely vnlesse he hath also thereby some other losse or hurt for the menace and the hurt which the partie doth sustaine thereby doe make the Trespasse and doe giue cause of the action of Trespasse But it is otherwise 20. H. 7. 5. if a man beat the wife or villaine of another for in those cases the partie wronged viz. the husband or Lord shall haue an action of Trespasse though hée hath receiued no losse nor hindrance in commoditie For hée must ioyne in suit with his wife to recouer recompence for the batterie and wrong done vnto her by the trespassor and also hee may punish him by action of Trespasse who beateth his villaine as hée may doe him who beateth his horse cow oxe c. Menacing a tenant whereby he departeth 5 And the same law is if one man doe so menace of life and member Li. Intr. 592 20. H. 7. 5. 9. H. 7. 7. the tenants of another which doe hold of him certaine lands and tenements at will paying to him therefore certaine yearely rent and seruices in respect of which menace the same tenants doe depart from their said tenements and leaue the said rents vnpaid and the same seruices vndone In this case the Lord or owner of the same tenements may haue an action of Trespas against such menacer in the Kings Bench or Common Pleas and declare of the sayd menacing of his tenants at will of their departure from his tenancies thereby and the losse and preiudice that he hath sustained by his rents vnpaid and seruices vndone and he shal recouer damages accordingly And in this case it is a good plea for the defendant Menacing
for an assault made to the wife 22. Ass p. 60 the husband the wife shal haue an action of Trespas against him that made the assault 46. Ed. 3. 6. the declaration shal be ad damnuÌ„ ipsorum though the husband only shall recouer the damages 12 But as he that is assaulted or beaten Iustifying of beating in his owne defence shal haue his remedie by action of Trespas against him that did assault or beat him also the K. shall haue a fine therefore if he that made the assault or battery did it without cause offered therein iniurie to the party assaulted 16. Ed. 4. 11. 19. H. 6. 47. 6. H. 7. 1. 34. H. 6. 15. 43. Ed. 3. 23. because the kings peace is broken one member of the coÌ„mon weale hath abused done wrong to an other So on the other side if he that was so assaulted or beaten did first make an assault vpon him that after did beat him would haue beaten wounded or c. and in his said assault did receiue from the other some stripes or blowes the def may iustifie his said assault batterie as a thing done in defence of his owne person from imminent present perill wherin the Law will protect defend him And therfore in that case the def doth answer the pl declaration pledeth in bar that the pl did assault him would haue beaten him he defended himself the hurt which the pl receiued was by his own assault And the pl in his replication doth plead that the defendant did with force armes of his owne wrong make assault vpon him beate him euill intreate him contrary to the Kings peace without any such cause as the defendant hath alledged And so the issue is ioined whether the assault was begun and made by the plaintife vpon the defendant or by the defendant vpon the plaintife for if the assault batterie 38. Ed. 3. 6. or assault only was first made and begun by the defendant vpon the plaintife Then the defendant did it with force armes and against the kings peace is to answere damages to the plaintife according to the hurt which he receiued to pay a fine to the K. for vsing force violence breaking his peace for at all times in an action of Trespas vi armis brought against any person 19. H. 6. 8. if the defendant be conuict he shall pay a fine to the King 8. Ed. 4. 15. But if the plaintife made the first assault and the defendant in his own defence rather then he would be beaten or wounded did beate strike or wound the plaintife Then the plaintife shall recouer no dammages against the defendant but shal be amerced to the King for his false suit Neither shall the defendant be charged to pay to the king any fine And if one man wil assault offer to beate two thrée 12. Ed. 4. 6. or more persons they in their own defence doe beate or wound him he shall haue no action of Trespas or other remedie against them one of them may defend helpe the other But it is to be obserued in this case that if one man doe assault an other if he which is assaulted may escape with his life 2 H. 4. 8. 33. H. 6. 18. or without being wounded or maihemed it is not lawfull for him to beate or wound the other who made the assault 13 As the law doth accompt it no breach of the peace for one man to beate an other in the defence of his own person from killing Iustifying of beating in defence of others wounding or beating but a thing iustifiable So doth she impute it no fault punishable for the husband to beate him that doth assault would beate wound 19. H. 6. 31. 66. Lib. intur 553. or euil intreate his wife being both one flesh or for the wife to beate him that doth assault and would beate wound or euil intreate her husband Or for the sonne or daughter to beate him that doth assault would beate wound or euil intreate his or her father or mother Or for the father or mother to beat him that doth assault Lib. intur 554 would beate wound or euil intreat his or her sonne or daughter being then within age not able to defend him or her selfe Or for the Lord to beate him that doth assault would beate wound or euil intreat his villaine Or for the seruant to beate him that doth assault would beate wound 35. H. 6. 51. 11. H. 6. 19. 12. Ed. 4. 6. or euill intreate his master or mistris or to take any weapons wherewith the assailant would beate wound or euil intreat his master to kéepe them vntil his rage be swaged for the seruant is bound to performe vnto his master mistris protection dutie he may kill a man in defence of his master if his said master cannot otherwise escape But the seruant cannot iustifie the beating of him 21. H. 8. 39. that doth assault attempteth to beate wound or euil intreate the father mother brother sister son 9. Ed. 4. 48. or daughter of his master or mistris for he oweth no obedience or duty to any of them Neither can the master iustify the beating of him that doth assault would beat wound or euill intreat his seruant Fitz. Iustification 3. 19. H. 6. 30. 66. But though the master cannot assault beat an other that doth assault would beate wound or otherwise euill intreat his seruant Yet he may with a sword staffe or other weapon aide defend his seruant assaulted from being beaten that in respect of the losse of his seruice And also after his seruaÌ„t is beaten 22. H. 6. 43. 21. H. 6. 9. Fitz. Trespas 46. 20. H. 7. 5. Cook lib. 5. 108. he may haue an actioÌ„ of Trespas against him that did beat wound or euil intreat his said seruaÌ„t vnles it were vpon the same seruants own assault recouer so much in damages against the offeÌ„dor The masters remedy for the beaâ—ing of his seruant as he receiued preiudice or hinderance by the losse of his said seruants seruice for if the seruant be but so beaten that he is able to do his seruice as well as he was before the master shall recouer no damages for that beating And as the master may haue an action of trespas against the offendor recouer so much in damages as he doth loose by the want of his said seruants seruice so likewise the same seruaÌ„t may haue another action of trespas against the offendor recouer so much in damages as he shall receiue hurt on his bodie Fitz Trespas 210. 21. H. 6. 8. 3. H. 6. 54. 34. H. 6. 28. 43. by the said assault beating In an action of trespas brought by the master for beating of his seruant wherby he
County that he will so that he dwell within a conuenient distance and not too farre from the parties owne habitation But if a Supplicauit of the peace be directed to the Iustices of the peace the Iustice to whom the writ is first deliuered shall only make the precept to apprehend the partie to find suerty of the peace and that precept shall be retornable before him only and he only shall take the suerties and only make the retorne without the others Co. lib. 5. 59 And a Iustice of peace may if he will make a warrant to the Constable to bring the partie before himselfe 5. Ed. 4. 12. 76 If a Iustice of peace doe direct his warrant to the Constable A warrant to find suertie to keepe the peace or some other to cause A.B. to finde suerties to kéepe the peace The same Constable or c. must first require the same A.B. to find suerties to kéepe the peace and if he doe refuse it then he may arrest the same A. B. for if A. B. will finde suerties then the said Constable may not arrest him because the purport of the precept is performed which is if he refuse so to doe that then he shall conuey him to the Gaole And if the Constable shall arrest A. B. after that he hath found suerties according to the precept the same A. B. may haue an action of false imprisonment against him for that he hath arrested and imprisoned him without warrant or cause And likewise if the Constable do arrest A. B. and doe not carrie him before some Iustice of peace 5. E. 4. 6. to find suerties to kéepe the peace or if he resist or refuse so to doe then if he doe not carrie him to the Gaole A.B. may haue an Action of false Imprisonment against the Constable The partie must offer his suerties And when the partie commeth to the Iustice of peace by force of a warrant he must offer suerties to the Iust of P. or else he may commit him to prison 14. H. 7. 5. for the Iust néedeth not to demaund suertie of him Suerty of the peace dieth with the king 77 The suertie of peace is discharged by the kings death 1. H. 7. 1. for the band is to obserue the peace of the King and when he is dead it is not his peace So doth the death of the recognisor so doth also the death of him at whose suit it was taken discharge the suertie of the peace if in those cases it were not forfeited before The Iustices authoritie dieth with the King And in like sort when the King by his commission doth appoint Iustices of peace and after dieth or giueth ouer his crowne the Authoritie of the same Iustices doth cease for he maketh them Iusticiarios suos and therefore when he dieth their authority endeth The suertie for the peace must be named 78 When a Iustice of peace doth take suerties for the peace 2. H. 7. 4. it is not sufficient to say that I. N. hath found sufficient suertie for the peace without naming the names of the suerties but he must name their names and surnames He that is vound to the peace must appeare c. 79 If a man doe finde suerties to kéepe the peace 39. H. 6. 26. and hath day vntill a time prefixed he must appeare the same day although he who demaunded the peace doe not appeare or otherwise he shall forfeit his band But it is otherwise where a suit is betwéene party and party and the defendant being taken by a Capias is bound to appeare vpon a day appoynted 80 When the suertie of peace is graunted against a man by a Iustice of peace he will sometime rather desire to be bound to the peace by an other Iustice then by him that graunted the same and made the warrant And therefore he may offer himselfe to become bound to the peace to some other Iustice of peace of that County if he will A Supersedeas for the peace then procure a Supersedeas from that other Iustice before whom he is bound to all other Iustices of that Countie to be discharged of any other arrest to be made of him for the law doth not require that he should be seuerall times bound for one cause And this Supersedeas is sufficient although it neither name the suertie nor contein the summes wherin they are bound but yet it is a better forme to expresse them both as the Chauncerie and Kings Bench doe And when a man doth heare of such a precept awarded or granted against him by a Iust of peace of the County where he dwelleth he may go eyther giue suertie of the peace in the K. Bench or els in the Chancery thereupon may procure a Supersedeas from the court where he is bound to restrain the Iust of peace of the County to take any suertie of peace of him And then the Iustices of peace of that County must forbeare to make any warrant for the peace against the partie and if any of them haue awarded it A precept awarded by force of a Supplicauit he must make a Supersedias to discharge it But a Iust of peace of the county by a Supersedeas cannot discharge a precept that is awarded by his felow Iust by force of a Supplicauit directed to him out of the Chancery or the K. Bench to take the suertie of peace of one resident in that County If any officer hauing a warrant from a Iust of P. to arrest a man to find suerty of the peace shall receiue a Supersedeas out of the Chancery or the Kings Bench or from any Iustice of the Kings Bench or from any Iustice of peace of that County where he is commorant to discharge the same suerty of peace wil neuertheles vrge that partie against whom the same warrant is granted to find new suertie for the peace he may refuse to giue it And if the said officer will therupon vnder the color of his warrant commit him to prison the party imprisoned may haue an action of false impris against him for the the said warrrant is discharged by as great authoritie or greater as it was made and the thing for the which it was made is effected The forme of which Supersedeas graunted by a Iustice of the peace is this viz Thomas Denton Miles Buck. vnus Iusticiariorum dn̄i Regis nunc ad pacem in Comitatu p̄dicto conseruandum assignatur Vicecomiti comitatus praedicti A Supersedeas for the peace Nec non cibus singulis Balliuis Constabularijs ceterisque dicti dn̄i Regis ministris tam infra libertates quam extra in eodem Con̄i Salutē Quia A. B. de Poundon in com̄ praedict ' Laborer venit corā me in venit sufficientē securitatur qd'ipse comparebit ad proximā generalē Sessionē pacis in com̄ praedicto tenend ' Et quod ipse interim pacē dicti
21. H. 7. 39. As In what cases any pâ—rson may deâ—end himselfe and his by force if theeues or robbers do come to a mans house to rob or murther him he may defend his house by force and if he or his seruants do kill any of them they shall receiue no hurt thereby And if a man being in his house doe heare that another will come to his house to beat him he may lawfully assemble his neighbors and friends to assist and aid him in the defence of his person for his house is his castle and place of protection defence where he must dwell But if a man be threatened â—hat if he come to such a Market or Fayre or to such a place that then he shall be beaten in this case he may not assemble his neighbours and friends to go thither in safegard of his person for there is no necessitie that he should go thither seeing it would rather be a meane to seeke a quarrell then to eschew it but in that case he may take his remedy by surety of peace 16. Ed. 4. 17. 9. E. 4. 28. 19. H. 6. 31. 6. H. 7. 1. And if there be an atteÌ„pt made to maihem wound or beat a man his wife father mother or any of his children within age or to disseise him of his land or to dispossesse him of his goods or to disturbe him of his high way or to turne an ancient watercourse from his mill he may lawfully vse force to resist it 34 As the law hath prouided by the before rehearsed statute of 15. R. 2. St. 15. R. 2. 2. that wheÌ„ any forcible entry shal be made into any benefices or offices of the church a Iustice of peace shall take the power of the county and commit the offendors to the gaole So hath it further deuised that if there be debate betwéene two persons for one church and one of them doth enter into the church with a great power of lay men and holdeth out the other by force and armes then he which is holden out The writ of Vi laica remouenda to remoue force shall haue a writ of Vi laica remouenda directed to the Shirife commaunding him that he shal remoue the power which is within the church and the shirife shal be further commaunded that if he doe find any that doe resist he shall take with him the power of the county and attach the bodies of all the resisters and commit them to prison so that he may haue their bodies before the King at a certaine day to answer for their contempt Fitz. Na. B. 55. But by this writ the Shirife ought not to remoue the Incumbent who is in possession of the church be he in possession by right or wrong but only to remoue the force and to suffer the Incumbent to inioy his possession for if he do remoue the Incumbent the same Incumbent shall haue a writ to the Shirife to restore him to it againe Where force shal be remoued for the K. incumbent where not 35 If the King do bring a Quare impedit against the disturber and the Incumbent and the Kings title is found for him Br. force 20 whereupon his clarke is instituted by writ and after the first Incumbent doth enter by force great number of people and doth take the profits the Kings Incumbent shall not haue the Kings writ to the Shirife to remoue the force for that when the iudgemeÌ„t giuen by the court is executed the court hath no more power to deale in that cause But if the defendant had disturbed the Bishop to admit the Kings Incumbent then he should haue had such a writ ⧠Forgerie 1 HAuing vndertaken to write of the great and generall maladies of the Realme and the chiefe impediments of the iustice and peace of the kingdome I shall not farre digresse from my theame by treating of Forgerie Periury Maintenance Deceit Extortion and Oppression wherein though a man be not assaulted by the rapier and dagger pike-staffe or bilbow-blade as he is in a fray forcible entrie or riot yet a forged déed that conueyeth his land from him a false othe which depriueth him of his lease or vnlawfull mantenance that wresteth his credit or goods from him do longer disturbe the peace of his mind stick in his stomacke and infixeth a déeper and more durable impression of sorrow into his heart than a boxe on the eare a dust in the necke or a blow with a cudgell giuen on the sodaine will doe For the griefe of these later stripes is short and doe weare out of mans mind by little and little as his choller ceaseth and his hot bloud cooleth but the discontent and the wants which he receiueth of the former blowes doe continue with him and yéeld him most dislike when he is most patient and best aduised And therefore the wisedome of this Realme hath from age to age taken great care by lawes and statutes to represse them and to inflict vpon the offendors in euerie of them penalties correspondent to their deserts Our lawes doe chastise those that breake the peace by frayes assaults batteries riots or routs with imprisonment of their bodies vntill their hot blouds be cooled and their distemperat humors be qualified but they doe impose sharper and more durable punishments vpon such as doe forge déeds commit or procure periurie Forgerie periurie maintenance do ten 5 to the breach of the peace or bee maintainers of other mens suits or quarels accounting these last offences to tend more and for a longer time to the breach or blemish of the peace or hinderance of the iustice of the Realme than the former doe As hee that committeth forgerie in some cases shall bée set vpon the pillorie loose his eares haue his nostrels slit and pay to the partie grieued his double costs and dammages And in some other cases shall be hanged as a felon He that committeth periurie shall in some cases be one yeare imprisoned be set vpon the pillorie and neuer after be allowed as a witnesse And hee that maintaineth other mens suites shall in some cases be thrée yeres imprisoned and further punished at the kings pleasure And in some other cases sustaine other disgraces And therefore the preamble of the statute of anno 1. St. 1. H. 5. 3. H. 5. doth truely informe vs that forged déeds do trouble and change the lands of good people intending to be in peace And the statute of anno 32. St. 32. H. 8. 9 H. 8. doth teach vs that the suborning of witnesse for to maintain any matter or cause is to the disturbaÌ„ce or hinderance of iustice The enormity of Forgerie 2 The forging of false sealed Déeds Euidences or Writings or of Court Rols or of the will of any person or of any Obligation Bill obligatorie Release or other discharge or the pronouncing publishing or giuing in euidence of the same wherby any person shal be molested troubled charged
or defeated of his land lease annuitie debt accompt action suit or demaund is no lesse perillous and preiudiciall to the party thereby wronged if it be not discouered preuented or auoided then the wresting and euicting from him of the same land lease annuitie debt or demaund And the offendors therein do as iniuriously and with as small colour of iustice wrest from the party grieued his said land lease annuitie debt c. as the robber doth take a purse from the traueller by the way or the burglarer his intended prey from the houskéeper in the night And if those reall dueties or things in action were conuerted into things personall the vndue conueying of them in this vnlawfull manner would deserue to be accounted and punished amongst other felonies as in some sort it is ordained so to be by the statute of anno 5. Eliz. St. 5. El. 14. And because diuers persons did forge false déeds and miniments and did cause them to bée openly pronounced published and read to trouble change or vndoe the lands of other persons and to vndoe and troble the possessions and titles of the kings peope therefore by a statute made anno 1. H. 5. it was ordained St. 1. H. 5. 3. that the partie grieued thereby shall haue his suit in that case and recouer his dammages and the partie conuict shall make fine and ransome at the kings pleasure But forasmuch as the wicked and daungerous practise of making forging and publishing of false and vntrue déeds and writings was much more practised and put in vre in all the parts of this Realme than in times past it had béene to the disherison of diuers persons and the great subuersion of iustice which hath growne chiefely by that the paines and punishments limited for such great offences by the lawes and statutes of this Realme before time were so small and easie that such euill people were not afraid to enterprise the practising and doing of such offences The repeale of former statutes of Forgerie Therefore by a statute made anno 5. St. 5. El. 14. El. it was enacted That all other statutes before that time made and prouided for forger of false déeds charters miniments or writings and all and euerie penaltie appointed for the same should from the first day of Iune then next following be void Forging of a déed whereby anothers fréehold shal be troubled 3 To the intent that condigne or some sharper punishment might bée ordained for such as should bée offenders in that crime of forgerie than in time past had béene by the sayd statute of anno 5. Elizab. it was established St. 5. El. 14 That if any person or persons after the first day of Iune then next following vpon his or their owne head and imagination or by false conspiracie and fraud with others shall wittingly subtilly and falsly forge or make or subtilly cause or wittingly assent to bée forged or made any false déed charter or writing sealed court roll or the will of any person or persons in writing to the intent that the estate of Fréehold or inheritance of any person or persons of in or to any lands tenements or hereditaments fréehold or copihold or the the right title or interest of any person or persons of in or to the same or any of them shall or may bée molested troubled defeated recouered or charged Or shall pronounce Publishing of a forged déed publish or shew forth in euidence any such false and forged déed charter writing court roll or will as true knowing the same to bée false and forged as is aforesaid to the intent aboue remembred and shall bée thereof conuicted either vpon any action or actions of Forger of false deeds to bee founded vpon this statute at the suit of the partie grieued or otherwise according to the order and course of the lawes of this Raalme or vpon Bill or Information to be exhibited into the Court of Starre chamber according to the order and vse of the Court he shall pay vnto the partie grieued his double costs and dammages to bée found or assessed in the Court where such conuiction shall bée and also shall be set vpon the Pillorie in some open market towne or other open place and there to haue both his eares cut off and also his nostrels to be flit and cut and seared so as they may remaine for a perpetuall note or marke of his falshood and shall forfeit to the Queene her heires and successors the whole issues and profits of his lands and tenements during his life and shall suffer and haue perpetuall imprisonment during his life The same dammages and costs to bée recouered at the suit of the partie grieued as is aforesaid to be first paid and bee leuied of the goods and cattels of the offendors and of the issues and profits of the said landes tenements and hereditaments of such partie conuicted or of one or both of them the sayd title of the Queene her heires and successors to the same notwithstanding Stat. 5. El. 14 4 If any person or persons after the said first day of Iune next Forging a déed whereby a lease or annuitie may bée claimed vpon his or their owne imagination or by false conspiracie or fraud had with any other shall wittingly subtilly and falsly forge or make or wittingly subtilly or falsly cause or assent to bee made and forged any false Charter Deed or Writing to the intent that any person or persons shall or may haue or clayme any estate or interest for terme of yeares of in or to any Mannours Lands Tenements or Hereditaments not beeing Copihold or any Annuitie in Fee simple Fee tayle for terme of life liues or yeares Or shall as is aforesayd forge make or cause or assent to bee made or forged any Obligation or Bill obligatorie or any Acquitance Release or other discharge of any Debt Account Action Suit Demaund or other thing personall Or shall pronounce publish or giue in euidence such false or forged Charter-Déed Writing Obligation or Bill obligatorie or any Acquitance Release or discharge as true knowing the same to bee false and forged and shall bee thereof conuict by any of the wayes or meanes aforesayde Then hee shall pay to the partie grieued his double costs and dammages to bee found and assessed in such Court where the sayde conuiction shall bée had and also shall bee set vpon the Pillorie in some open Market Towne or other open place and there haue one of his eares cut off and also shall suffer imprisonment by the space of one whole yere without baile or mainprise Stat. 5. El. 14 5 The partie and parties grieued by reason of any the offences aforesaid Seuerall remedies for the partie grieued shall and may at his and their pleasure haue and sue his action of forger of false déedes vpon this Statute against any of the offendors in the same by originall writ out of the Chauncerie and
of the Iurors and that the Iuror in respect thereof doth beare an extraordinarie affection and is to make a recompence to the same partie and that therefore in this triall hée will fauour him and be a meane of Periurie and therefore if the Iuror be challenged for that cause he shall be drawen And some doe affirme the same cause of challenge and feare of Periurie to be 7. H. 6. 40. 19. H. 6. 66. if a Iuror hath béene godfather to either of the parties to that triall or to any childe of his 14 The Lawe expecting to be satisfied per Veredictum Iuratorum of the trueth of such causes as doe come to an issue dooth carefully foresée that those Iurors who are to deliuer the trueth by their verdict Periurie suspected in respect of ignorance of the cause should either before the time of the triall vpon their owne priuate knowledge or by their Euidence at the time of the triall be certainely informed of that trueth of the thing in question lest by ignorance mistaking falshoode for trueth they should slide into Periurie And because those that be dwelling or haue some land where the land lease or thing in question doth lie are more likely to haue intelligence of the trueth of the cause in question both to satisfie themselues and informe their Companions than other strangers of the same Countie are who dwell farre off the Lawe hath ordained by the Statute of Anno 27. Elizab. That there shall be sixe sufficient Hundredors impannelled vppon euery Issue ioyned which is to be tried in any of the Courts of the Kings Bench Stt. 27. El. 6. Common Pleas and the Exchequer Want of Hundredors or before the Iustices of Assise in all cases where euerie Iuror by the auncient lawes of this Realme ought to haue fortie shillings of fréeholde at the least And that at or vppon the triall of any personall action there shall two sufficient Hundredors at the least appeare And for that cause if in those cases there be not so many Hundredors at the least the Lawe doth conceiue they be ignorant of the truth of the Issue in triall And to that end for the auoiding of Periurie she will reiect the whole Iurie if they be challenged And so it is in an Assise where the plaintife is to be put in possession per Visum Iuratorum if he recouer or in any action where the Iurie is to haue the view of the land in question 8. Ed. 3. 69. Fitz. Chall 102. 169. if the same Iurors Want of the view or some of them had not the view of the land in question nor did know it before the Lawe will suspect that they will commit Periurie if they should be sworne séeing they be ignorant of the land and know it not in specie And therefore vpon challenge they shall be remooued 1. R. 3. 4. 15 Because our Law-makers haue in seuerall ages found by experience that nothing is a greater motiue enticement Periurie in respect of pouertie or rather inforcement to Periurie than néede and pouertie Therefore they haue endeuoured by many Statutes to prouide that such as be returned of Enquests should not onely be men of good behauiour and credite but also of conuenient liueliehoode estate and abilitie to liue of themselues for that Necessitie which hath no lawe nor bridle should not compell them to sell truth for rewardes nor to plunge themselues into Periurie for bribes And for the preuention of this Periurie in poore persons and such as bee of meane and weake estate Stt. 21. Ed. 1 by a Statute made Anno 21. Ed. 1. it was ordained That no Shiriffe Vndershiriffe or Bayliffe of Libertie shall put in any Recognisaunces of Assises Iuries Enquests or Attaints Iurors impanelled that shal passe out of their owne Counties that shall passe out of their proper County any person of their Bayliwickes except he hath lands and tenements to the yearely value of a hundred shillings at the least or that shall passe within the Countie except hée hath lands to the yearely value of xl s. And for the same cause vpon the same reason of preuention of periurie in poore and néedy persons by a Statute made Anno 3. H. 5. it was established St. 3. H. 5. 3 That no persons shall be admitted to passe in any enquest vpon triall of the death of a man or in any enquest betwéene partie and partie in plea reall or in plea personall whereof the debt or dammages declared do amount to xl Markes if the same person hath not lands and tenements of the yerely value of xl s̄ aboue all charges so that he be challenged for that cause by the party But by the Statute of An̄ 23. H. 8. St. 23. H. 8. 13. euery person being the Kings naturall subiect borne which by the name of a Citizen a fréeman Iurors to try felonies in corporat townes or any other name doth inioy the liberties of any Citie borough or town corporat where he dwelleth being worth in goods to the cléere value of xl li. shall be admitted in triall of Murders and felonies in euery Sessions and gaoles of deliuery kept in and for the libertie of such Cities Boroughes or Townes corporat albeit he hath no fréehold But this Act extendeth not to any Knight or Esquire dwelling abyding or resorting in or to any such citie borough c. And by the Statute of An̄ 27. Eliz. it was enacted Sta. 27. El. 6. That in all cases where any Iuror to bee returned for the triall of any issue or issues ioyned in any of the Courts of the Kings Bench common Pleas the Exchequer or before Iustices of Assise by the Lawes of the Realme now in force ought to haue estate of fréehold in lands Where Iurors must haue 4. li. land tenements or hereditaments of the cléere yerely value of xl s̄ in euery such case the Iurors that shal be returned shall euery of them haue estate of fréehold in lands c. to the cléere yearely value of foure pounds at the least out of auncient demesne within the Countie where the issue is to be tried By the Statute of 11. H. 7. it is prouided St. 11. H. 7. 21. That no person shal be impannelled summoned or sworne in any Iury or Enquest in Courts within the citie of London Iurors in London except he be of lands tenements goods or cattels to the value of xl Markes And no person shall be impannelled summoned or sworne in Iuries or Enquests in any Court within the said Citie for lands or tenements or action personall wherein the debt or dammages amounteth to the summe of xl markes except he be in lands tenemēts goods or cattels to the value of one hundred marks St 19. H. 7. 13. By the Statute of Anno 19. H. 7. it was ordained That euery of the xxiiij persons dwelling within the shire where any riot
verdit or misdemeanors shall happen to be made shall haue full power to compell such Iurors and euery of them vpon paine of imprisonment to be bound by Recognisance in a certaine summe of money by their discretion to be limited that the same Iurors and euery of them shall personally appeare at a certaine day by the same Iusticiar Steward or other officer to be limited before the Lord President and other of the Councell aforesaid for the time being then and there to abide and stand to such direction and order as the same councell shall make ordaine and decree of in and vpon the same And the same councell shall thereupon haue authoritie by examination or otherwise to heare and determine all and euery such cause and shall haue like authoritie to commit euery of the same Iurors to prison or other punishment as shal be thought meet by the discretion of the said counsel or otherwise assesse or taxe euery such Iuror to his fine and ransome by the same discretion to be paied and leuied of their lands goods and cattels to the vse of the King Periurie committed by witnesses 20 Hauing written of the restraint and punishment of periurie in Iurors consisting of twelue persons at the least impannelled or sworn to deliuer their verdict according to their euidēce I am now to expresse what punishments the law doth inflictt vpon such which doe come one by one as deponents or witnesses to testifie the truth and to informe the Iudge or the Iurie of the veritie of the matter in issue or question according to their knowledge whereof euery man by himselfe may be called singularis testis though there be more witnesses sworne in that cause And séeing that iustice cannot be executed without the knowledge of the truth of the cause in question that truth is in most cases only to be deliuered by the othes and testimonies of such parties as were witnesses priuie or best acquainted with the matter in variance Therefore first it is to be obserued that the wisdom of the law hath thought it necessarie to prouide that such witnesses may be compelled vnder a great paine to appear in court and testifie their knowledge concerning such matter in question as by the Statute made Anno 5. A witnes vpon proces serued shall appeare El. it was ordained St. 5. El. 9. St. 29. El. 5. That if any person vpon whom any proces out of any of the courts of Record within this Realme or Wales shal be serued to testifie or depose concerning any matter depending in any of the same courts and hauing tendered to him according to his countenance or calling such reasonable sums of money for his costs and charges as hauing regard to the distance of the places is necessarie to be allowed in the behalfe doe not appeare according to the tenor of the said Proces hauing not a lawfull and reasonable let to the contrarie then the partie making default shall forfeit for euery such offence x. l and shall yéeld such further recompence to the partie grieued as by the discretion of the Iudge of the court out of the which the said proces shall be awarded according to the losse and hindrance that the partie which procured the said proces shall sustaine by reason of the non appearance of the said witnesse the said seuerall summes to be recouered by the partie so grieued against the offendor by A.I.B.P. c. in any of the K. courts of Record wherein no W.E. or P. c. 21 There were seuerall statutes made during the raignes of king H. 6. K. H. 7. and K. H. 8. against Periurie and the procurers and committers of periurie and lastly one was ordained Anno 32. H. 8. St. 32. H. 8. 9 against such as should suborne witnesses to the hindrance of Iustice and the procurement of periurie Sithence the making whereof for that the penaltie therein is small towards the offendors in that behalfe the said offence of subornation and sinister procurement of false witnesses did neuerthelesse greatly increase and by reason of the wilfull Periurie committed by the same suborned witnesses diuers persons did sustaine disherison and great impouerishment as well of their lands and tenements as of their goods and cattels The penaltie for procuring of wilfull periury in witnesses for the redresse and more sharpe punishment whereof St. 5. El. 9. 29. El. 5. by a Statute made Anno 5. El. it was enacted That all and euery person and persons which shall vnlawfully and corruptly procure any witnes or witnesses by Letters Rewards Promises or by any other sinister and vnlawfull labour or meanes whatsoeuer to commit any wilfull and corrupt Periurie in any matter or cause whatsoeuer depending in suit and variance by any Writ Action Bill Complaint or Information in any wise concerning any lands tenements or hereditaments or any goods cattels debts or dammages in any of the courts of the Chauncerie Starre chamber White hall or in any other of the Kings Courts of Record or in any Léet view of Franke pledge or Law day Auncient demesne Court Court Hundred Court Baron or in the Court or Courts of the Stannerie in the countie of Deuon and Cornewall Or shall likewise vnlawfully and corruptly procure or suborne any witnesse or witnesses which shall bée sworne to testifie in perpetuam rei memoriam Then euery such offendor or offendors shall for his hers or their said offence béeing thereof lawfully conuicted or attainted forfeit fourtie pounds to the King and the partie grieued hindered or molested by reason of any of the offences aforesaid that will sue for the same by A. B. P. or I. in any of the Kings Courts of Record wherein no W. E. P. or I. shall bée allowed And if it happen any such offendor or offendors béeing so conuicted or attainted as is aforesaid not to haue any goods or cattels Lands or Tenements to the value of fourtie pounds then euery such person or persons so conuicted or attainted of any of the offences aforesaid shall suffer imprisonment one halfe yeare without Baile or Maineprise and stand vpon the Pillorie one whole houre in some Market Towne neere or next adioyning to the place where the offence was committed in open market there And no person béeing so conuicted or attainted shall bée from thenceforth receiued as a witnesse to bée deposed in any court of Record within any of the Kings dominions of England Wales or the Marches of the same vntill the Iudgement giuen against him or them shall bée reuersed by Attaint or otherwise And vpon euery such reuersall the parties grieued shall recouer his or their dammages against all and euery such person and persons as did procure the said iudgement so reuersed to bee first giuen against them or any of them by action to be sued vpon his or their case according to the course of the common Law St. 5. El. 9. 22 If any person or persons either by the subornation
or meanes of any others or by his owne act consent or agréement shall wilfully and corruptly commit any manner of wilfull Periury Periury committed by witnesses for Bankrupts by his deposition to be taken before the said Commissioners or the greater part of them as is aforesaid Then the party or parties so offending and all and euery person and persons that shall vnlawfully and corruptly procure any such vnlawfull wilfull and corrupt Periurie shall or may therefore be indited in any of the Kings Courts of Record and after his or their conuiction thereof shall incurre such forfeiture and receiue and haue such paines and punishment as are limitted by the statute made concerning Periury St. an̄ 5. El. 9. Anno 5. Eliz. 9. Co. li. 5. f. 99 28 A man cannot be indited for Periurie vpon the foresaid statute of 5. Periury committed vpon an indictment of Riot El. for giuing false euidence on his oath to the Enquest at a Sessions vpon an Indictment of Riot For the statute was ordained against procurers of Periurie in a matter depending in suit and variance by any Writ Action Bill Complaint or Information and so procurement of Periurie vpon an indictment is out of this braunch of the said statute And the second braunch of the same statute touching committing of Periury shal haue the same construction which the first hath though it be not there in words and shall haue reference to the first And it shal be expounded as if the words of the statute had béene If any person shall wilfully and corruptly commit any wilfull Periurie in any cause depending in suit by any Writ Bill Action c. And the same law is if a man commit wilfull Periury Periury vpon an indictment of Felony vpon euidence giuen to the great Enquest vpon an indictment of Felony he is not to be punished by force of the foresaid statute of Anno 5. Eliz. Periury in prouing a suggestion for a prohibition 29 If wilfull Periurie be committed in the Kings bench 7. 8. Eliz. Dyer 243. by any witnesse produced to proue a Suggestion for a Prohibition there graunted against an Ecclesiasticall Iudge according to the statute of 2. 3. E. 6. St. 2. E. 6. 13 whereby the party is staied of this consultation this shall not be examined and punished in the Starre chamber for the statute of 3. H. 7. St. 3. H. 7. 1 which maketh mention of such things as the Court of Starre chamber is to hold plea of prouideth no more punishment by speciall words for Periurie then it doth for Murder or Rape There is a prouiso in the foresaid statute of Anno 5. El. That the Lord Chancelor and others of the Qu. Counsell shall and may procéed in the punishment of all offences in such wise as they might haue done and vsed to do before the making of the said Act to all purposes so that they set vpon the offendors no lesse punishment then is contained in the said Act. 30 A Bill of Periurie may be sued in the Chancery for a periurie committed in the same Court A suit vpon periury in the Chancery contrary to the foresaid statute of Anno 5. 12. El. Dy. 288. El. and if the defendant do plead vnto it not guilty he shall be sworne to his plea and also shall answer to Interrogatories as it is vsually done in the Starre chamber for the L. Chauncellor had absolute power before the said statute of Ann̄ 5. El. to punish Periury And therefore by a prouiso in the said statute his power therein is not restrained by the same statute And if the Court of Chauncery will examine Periury committed there it must be done by a bill in Latin and pleaded in Latin and the issue shal be ioyned there and tried in the K. Bench as it is vsed in the like cases Where periury shal be punished in the tēporall court where in the spirituall 31 There is no remedy or punishment for Periurie in a spirituall Court against indictors that do endite a man of felony which be periured 22. H. 8. Kel 39. or against a Iury which doth giue a false verdict betwéene party and party And if a suit be commenced in the spirituall court against an offendor in Periurie in either of those cases he may haue a prohibition for this periury doth rise vpon a cause that is temporall viz. the Treason or Felony Debt Trespas or plea of land and for this periury the offendors shall be punished by attaint by the common law or otherwise And so it is if a man be defamed by a false indictment there is no remedy in the spirituall Court for his defamation for that it groweth vpon a matter which is temporall But where the Periury doth rise vpon a matter which is spirituall as vpon a Testament Matrimony or Legacie or such like then the spirituall Iudge hath authority to punish it and in that case a Prohibition will not lie And as there is no punishment in the Ecclesiastical Court for Periury that doth rise vpon a cause that is temporall So the Law hath prouided Co. lib. 4. 20 that defamation Defamation which is another euill fruit of a malicious and corrupt heart and of a leud and venomous tongue shall not be punished in the Ecclesiasticall Court vnlesse it concerne matter that is méerely spirituall and determinable in the Ecclesiasticall Court as to call a man Hereticke Schismaticke Adulterer Fornicator c. and vnlesse it doth concerne matter that is méerely spirituall onely For if such a defamation doe concerne any thing that is determinable at the common Law the Ecclesiasticall Iudge shal not hold plea thereof And yet if such a defamation be méerely spirituall and onely spirituall notwithstanding he that doth sue in the Ecclesiasticall Court for being defamed cannot sue there for recompence or dammages but only for the punishment of the offence ⧠Maintenance Champertie Embracerie and Buying of Titles MAintenance is where a man giueth to another that is demaundant What maintenance is the enormities thereof or tenant plaintife or defendant in any suit or to any other in his behalfe or to his vse any summe of money or other reward for to maintaine his plea or suit Or otherwise vseth persuasion or maketh labour for him or vseth other meanes to countenance aid or assist him when he himselfe hath nothing therewith to doe Which is an offence that the wisdome of the Realme from age to age hath condemned and hath indeuored to inflict diuers punishments vpon the transgressors therein as it may appeare by the statutes of West 1. West 2. 28. Ed. 1. 33. Ed. 1. 8. H. 6. 19. H. 7. 32. H. 8. 18. El. The law doth so greatly desire the continuance of peace betwéene one member of the Commonweale and another so much condemneth variance suits without cause that many times and in many causes the plaintife is amerced
the land or thing in variance so it is Maintenance to take part in any quarrell depending in suit in the Kings court or to worke any fraud whereby iustice may be hindered Westm 1. 3. E. 1. 28. as it appeareth by the statute of West 1. whereby it is ordained That if any Clerke of the kings or of any Iustice The penalty for maintaining of suits do receiue the presentment of any Church for the which any plea or debate is in the K. Court without the kings speciall licence he shal loose the Church and his seruice And if any Iustices or Shirifes Clerke take part in any quarrell depending in the Kings Court or doe worke any fraud whereby common right may be delayed or disturbed he shall loose his seruice and be further punished if the Trespas doe require St. 32. H. 8. 9 And after by a statute made Anno 32. H. 8. there was a greater penalty imposed vpon those who shall be maintainors of suits By which statute it was ordained That no person or persons whatsoeuer shall vnlawfully maintaine or cause or procure any vnlawfull maintenance in any action suit demaund or complaint in any of the Kings Courts of the Chauncerie Starre-chamber White hall or elsewhere within any of the K. dominions of England or Wales or the marches of the same where any person or persons haue authoritie by vertue of the K. Commission Patent or Writ to hold plea of lands or to heare examine or determine any title of lands or any matter of witnesse concerning the title right or interest of any lands tenements or hereditaments Or shall vnlawfully retaine for maintenance of any suit or plea Retaining for maintenance or imbracing or suborning of Iurors any person or persons or embrace any fréeholders or Iurors or suborne any witnesse by letters rewards promise or by any other sinister labour or meanes for to maintaine any matter or cause or to the disturbance or hinderance of iustice or to the procurement or occasion of any manner of Periurie by false verdict or otherwise in any of the Courts aforesaid vpon paine of forfeiture for euery such offence x. pounds to the king and Inf. to be recouered by him that will sue for the same in any of the kings Courts of Record by Action of Debt Bill Plaint or Information wherein no W.E.P. c. if the suit be commenced in any of the kings Courts within one yeare next after any such offence committed or els not 10 As it is Maintenance to haue by agréement part of the land in variance or part of the gaines of the suit in question so is it Maintenance to buy a pretenced right or title of another of or to lands or tenements whereof the seller hath no possession for this oft times the cause of Subornation of witnesses procurement of Periurie and of the subuersion of iustice For the redresse whereof by the last specified Statute of Anno 32. H. 8. St. 32. H. 8. 9 it was first enacted That all Statutes heretofore made concerning Maintenance Champertie and Embracerie or any of them then standing in force should be put in due execution according to the effects of the same And also by the same statute it was ouer that ordayned Maintenance by buying of pretēced titles That no person or persons of what estate degrée or condition soeuer he or they be shall bargaine buy or sell or by any meanes obtaine get or haue any pretenced rights or titles or take promise graunt or couenant to haue any right or title of any person or persons in or to any Manors Lands Tenements or other Hereditaments but if such person or persons which shall so bargaine giue graunt couenant or promise the same their auncestors or they by whom he or they claime the same haue béene in possession of the same or of the reuersion or remainder thereof or taken the rents or profites thereof by the space of one whole yeare next before the said bargaine couenant graunt or promise made vpon paine that he that shall make any such bargaine sale promise couenant or graunt shall forfeit the whole value of the Lands Tenements or Hereditaments so bargained sold promised couenanted or graunted contrary to the forme of this Act. And the buyer or taker thereof knowing the same shall also forfeit the said value of the said Landes Tenements or Hereditaments so by him bought or taken as is aforesaid the one halfe of the said forfeitures to be to the king and the other halfe to the party that will sue for the same in any of the kings Courts of Record by Action of Debt Bill P. or I. c. wherein no W. E. P. or I. c. if the suit be commenced by A. B. P. or I. in any of the kings Courts within one yeare next after any such offence committed or els not Prouided alwayes The possessor purchaseth a pretenced title That it shall be lawfull to any person or persons being in lawfull possession by taking of the yearely ferme rents or profites of any Manors Lands Tenements or Hereditaments to buy obtaine get or haue by any reasonable meanes the pretended right or title of any other person or persons to be made to of or in any such lands tenements or hereditaments whereof he shal be so in lawfull possession Any thing in this Act c. notwithstanding 22 23. El. Dyer 374. 6. Ed. 6. Dy. 74. Plow Com̄ 87. 11 If a man take a lease or promise a lease for the terme of certain yéeres to another of land contrary to the foresaid statute of Ann̄ 32. H. 8. What is selling of a pretenced title viz. of those lands whereof neither he himselfe nor any of his auncestors nor any by whō he doth clayme the same land haue béene in possession of the same nor of the reuersion nor remainder thereof nor taken the rents or profits thereof by the space of one whole yeare before the said bargaine graunt and demise made he is within the danger of the foresaid statute of Anno 32. H. 8. as well as if hée had made an estate for the terme of life in taile or in fée simple of the same lād for that the scope and effect of the statute is vtterly to root out of Maintenance and bargaines and promises of Titles for the which the words of the statute be That no person shall sell or buy any pretenced rights or titles And a lease is no more lawfull for one yeare then for an hundred yeares and some man will be as ready to maintaine to haue a lease for yeares as to haue a greater estate Wherefore he that doth make a lease for yeares or make promise of a lease for yeares of lands whereof he hath but a pretenced right or title shall forfeit to the King and him that will sue the whole value of the inheritance of the land as well as if he had bargained and sold the fée simple thereof But
maintaine the suit and so may A. for either of them hath interest in this debt and one of them may aid assist and maintaine the other to recouer his debt against C. in respect of their seuerall interests in the same debt But if in this case A. had promised to B. but part of this debt to haue prosecuted and maintained this suit then it had beene Champertie and vnlawfull maintenance in B. And the same law is 34. H. 6. 30. if one man be bound by Obligation to pay another man xx l. to the vse of a third man the Obligée and hee to whose vse the Obligation was made may both meddle in the suit of this Obligation 27 And so it is in goods for he that hath any propertie title Maintenance in respect of his title to goods or lawfull possession in goods 39. H. 6. 20. may maintaine a suit that is prosecuted against another touching the same goods As B. brought an action of Debt against A. in London and the Sherife returned that A. had nothing c. Wherupon at the plaintifes surmise certain goods of A. were attached in the hands of I. according to the custome of the said Citie and a Scire facias was awarded against the same I. to answer for those goods in which A. did maintaine the same I. in nominating vnto him a learned man in the law to whom by his aduice he went for his counsell and this was awarded maintenance iustifiable for that the propertie of the goods fo attached in the hands of I. were and did continue in the said A. Maintenance in detaing of a writing deliuered in trust So it is if one man doe deliuer a déed or other writing to another to be kept if a straunger will bring an action of Detinue against him to whom the same was deliuered the partie who deliuered that writing may lawfully maintaine him in that suit for the interest hee hath in the same writing And yet the recouerie of that writing would not haue bound him that did deliuer it but hée might haue had his action for the same against him that did recouer it Maintenance in respect of his ioynt interest with others 28 As euerie person may lawfully maintaine any suit that shall be prosecuted which concerneth his priuat and particular land lease rent debt or goods so may he maintaine a suit touching any land or other thing which hée hath ioyntly or in common with others 18. E. 4. 2. As the Parson of a Church brought an action of Trespasse against one of his Parishioners for digging of his ground and spoyling of his grasse Whereunto the defendant pleaded That the place where the Trespasse was supposed to be done is a Churchyard consecrate by the Bishop and that he and all those who are inhabitants in the same Parish haue vsed to haue their Sacraments and buriall for their dead there And that one of the inhabitants of the same Parish dyed and hee with others brought his bodie to the Church and after made a graue for him in the same Churchyard and there buried him which is the same digging whereof the plaintife hath conceiued his action Whereupon they were at issue In this case it was agreed by all the Iustices that euerie inhabitant of the same Parish may lawfully giue euidence and otherwise maintaine this issue though they be not parties thereunto for euerie of them hath the like interest in the Churchyard Maintenance by all the inhabitants of a parish as the partie to that suit And the same reason and law seemeth to be if there be a suit commenced betweene one or more inhabitants of a village Hamlet or Parish and some other person or persons for a common or way or for the digging of a pit of stone marle grauell morter sand c. vsed or claimed to belong or of right to bee due to the inhabitants of the same Village Hamlet or Parish after issue ioyned touching the right or title of the same common way or pit the residue of the inhabitants of the said Village Hamlet or Parish may aide and assist their neighbour or neighbours partie to that issue and it is lawfull maintenance for it tendeth to the benefit or preiudice of all the said inhabitants and is in a sort their owne case Maintenance of a poore man in his suit 29 In a Writ of Maintenance the plaintife supposed that the defendant did maintaine one A. in an action which the plaintife brought against the sayd A. Whereunto the defendant pleaded That the same A. was a poore man 32. H. 6. 35. 21. H. 6. 15. and had nothing to defend himselfe in the suit which the plaintif had commenced against him and that the defendant of his almes gaue him xx s. which is the same maintenance This was allowed a lawfull maintenance and iustifiable for any man to doe for whereas vnlawfull maintenance is in case when a man doth maintaine a suit to haue the whole or parcell of the land 9. H. 6. 64. or thing in question or to haue some other consideration to further or vphold that suit or where a man hauing nothing to do nor colour to meddle yet wil vndertake for euill will to maintaine that cause in question this giuing mony to a poore man to defend his right is not to either of the intents aforesaid but bestowed vpon a charitable disposition to search out truth and further the execution of iustice which appeareth by the stat of 11. H. 7. wherin the king and the whole parliament willing indifferent iustice to be ministred according to the common laws as wel to the poore as to the rich and perceiuing that the poore were not of abilitie to sue according to the law of the realme for the redresse of their iniuries and wrongs ordained that the king himselfe the L. Chancellor and some of each profession towards the law should in a sort aid and assist them the words of which stat be these St. 11. H. 7. 12 viz Euerie poore person which shall haue cause of action against any other shal haue by the discretion of the Chancellor Proces counsellors and Atturneyes assigned to aid the poore writs originall writs of Subpena according to the nature of his cause nothing paying to the K. for the seales of the same nor to any person for the writing of the same writs And the said Chancellor shall assigne such of the clerkes which shal vse the making and writing of the writs to write the same readie to be sealed and also learned Counsell Atturneyes for the same without taking any reward therefore And after the said writs be returned if it bee before the King in his Bench the Iustices there shal assigne to the same poore person counsel learned by their discretions which shall giue their counsell nothing taking for the same And likewise the Iustices shall appoint Atturneyes for the same poore person all other
That all recoueries to be had or prosecuted by agreement of the parties Recoueries against particular tenants by Couin to defraud him in the reuertion or by Couin against any tenants by the Curtesie of England Tenants in taile after possibilitie of issue extinct or otherwise onely for the terme of life or liues or of estates determinable vpon life or liues of any lands Tenements or hereditaments whereof the same particular Tenant is or shal be seised of any such particular estate as is aforesaid or against any other with Voucher ouer of any such particular Tenant or of any hauing or that had right or title to any such particular estate or tenancie as is aforesaid shal as against such person or persons to whom any reuersion or remainder thereof by force of any Conueyance or deuise before that time had or made shall ought or lawfully may appertaine and against their heyres and successors be vtterly voide Prouided alwaies that this Act shall not extend to any person or persons that shall by good title recouer any lands tenemēts or hereditaments without fraud or Couin by reason of any former right or title But al euery such recouerie and recoueries vpon former rights and titles shall stand and be in like force as they were before the making of this Acte And in all and euerie recouerie and recoueries to be had or prosecuted of any lands tenements or hereditaments by the assent and agreement of any person or persons to whom any reuersion or remainder thereof then shall or ought to appertaine so that the same assent and agréement doe appeare of record in any of the Kings Courts shall stand in like strength and of like effect against such person and persons that shal so assent and agree their heyres successors as they were before the making of this act 27 And for that Couin and fraud should be restrained and punished when it shall be put in practise or intended by those in reuersion to defeate their Lessees of their termes for yeares as it was by the aforesaid Statutes when it was executed by particular Tenants to the preiudice or disheritance of them in the Reuersion Couin by him in the reuersion to defeate his Lessee for yeeres Therefore by a Statute made Anno 21. H. 8. Stat. 21. H. 8. 15 Stat. 6. E. 1. 11. it was enacted That if any persons doe make leases of their lands tenements or other hereditaments by Indentures or without writing to other persons for terme of yeares if after the same Lessors their heires or assignes do cause or suffer recoueries to be had against them in the Kings or any other Lordes Court vpon fained and vntrue title by craft and Couin to put the said Termors from their Termes all such Termor shall and may falsifie for his terme only such recouerie in such wise and forme as a tenant of fréehold shall may doe by the course of the cōmon law where such tenant was neither priuie nor party to such recouerie And the same Termors their Executors assignees notwithstanding such recouerie so had shall enioy retaine and hold their said termes according to their said leases against all such recouerors their heyres and assignees And the said recouerers their heyres and assignees after such recouerie so had shal haue like remedy against the said termors their Executors and assignees by auowrie or action of debt for the rents and seruices reserued vpon the same leases being due after the same recoueries also like actions against them for waste done after the same recoueries so had in like manner and forme as the said Lessors should or might haue had if the same recoueries had neuer beene had No manner of Statute of the Staple Couin to auoide a Statute or recognisance statute marchant nor execution by Elegit shal be auoided by meanes of any such feyned recouerie but all persons hauing any lands tenements or other hereditaments in execution or being intituled to haue execution of any lands or tenements by any such meanes shal haue like remedie to auoide and falsifie the same recouerie as before is prouided for the lessee for terme of yeares 28 There haue beene many lawes and Statutes deuised from age to age to restraine and punish seueral sorts of deceits Couins collusions and frauds but most to encounter and checke fraudulent deeds cōtriued of malice or guile to defeate Stat. 50 Ed. 3. 6. 1. R. 2. 9. 2. R. 2. 3. 3. H. 7. 4. 13. El. 5. 27. El. 4. delay or hinder others of their lands leases goods cattels debts c. as it appeareth by the statute made A. 50. Ed. 3. 1. R. 2. 2. R. 2. 3. H. 7. 13. El. 27. El. But as deceit and fraud increased in this realme so new penalties and greater punishments were inuented from time to time to inflict vpon the transgressors therin And because fained couenous and fraudulent Feoffmēts gifts graunts alienations conueyances bonds sutes iudgements executions of lands and tenements goods and cattels being deuised of Couin guile to defraud creditors and others of their iust and lawful actions dets c. be not only to the let of the due course and execution of law iustice but also to the ouerthrow of all true and plaine dealing bargaining and cheuisance betweene man and man without the which no common weale or ciuill societie can bee maintained or continued Therefore by a Statute made A. 13. El. it was enacted Stat. 13. El. 5 Stat 29. El. 5. That all and euery Feoffment gift graunt bargaine alienation Fraudulent deeds to auoide other mens debts and duties and conueyaunce of lands tenements hereditaments goods cattels or of any of them or of any lease rent common or other profite or charge out of the same lands hereditaments goods c. or any of them by writing or otherwise And all and euery bond sute iudgement and execution at any time had or made sithence the beginning of Queen Elizabeths raigne or at any time hereafter to be had or made which haue beene and are deuised contriued of malice fraud couin collusion or guile to the intent c. to delay hinder or defraud creditors others of their iust lawfull actions sutes debts accompts damages penalties forfeitures hariots mortuaries or reliefes shal be taken deemed onely as against that person his heires executors successors or assignes whose actions sutes debts accoūts c. by such guileful couenous or fraudulēt deeds deuises practises as is aforesaid are shall or mought be in any wise disturbed hindered delaied or defrauded to be cléerly void of none effect any colour fayned cōsideration expressing of vse or any other matter to the cōtrary notwtstanding And al euery the parties to such fained or fraudulēt feoffment gift graunt alienation bargaine conueyance bond sute iudgement execution Parties to fraudulent deedes c. or being priuie and knowing of the same or any of them which
be adiudged to the pillory the third time he shal be imprisoned make fine the fourth time he shall forsweare the towne And in this manner shal it be done of all that offeÌ„d in like case as of cookes that séeth flesh or fish any waies that is not holesome for mans body or after that they haue kept it so long that it looseth the naturall holesomenesse then séeth it againe and sell it And in like sort St. 39. El. 10 by one other statute made An. 39. El. it was enacted That if any alien or stranger born or any denizen or naturall born subiect of this realme shal bring into any hauen port créeke or town of this realme any salt fish or salt herrings which shal not be good swéet seasonable méet for maÌ„s meat shal offer the same to be sold and shall be warned by any officer of such Port c. where the same shal be offered to be sold that the same be not seasonable nor méet for mans meat Then if he or they shall after that offer any of the said vnseasonable fish to be sold to any person within this Realme or being an alien borne and no denizen shall not depart with the same from the said Hauen Port or Towne so soone as conueniencie will serue Then all and euery person owners therof shall forfeit to the Queen all the said vnseasonable fish vnméet for mans meat as is aforesaid And by a statute made Anno 4. Ed. 3. it was established St. 4. E. 3. 12 That assay shall be made of wines twice euery yeare once at Easter and another time at Michaelmas and more oft if néed be by the lords of the Townes and their Baylifes and also by the Mayors and Baylifes of the same townes and all wines that be found corrupt shal be powred out and the vessels broken ⧠Extortion Exaction 1 EXtortion is a wrong done by an Officer What is Extortion as Ordinarie Archdeacon Officiall Maior Bailife Shirife Escheator Coroner Vndershirife Auditor Receiuer Clerke or other Officer or by any other by colour of an office in taking of an excessiue reward or fée and more then the law doth allow him for execution of his said office which offence in some degrées is worse then the priuy picking of a mans purse in secret and the transgressor in a sort may be compared to the Fréebooter which with drawne sword and with menacing words assaulteth the trauailer by the way who casteth down his purse to him for feare of further hurt And so is the poore sutor many times inforced to doe to the Officer when of necessitie he must vse his helpe It is a thing most odious and offensiue to the iustice and peace of the Realme and to all the members thereof that those men who be specially made choice of and principally selected to serue their prince and countrey and to further the execution of iustice in their offices and places and be sufficiently rewarded with conuenient stipends for their paines therein should in contempt of the law assesse their owne fées in a sort put their hands in other mens purses and there take what they will and thereby doe wrong vnder the colour and shadow of iustice Exaction is a wrong done by an officer What is Exaction or by one pretending to haue authoritie in demaunding and taking reward or fée for that matter cause or thing which the law doth allow no fée at all And as our common statute lawes haue declared which offences or acts they doe condemne and adiudge as Extortions and Exactions so haue they prescribed in most cases seuerall penalties to be inflicted vpon the seuerall transgressors therein leauing the residue to be punished at the kings pleasure or by the discretion of such of his Iudges Iustices or others by his commission authorized before whom the offendors shall be thereof conuicted And further our said statute lawes haue set downe for the most part what fées or duties the sutor ought to pay to the officer the officer is to demaund of him to the intent that the one shall not be ignorant what to offer nor the other what to require and to the end that the Law hauing written it in a sort in the officers forehead what his duty is he may blush when he looketh in the sutors face and demaundeth more 2 I will begin with an Exaction that no former generation did tast of heare of or feare but it hath sprung vp of later yeares bin greatly exclaimed of and condemned in this our present age which is taking of money or some other reward for a Report or Certificat wherein the offendor most commonly doth a double iniury and to two seuerall persons viz. first to him whose mony fee or other reward he taketh for the fauourable making of that report in his behalfe whereas the law doth allow him none for reporting but otherwise bountifully rewardeth him for that and all such other paines and next and chiefely to him in preiudice of whom or whose case he maketh that report He doth not now indifferently respect the cause in question but bendeth his eye vpoÌ„ the reward which he hath receiued and deuiseth to accomplish the request of the one and yet to yéeld to the other not the effect but some colour of iustice The King at his coronation doth promise to all his subiects Mag. Chart. St. 9. H. 3. 29 Quod nulli vendemus nulli negabimus aut differemus iusticiam whereupon the whole realme did take it vnkindly at their hands who being the kings Substitutes in place of iustice and receiuing but a small particle of his authoritie would doe then all the said offences at once and sell denie and deferre iustice to some of the kings subiects certifie that for good which was bad or that for iustice which was méere iniurie Or if they did make report and certificat of that which was iust and true would sell it and take money or other reward for it which the king himselfe vpon his oath refuseth to doe And therefore because all exâ—â—tions extortions and corruptions be odious as well in this as in all other well gouerned Commonweales and to the intent to preuent the like enormities in this and other ages by a statute made Anno 1. Iacob it was enacted St. 1. Iac. 10 That no person to whom any order or cause shal be committed Exaction by taking or reward for a report or referred by any of the Kings Iudges or Courts at Westminster or any other Court directly or indirectly or by any act shift colour or deuice haue take or receiue any money fée reward couenant obligation promise agréement or any other thing for his report or certificat by writing or otherwise vpon paine of forfeiture of one hundred pounds for euery such report or certificat and to be depriued of his office and place in the same Court The one moitie to be to the king his
heices c. the other moitie to the party grieued which will sue for the same at any time during the said suit or within one yeare after the same cause discontinued or decréed and in his default of such suit to him or them that will sue for the same by originall writ B. P. or I. in the Kings Court of Starre-chamber or in any of his Courts of Record at Westminster in which suit by B. P. or I. no W. E. P. S. P. or any other delay shall be admitted The Clerkes duty Prouided neuerthelesse That it shal be lawfull for the Clerke to take for his paines for writing of euery such report or certificat twelue pence for the first side and two pence for euery side after and no more vpon paine to forfeit tenne shillings for euery penny taken ouer and aboue the said summes to be had and recouered as aforesaid Extortion in the shirife coroner other officers 3 For that the kings of this Realme haue allowed to their Officers from time to time sufficient Salaries to maintaine them according to their estates and degrées to the intent that they should not otherwise extort any thing from their subiects but such fées duties as the auncient customes laws or statutes of the realme did allow them Therfore by the statute of West 1. it was ordained That if any shirife coroner St. 3. E. 1. 26 or other officer of the kings do take any thing to execute his office but only that which the king alloweth him he shal render double to the party and shal be punished at the kings pleasure St. 3. E. 1. 29 4 To preuent extortion in certaine Officers of the Iudges Extortion in a Serieant Crier or Marshall of a Iudge by the same stat of West 1. it was enacted That if the Serient Crier or Marshall of any Iustice do wrongfully take mony of any which doth recouer land obtaine his suit leuie a fine or prosecute any suit touching any plea of the Crowne he shal be punished at the kings pleasure and yéeld treble damages to the party grieued And if hée be a Serieant of fée his Office shal be seised into the K. hands But in an attaint 29. Ass p. 13 if the plaintife be nonsuit euery of the petit Iurie shall pay xij d. to the Marshall and be discharged 5 To eschew extortion which in some cases before had béen committed by some Coroners St. 1. E. 1. 10. St. 1. H. 8. 7 first by the stat of anno 3. E. 1. Extortion in a Coroner and after that by the stat of anno 1. H. 8. it was established That a Coroner vpon request made to him to come and inquire vpon the view of any person slaine drowned or otherwise dead by misaduenture the same Coroner shall doe his office diligently vpon the view of the bodie of euerie such person or persons without taking any thing therefore vpon paine to euery Coroner that will not endeuor himselfe to doe his Office as is aforesaid or that hée taketh any thing for dooing of his Office vpon euerie person dead by misaduenture for euerie time fortie shillings 27. Ass p. 14 And vpon the said statute of Anno 3. Ed. 1. two Coroners were indicted of Extortion for that they had taken of some of the K. people halfe a mark at seuerall times contrarie to the foresaid stat and their othes and therefore they paid a fine to the King 6 Because the Sherife of euerie Countie is a great and necessarie Officer in the Commonweale and vsed as a speciall instrument to the furtherance of iustice in all suits pursued at the common law and his seruice is imployed in the beginning prosecuting and ending of the most of them therefore as the law hath alwayes had a speciall regard of him and foreséene that he shall be a man of wisedome of worth of credit countenance and ability and that he shall be allowed a conuenient stipend and salary for his pains in most cases so doth she carrie a vigilant and watchfull eye vpon him and his inferiour Officers or Substitutes knowing what grieuous oppressions might ensue if she should leaue a man of his authoritie and necessarie imployment at libertie to diue at his pleasure into other mens purses and to take what hee would and therefore she hath restrained him his Vndersherife Bailife of Franchise and other Bailife within certaine lists and assigned them what they shall take for Arrests Attachements Mainprises letting to Baile and seruing of Executions which if any of them do cxcéed he shall forfeit the penalties hereafter expressed and be adiudged an extortioner Extortion in Sherifes Vndersherifs Bailifes As appeareth by the stat of An. 23. St. 23. H. 6. 10. H. 6. whereby it was ordained That no Sherife Vndersherife Bailife of Franchise nor any other Bailif by occasion or vnder colour of his Office shall take any other thing by themselues or by any other person to their vse or to their profit of any person by any of them arrested or attached nor of any other for them for the omitting of any arrest or attachement to bée made by their bodies or of any person by any of them by force or colour of their office arrested or attached for fine fée mainprise letting to bayle or for shewing any ease or fauour to any such person so arrested The fées of the Sherife for arrests c. for their reward or profit but such as followeth viz. The Sherife xx d the Bailife which maketh the arrest or attachement iiij d. the Gaoler if the prisoner be cōmitted to his ward iiij The Sherifes duetie for the making of a copie of a Panel d. The Sherife Vndersherife Sherifes Clerke Steward or Bailif of Franchise seruant to the Bailife or Coroner shall not take by colour of his office by himselfe nor by any other person to his vse any thing of any person for making of any returne or panell and for the copie of a panell iiij d. No Sherife nor none of the officers aforesaid shall take or cause to be taken or made any obligation by colour of their office but onely to themselues of any person nor by any person which shall be in their ward by course of the law but in the name of their office and vpon condition written that the said prisoners shall appeare at the day of the said writs bils or warrants and in such places as the said writs bils or warrants shall require And if any of the said Sherifes or other officers aforesaid take any Obligation in any other forme by colour of their offices it shall be void And he shall take no more for making of any such obligation The Sherifes c. forfeiture for extortion warrant or precept by him to be made but iiij d. And all Sherifes Vndersherifes Clerks Bailifes Gaolers Coroners Stewards Bailifes of Franchises or any other Officers or Ministers which doe contrarie to
that he did cause some lawfull punishment to be inflicted vpon certaine of them for their crimes notwithstanding all these or such like misdemeanors be neither Treason nor Felony by the Law but a Riot and yet in respect of the basenesse of the parties which committed this wrong of the cause for the which they put it in practise of the worthinesse of the person and of his place vpon whom it was executed of the barbarous course taken in the performance therof of the perillous exāple giuen to other malefactors these riotors deserue to bée censured with a much sharper punishment then the former For as there be no bounds obserued by leud and wicked persons of their outrages so be there no certaine means or limits assigned of their punishments but the said most honourable Court of estate may draw forth his Maiesties sword of iustice and first punish the said offences according to the particuler lawes and statutes prouided therfore and then euery person transgressing by himselfe according to the circumstance of his demerits as partly may appeare by the statute of anno 3. H. 7. St. 3. H. 7. 1. which expresseth some parts of the authority giuen to the Lords of the said Court and more by a branch of the statute of Magna Charta whereby it is enacted St. 9. H. 3. 14 That euery fréeman shall be amerced viz. punished for reasonable cause according to the quantity of his offence And further by the statute of Anno 33. H. 8. St. 33. H. 8. 1 which giueth the lords of the said Court of Starre-chamber authority to punish those who by counterfeit letters or tokens shall get other mens goods into their hands by imprisonment setting vpon the pillory or other corporall paine whatsoeuer except death ⧠Treasons 1 CRimen lesae Maiestatis What is Treason in our English tongue called Treason is a great offence done to the Maiesty of gouernement and the peace of the land which the wisdome of this Realme hath from age to age so much hated and abhorred that they haue persecuted those that were guiltie therin with most violent and vntimely death and with extreame and seuere tortures they haue ordained that an offendor therein shall be hanged and cut downe aliue that his bowels shall bée cut off and burned in his sight that his head shall bée seuered from his bodie that his quarters shall bée diuided asunder and disposed at the Kings pleasure and made food for the birds of the aire or the beasts of the field and that his wife and children shall be thrust out of his house and liuings that his séed and blood shall be corrupted that his lands and goods shall be confiscated and as by the statute of 29. H. 6. 1. it is ordained of the Traitor Iohn Cade he shall be called a false Traytor for euer And as our respectiue and considerat forefathers haue deuised to yéeld vnto those grieuous offendors Legem talionis and to teare their bodies lands and goods who doe practise to rent and pull asunder this Maiestie of gouernement by destroying the head or such as are like to be the principall succéeding members thereof or by diuiding the bodie into parts or by weakning the force and strength thereof or by subuerting the chiefe Magistrats of iustice or by counterfeiting staining or blemishing of the peculiar and royall Ensignes Cognisances and Sinewes thereof so haue they béene carefull and prouident that there should be no greater number of those dreadfull sharpe and bitter lawes than vrgent necessitie for the preseruation of that Maiestie of gouernment required And because it was in former times greatly doubted and ofttimes called in question amongst the Sages of the Realme and learned in the lawes which offences were by the common law high Treason and which not and which were petit Treason and which not and seuerall men were of seuerall opinions therein and to the intent that al future ages might know and be more vigilant to eschew the penalties thereof King Edward the third at his Parliament begun at Westminster the thirtéenth day of Ianuarie St. 25. E. 3. 2 in the 25. yere of his raign at the request of his Lords and petition of his Commons made a declaration thereof in manner as hereafter followeth viz. It is high Treason where a man doth compasse High treason or imagin the death of our Soueraigne Lord the King or of our Ladie the Quéene his wife or of their eldest sonne and heire or if a man doth deflower the Kings wife or the Kings eldest daughter being vnmaried or the kings eldest sonne and heires wife or if a man doe leuie warre against our Lord the king in his Realme or be adherent to the kings enemies in his Realme giuing to them aid and comfort in his Realme or else where and thereof be probably attainted of open deed by people of their owne condition And if a man do counterfeit the Kings great Seale or his priuie Seale or his money which offences Bracton doth terme Crimen falsi And if a man bring false money into this Realme counterfeit to the money of England knowing the money to be false Bracton de Corona cap. 3. to marchandise or make paiment in deceit of our Lord the King and his people And if a man kill the Chauncellor Treasurer or the Kings Iustice of the one Bench or the other Iustices of Eire and of Assises and all other Iustices assigned to heare and determine beeing in their places doing their Offices And it is to bée vnderstood that in the cases aforesaid it ought to bee adiudged Treason which extendeth to our Lord the King and his royall Maiestie And of such Treason the forfeiture of the escheat doth appertaine to our Lord the King as well of the lands and tenements holden of others as of himselfe And moreouer there is another manner of Treason Petit treason that is to say When a seruant killeth his Master or a wife her husband or when a secular or religious man killeth his Prelat to whom he oweth faith and obedience And such manner of Treason giueth the escheats to euery Lord of his owne fée And because many other cases of like Treason may happen in time to come which a man cannot thinke of nor declare at this present It is accorded that if any other case supposed to be treason that is not before specified doth happen of new before Iustices the Iustices shall stay without proceeding to iudgement of Treason vntill the case be declared and shewed before the King and his Parliament whether it ought to be adiudged Treason or other Felonie And in case any man of this Realme doe ride armed openly or secretly with people armed against another for to kill or rob him or to take and detaine him vntill he hath made fine and ransome to be deliuered it is not the King or his Counsels wil that in such case it shall be adiudged Treason but it shall be
ought not to let him goe but the towne where the Constable dwelleth shal be charged with the kéeping of him vntill the next Gaole deliuerie Prisoner by matter of record 24 The law hath two seuerall respects to two sorts of prisoners whereof the one is prisoner by matter of Record and the other by matter in déed A prisoner by matter of Record is when one that is present in Court is committed to prison by the Court. In this case if the kéeper of the prison hath not this prisoner alwaies readie when the Court will send for him Fi. Cor. 466 or else doe shewe a reasonable cause why he cannot haue him the Court will iudge this an escape by the Kéeper without further inquitie But if the Kéeper of the prison bee in this case examined by the court of his prisoner 39 H. 6. 33. and he will say nothing the Court will adiudge it a voluntarie escape Fi. Cor. 352 25 If it be found in the Coroners Roll that one did flie to the Church Escape by a towne and no abiuration is found in the same Roll in this case the court will adiudge an escape vpon the whole towne without further presentment A man killed beeing in carrying to the Gaole And if a man be apprehended for felonie in a towne Fi. Cor. 346 and carried towards the Gaole by certain of the same towne and if he doe resist them whereupon they doe kill him in this case it shal be adiudged an escape vpon that town for in that hee was not safely carried to the Gaole attainted of felonie the king doth loose his escheats 26 When the Deciners doe present that a felon is apprehended for felony Escape by the Sherife and deliuered to the Sherife it will be adiudged an escape if they doe not declare to which Sherife he is deliuered and name him so that his rolls may bée searched and seene whether the prisoner came within the charge of the Sherife Fi. Cor. 345. and if it be not found how he came out of the Sherifs ward according to the law of the Realme an escape shal be adiudged vpon the Sherife 39. H. 6. 33. 27 It is vsed in the Kings Bench A Coroner sent to the Marshalsey to enquire c. to send a Coroner once or twice euery Terme to the Marshalsey to see all the prisoners that be committed to the marshall by matter of Record and if any of them be wanting cannot be found there to set his name in a booke and to informe the Iustices thereof and then the Court will examine the Marshall thereof and if he cannot sufficiently excuse himselfe the Court will record escapes vpon him for euery of them 21. As p. 12. 28 And touching those which bee prisoners of Record Confessing auoiding of an escape the Kéeper of the prison cannot trauerse the escape but confesse and auoyd it as in alleadging that the prison was burnt or broken by the Kings enemies or by saying that he which is supposed to be escaped is not the same prisoner which was committed to him 29 Prisoner by matter in fait is where one is prisoner by arrest onely Prisoner by matter in fait viz. by arrest whether it be by the Sherife the Constable or any other and he doth escape there the Escape shall bee presented before he shall aunswer vnto it And this presentment ought to be before the Iustices of the Kings Bench the Iustices in Eire or some other Iustices that haue authoritie to enquire thereof Before whom an escape shall be presented As it appeareth by the Statute of Westminster 1. the words whereof be these It is ordained St. 3. E. 1. 4. that nothing shall be demanded nor taken nor leuied by the sherife nor by any other for the escape of any theefe or felon vntill it shal be adiudged by the Iustices in Eire And he that shall doe otherwise shall restore to him that paid it so much as he hath receiued and to the King as much And likewise by the Statute of 31. Ed. 3. St. 31. E. 3. 14. it is prouided That the Escape of felons and Clerkes conuict shall bee adiudged by the Iustices and by their viewe leuied And though the foresaid Statute of Westminster the first doth not make mention of any but of Iustices in Eire 21 As p. 12. 27. As p. 1. yet it doth also extend to the Iustices of the Kings Bench because the Kings Bench is in Eire and higher then an Eire for if the Iustices in Eire doe sit in a Countie and the Iustices of the Kings Bench come thither the Eire shall cease Iu. of peace and Coroner shall enquire of escapes 30 And by the Statute of 1. R. 3. St. 1. R. 3. 3. Iustices of Peace may enquire of all manner of Escapes of euery person arrested and imprisoned for felonie And by the Statute of 3. H. 7. St. 3. H. 7. 1. They may enquire of the escape of any that hath committed murder and make certificat thereof into the Kings Bench. And also by the said Statute of 3. H. 7. the Coroner vpon the viewe of the dead body may enquire of the escape of the murderer for if he doe commit the murder in the day and escape the towne shal be amerced And also the Coroner shall deliuer his Inquisition therof to the Iustices at the next Gaole deliuerie of the same Countie Trauerse to a presentment of an escape 31 Vpon an escape for the which no fine is to be paied Fi. Cor. 291 328. 346. but an Amerciament he or they which be charged therewith shal haue no Trauerse to the presentment thereof Quia de minimis non curat lex Escapes inquirable in Leetes and Turnes 32 Although Escapes of felons be at this day inquirable in Léetes and Sherifes Turnes yet it shall not be leuied vntill it be adiudged before the Iustices for that should bee contrarie to the foresaid Statute of Westminster 1. The penalties of escapes 33 The penaltie of him which doth voluntarily suffer one arrested for felonie to escape is the forfeiture of all that he hath because it is felonie The penaltie of him which doth suffer a negligent escape of a felon is to pay a fine The penaltie for the escape of him which was neuer arrested is but an amerciament And if any doe suffer him that is attainted of felonie negligently to escape he shall pay to the King for a fine an hundred pounds And if the partie escaping were but indicted and not attainted then he shall paie to the King for a fine a hundred shillings If one which is not indicted nor taken with the manner nor apprehended at the suit of the partie 42. As p. 5. but onely taken by a straunger for susption of felonie do escape there shal no penaltie nor punishment follow thereof But yet if after the same escape he
action sute bill plaint or information sued commenced or preferred shall by such displacing or death be abated discontinued or ended But it shall and may be lawfull to and for the Clerke for the Peace next succéeding in the saide Countie to prosecute pursue and follow all and euery such action bill plaint sute and information for the causes aforesaid so hanging and depending in such maner and forme to all intents and purposes as that Clerke of the Peace might haue done which first commenced or preferred the said sute bill plaint or information 8 Although the whole Hundred where such robberies and felonies are committed with the liberties within the precincts thereof are by the said two former statutes charged with the answering to the partie robbed his dammages yet neuerthelesse the recouerie and execution by and for the partie or parties robbed is had against one or a very few persons of the saide inhabitants and he and they so charged haue not héeretofore by Lawe had any meane or way to haue any contribution of or from the residue of the saide Hundred where the said robbery is committed to the great impouerishment of them against whom such recouerie or execution is had for the remedy whereof by the saide statute of An̄ 27. Eliz. St. 27. El. 13 it was enacted That after execution of dammages by the partie or parties so robbed had it shall and may be lawfull vpon complaint made by the partie or parties so charged to and for two Iustices of the Peace whereof one to be of the Quorum of the same Countie inhabiting within the saide Hundred or neare vnto the same where anie such execution shall be had to assesse and taxe ratably and proportionably according to their discretions all and euerie the Townes A remedy for an equall contribution Parishes Villages and Hamlets as well of the saide Hundred where any such robberies shall be committed as of the Liberties within the saide Hundred to and towards an equall contribution to be had and made for the reliefe of the saide inhabitant or inhabitants against whom the partie or parties robbed before that time had his or their execution And that after such taxation made the Constables Constable Headboroughs or Headborough of euerie such Towne Parish Village and Hamlet shall by vertue of this Act haue full power and authoritie within their seuerall limites ratably and proportionably to taxe and assesse according to their abilities euerie inhabitant and dweller in euerie such Towne Parish Village and Hamlet for and towardes the paiment of such taxation and assessement as shall be so made vpon euery such Towne Parish Village and Hamlet as aforesaide by the saide Iustices And if any Inhabitant of any such Towne Parish Village or Hamlet shall obstinately refuse and denie to pay the saide Taxation and assessement so by the said Constables Constable Headboroughs or Headborough taxed assessed then it shall and may be lawfull to and for the said constables headboroughs euery of thē within their seuerall limits iurisdictions to distraine all and euery person and persons so refusing and denying by his their goods and chattels the same distresse to sell and the mony therof comming to retaine to the vse aforesaid And if the goods or chattells so distrained and solde shall be of more value than the said Taxation shall come vnto then the residue of the said money ouer and aboue the saide Taxation shall be deliuered vnto the said person or persons so distrained Deliuering the contribute money 9 All and euery the saide Constables and Headboroughs St. 27. El. 13 after that they haue within their seuerall limites and iurisdictions leuied and collected their said rates and summes of mony so taxed shall within ten daies after such collection pay and deliuer the same ouer vnto the said Iustices of Peace or one of them to the vse and behoofe of the saide Inhabitant or Inhabitants for whom such rate taxation or assessement shall be had or made as aforesaide Which money so paied shal by the Iustices or Iustice so receiuing the same be deliuered ouer vpon request made vnto the saide Inhabitant or Inhabitants to whose vse the same shall be collected Leuying of cantribution 10 And the like taxation assessement leuying by distresse and payment St. 27. El. 13 as aforesaide shall be had and done within euerie Hundred where default or negligence of pursute and fresh sute shall be for and to the benefite of all and euery Inhabitant or Inhabitants of the same Hundred where such default shall be that shall at any time héereafter by vertue of this Act haue any dammages or money leuied of them for or to the paiment of the one moitie or halfe of the mony recouered against the said Hundred where any robberie shall be hereafter committed No penaltie where any of the offenders be apprehended 11 Prouided that where any robberie is St. 27. El. 13 or shal be hereafter committed by two or a greater number of malefactors and that it happen any one of the said offenders to be apprehended by pursute to be made according to the saide former mentioned Lawes and Statutes according to this present Act that then and in such case no hundred or franchise shall in any wise incurre or fall into the penaltie losse or forfeiture mentioned either in this present Act or in any the saide former statutes although the residue of the saide malefactors shall happen to escape and not to be apprehended Any thing in this statute or in the said former statutes to the contrary notwithstanding Which saide Braunch doth in some sort qualifie part of the foresaid statute of Winchester for by the saide statute Col. 7. fol. 7 the Country must agrée for the saide robberie within halfe a yéere or else they shall be answerable for the bodies of the saide offendors which is of all the offendors But by this statute it is sufficient if they take any of the offendors although not all St. 27. Eli. 13 12 Prouided also Within what time the sute shal be commenced That no person or persons héereafter robbed shall take any benefite by vertue of any the saide former Statutes to charge any Hundred where any such robberie shall be committed except hée or they so robbed shal commence his or their sute or action within one yeere next after such robberie so to be committed St. 27. Eli. 13 13 No huy and crie In what maner huy and crie shal be made or pursute héereafter to be done or made by the Country or inhabitants of any Hundred shall be allowed and taken to be a lawful huy and crie or pursute vpon or after any of the saide felons or offendors except the same huy and crie and pursute be done and made by horsemen and footmen Any vsage or custome to the contrary notwithstanding St. 27. El. 13 14 No person or persons that shal hereafter happen to be robbed
iudgement shall be giuen that the approuer shall be hanged And in like sort it is Fi. Cor. 456 if an approuer doe appeale seuerall persons in seuerall counties and processes be awarded against them vntill some of them be attainted and some of them depend in processe not attainted and the Iustices be informed by credible persons of the same countie wherein they were appealed that there be no such men to their knowledge in rerum natura the approuer shall be hanged An approuer did appeale two men in London and proces was awarded against them and it was returned that there were no such men dwelling in the city of London and the approuer agréeing to the same returne Fi. Cor. 460 saide that they were dwelling within the city of Lincolne and he was not thereunto receiued but was adiudged to be hanged So that if there be any falshood or lying in the approuer be it before his approuement or after and that the court do perceiue it they will take his appealing from him and adiudge him to be hanged And if they do otherwise Approuement after pleading not guiltie it is more of fauour than of right 12. Ed. 4. 10 for of fauour the court may allow the prisoner to waiue his plea of Not guiltie and to confesse the felonie and to become an approuer 21. H. 6. 35 And if an approuer doe appeale one who by his owne confession is out of the Realme he shall be hanged for the appellée cannot be attainted at his sute for though he should be outlawed yet he may reuerse it at his returne for that cause 6 When a prisoner vpon his arraignement doth confesse the felonie An Approuers othe and praieth a Coroner which is assigned vnto him by the court he must be sworn in the same court before his departing to appeale of all felonies and treasons which he doth knowe and the court shall appoint him a number of daies wherein to make his appeale in the which daies and in euery of them hée ought to appeale for if thrée dayes be appointed and in two of them he doth appeale 12. Ed. 4. 10. 26. As p. 19. Fit Cor. 439 and the third day he will affirme to the Coroner that he can say no more and the Coroner doth report the same to the court iudgement shall be giuen that he shall be hanged 7 An approuer shall haue wages of the King euery day that is assigned him by the court to approue in viz. a penny a day And some do affirme An Approuers wages that he shall haue no wages Fi. Cor. 439 vntill he hath made his proofe by vanquishing some appellée in battell or by conuicting him by verdict and then he shall haue wages of the King for euery day 8 When a Coroner is assigned to an approuer An Approuer set at liberty the approuer must he let out of prison to the intent that hee may approue or appeale of his owne frée will being at liberty without any dures for if it be by dures when he commeth againe before the Iustices hée may rehearse his appeale and disauow it for that cause which shal be tried by the examination of the Coroner vpon his othe Fi. Cor. 118 169. 255. And if the Coroner do say that the same appeale was not by dures the appeale shall stand and the approuer shall be hanged And when the approuer hath made his appeale before the Coroner he shall come againe before the Iustices and rehearse his appeale before them for they will not reade his appeale vnto him and if hée doe faile in the rehearsall of his appeale 26. As p. 19 in anie word otherwise than the Coroner hath recorded it he shall be hanged as if in his rehearsall he doe say that there was a blacke horse stollen where it it was recorded by the Coroner a redde Horse An Approuers appeale must be certaine For the Approuer must declare the thing certainely with all the circumstaunces thereof without any varying or alteration Bracton and he must know the person whom he hath appealed when hée is brought into question for if he know him not it is to be presumed that they were neuer companions Processe against the appellees 9 After an Approuer hath made his appeale before the Coroner if the appellees be dwelling in the Countie where the appeale is made the Coroner hath authoritie to award processe against them vntill the Exigent and to direct his processe to the Shirife to serue But so he cannot doe 29. Ed. 3. 42 if the appellées be dwelling in another countie for then he must not award processe against them but referre it to the iustices before whom he is to record the same appeale And they may award processe as the Iustices of the Kings bench and Iustices in Eire may do who may award processe by the common law and Iustices of Gaole Deliuerie by the statute De Appellatis made Anno 28. Ed. 1. which hath ordained St. 28. Ed. 1. That whosoeuer shal be appealed by any Approuers remaining in the Gaoles which the Iustices of Gaole deliuerie shall deliuer in what places soeuer of the Realme the persons appealed shall remaine immediatly the Shirife of that countie where such persons appealed be conuersant or may be found shall be commaunded by the Kings Writs vnder the testimonie of the same Iustices that he shall apprehend those persons appealed and conuey them to the Gaole where the approuers by whose appeale they be apprehended be imprisoned And the Shirife or Gaoler of that prison shall receiue them and there they shall answer before the same Iustices And if they put themselues vpon the country the Iustices shall send by a iudiciall Writ to the Shirife of the Countie where the felonie was committed that hée shall returne an Enquest before them at the place where the approuers do remaine at a certaine day Pleas for the Appellee against the Approuer 10 It is a good exception for the appellée in his owne defence to alleage against the approuer that the approuer is a person attainted of treason 11. As p. 27. Fi. Cor. 387 443 21. Ed. 3. 17 or felonie and to shew how viz. either by verdict outlawrie or abiuration or in any other manner for such a person is out of the Lawe and so disabled to appeale or accuse others And the same lawe is if the approuer be a clerke conuict for hee commeth now too late to confesse a felonie 17. Ed. 3. 13. when hée hath pleaded not guilty thereunto before which was found false at his owne sute and therefore it cannot be intended that the thing hée saith now is true And although hée had his clergie vpon confession of the felonie An Approuer conuict of felonie yet hée shall not now become an approuer for that he saide nothing at that time when hee ought to haue approued and therefore the Lawe cannot intend that hée hath
was established That if any Felon or Felons doe robbe or take away any money goods or cattels from any of the kings subiects from their person or otherwise within this Realme and thereof be indicted and after be arraigned of the same Felony and found guilty thereof or otherwise attainted by reason of Euidence giuen by the party so robbed or owner of the said money goods or cattels or by any other by their procurement then the party so robbed or owner shal be restored to his said money goods and cattels Before which statute the party robbed or owner of the goods stolne could not haue had restitution without suing of an Appeale against the Felon Euidence giuen by a stranger 4 If the seruant be robbed the master may giue euidence against the Felon and haue restitution by this statute if so be that the goods robbed were the goods of the master for the words of the statute be The party so robbed or owner Also if he that was robbed doth not giue Euidence himselfe but procure another to giue the euidence this is sufficient by the words of the statute to obtaine restitution of his stolne goods There must be two accusors to giue euidence in Treason 5 By a Braunch of a statute made Ann̄ 5. Ed. 6. St. 5. E. 6. 11 it was ordained That no person or persons shall be indicted arraigned conuicted condemned or attainted for any Treasons that now be or hereafter shal be vnlesse the same offendor or offendors be therof accused by two lawfull accusors which said accusors at the time of the arraignment of the party accused if they be then liuing shal be brought in person before the party so accused and auow and maintain that which they haue to say against the said party to proue him guilty of the Treasons or offences contained in the bill of indictment layed against the party arraigned vnlesse the said party arraigned shall willingly without violence confesse the same But after by the statute of An. 1. 2. P. M. St. 1. 2. P. M. 10. T. 2. 3. P. M. Dyer 132. it was ordained That all tryals to be had awarded or made for any Treason shall be had and vsed onely according to the due order and course of the common lawes of this Realme and not otherwise Quaere whether the said stat of 1. 2. P. Ma. do take away the force of the foresaid stat of 5. Ed. 6. which it is thought it doth not but that the said statute of Anno 5. Ed. 6. doth remaine in force séeing it was ordained onely for the accusation or euidence and not for the time place or order of the triall Euidence in high Treason 6 If there be an accusor of high Treason of his owne knowledge 1. M. Dy. 98. or of his owne hearing and he doth vtter it to another that other may well be an accusor or witnesse And likewise if the second man do vtter it to the third and the third to the fourth man euery of them may be an accusor or witnesse Euidence against abettors to offēces 7 By the statute of Anno 5. Eliz. St. 5. El. 1. it is ordained That no person or persons shal be indicted for assisting aiding maintaining comforting or abetting of any person or persons for any of the offences mentioned in the said statute in extolling setting forth or defending of the vsurped power and authority of the bishop of Rome vnlesse he or they be thereof lawfully accused by such good and sufficient testimony or proofe as by the Iury by whom he shall be so indicted shal be thought good lawfull and sufficient to proue him or them guilty of the said offences S. Treasons 15. 8 By the Statute made Anno 31. Eliz. St. 31. Eli. 4. it is ordained Euidence on the def part That such person and persons as shall bée impeached for any offence made Felony by that Statute béeing intituled an act against imbesilling of armour habiliments of warre and victuals shall by vertue of this act be receiued and admitted to make any lawfull proofe that he can by lawfull witnesse or otherwise for his discharge and defence in that behalfe any Law to the contrary notwithstanding S. Felonies by Statute 33. ⧠Verdict 1 AFter the prisoner hath pleaded not guilty hath béen thereupon arraigned and euidence giuen against him in open court before the Iudges and the Iury the same Iury do depart from the barre to consider of their euidence proofes which being done they return again to the court to giue vp their verdict which as the issue of not guilty is generall so may they deliuer their verdict guilty or not guilty if they will and that their euidence be cleare and do induce them therunto But it is not alwaies requisit to giue a generall verdict for if the fact whereupon the prisoner was arraigned be such that the Iury doe stand in doubt whether it be felony or not they shall best discharge their consciences to giue a speciall verdict that is to say a verdict at large viz. a verdict declaring at large the whole truth of the matter which may be done as well in case of felony as in an assise A verdict at large in felony or action of Trespas as they may deliuer their verdict 44. E. 3. 44 Fi. Cor. 284 286. 287. 47. Ass p. 31 that the prisoner which is arraigned for the killing of a man did slay the same man in his owne defence for he that is arraigned must plead not guilty séeing that in his plea he cannot iustifie the killing of a man and then the Iury in their verdict may declare the whole circumstance of the fact and conclude that he killed him in his own defence for it is not a sufficient verdict for the Iury to say that the prisoner killed the man in his owne defence but they must shew the cause manner and circumstance of the fact that the court may discerne iudge whether the fact which the prisoner hath committed be felony or not whether the prisoner standeth in the Kings mercy or not and whether hee shall loose his goods or not The verdict lesse penall thē the indictment 2 As a Iury may giue a speciall verdict touching a man that killed another in his own defence so may they giue a speciall verdict where he that is arraigned killed another by misfortune Or where he which cōmitted the homicide was not of perfect memory or deafe dumbe or an infant without discretion Or that the thing which was stoln was not worth aboue x. d. Or that he which is indicted arraigned for committing of a murther T. 26. H. 8. 5 P. 9. El. Dy. 261. Pl. com 101 Br. Cor. 221 Br. Appeale 122. did kil the man by chance medley or in his owne defence and not of malice prepenced And if two be indicted for cōmitting of a felony do plead
the sayd auntient law for they would not deliuer the prisoner vnto the Ordinarie vntill hée was indicted and also arraigned and that it was enquired by an Enquest of Office whether hée were guiltie or not In which case if he were found not guiltie they would discharge him and if he were found guiltie his goods should bée forfeited his lands taken into the Kings hands and his bodie deliuered to the Ordinarie And the cause of chaunging this law was that the Ordinarie might take greater charge of the prisoner being now indicted than before and to benefit the King by the forfeiture of the prisoners goods and to bréed a greater feare in Clerkes after that they should not offend Which alteration was obserued for law vntill the raigne of King Henry the sixt at which time the Iudges would not admit a prisoner to demaund his Clergie vpon his arraignment but put himselfe first to answer to the Felonie and if hée were found guiltie of the Felonie at his owne suit then to heare him demaund his Clergie and not before 3. H. 7. 1. 12. which is a more reasonable law than the former for before hee should haue forfeited his goods vpon an Enquest of Office whereunto hée could haue no challenge and now he shal be tryed at his owne suit and shall haue his challenge to the Enquest and then if he be found guiltie hée shall forfeit his goods and for the sauing of his life and his lands hée is to pray his Clergie Which hath bin vsed euer sithence and is obserued for law at this time vnlesse the prisoner himselfe will refuse the benefit thereof and pray to haue his booke without hearing the verdict As if a prisoner after an Enquest is charged vpon him Clergy demanded before verdict and before their returne againe will say that he is a Clerke and desire his booke at his perill in this case the Court hath allowed him his Clergie and yet after hath receiued a verdict as well in fauour of life as in fauour of the King for if he be found not guiltie the prisoner shall be discharged and if he bée found guiltie the King shall haue his goods as forfeit And the request of his booke in that case is more for the prisoners disaduantage than the Kings for it may bée a meane that the Iurie vnderstanding thereof will the rather find him guiltie of the felonie than otherwise they would haue done 26. Ass p. 19 33 If a prisoner doe say that hée is no Clerke Denying to be a Clerke and yet is yet after if before iudgement hée doe pray his Clergie where Clergie is allowable by the law and then doth read as a Clerke hée shall haue his Clergie notwithstanding his former words But it hath béene a question Whether clergie is allowable without request whether the Iudges ought to allow any man his Clergie without praying of it though the offendor be indicted by the name of Priest Fi. Cor. 254 Clerke c. or that by some other meanes the Iudges themselues doe know that hée is a Clerke or that without praying of his Clergie they shall giue iudgement of death against him And in this case some doe affirme that if the prisoner doth not pray his Clergie hée shall not haue it though the Iudge doth vpon his owne priuat knowledge vnderstand that hée is a Clerke for the Iudge must in those cases procéed according to his iudiciall knowledge and as by record things bée found proued and tryed before him and not according to his owne naturall knowledge And they bée the rather so induced to thinke by the words of the aforesayd statute of 1. Edw. 6. St. 1. E. 6. 12 which ordayned That a Péere of the Realme shall vpon request haue the benefit of his Clergie and so inferre that without request he shall not haue it nor any other without request which is to haue it vpon request 34 The temporall Court shall be Iudge to allow or disallow of Clergy Who shall allow of clergy and not the Ordinary 15. H. 7. 9. for it was entred into the roll of the court legit vt Clericus ideo tradatur Ordinario by which words it doth appear that the court doth giue allowance therof for the felony being the act which is cōmitted is temporal and the Iudge which did commit him to the Ordinary is temporal so is the authority wherby he did commit him And the Ordinary should haue bin punished if before the stat of 18. Eli. St. 18. El. 6. he had letten to baile or at liberty any prisoner cōmitted to him or if he had imprisoned him too straitly or too easily or would not haue suffered him to haue made his purgation and in that case the king might haue sent his Writ vnto the Ordinarie commaunding him to suffer his prisoner to make his purgation or might haue pardoned him or set him at liberty Fitz. Cor. 44. 17 without making his purgation and if one read as a Clerke and yet the Ordinarie will refuse him notwithstanding hee shall haue the benefite of his Clergie and on the other side if the Ordinarie will say that hee doth read as a Clerke whereas in truth hee doth not read as a Clerke the Court must giue iudgement that hée shall bee hanged and cause execution to bee done of him And further to prooue that the Temporall Court is Iudge of the reading the Court doth appoint the verse or place to the prisoner to read and not the Ordinarie And also doth set a fine vpon the Ordinary 34. H. 6. 49. 21. Ed. 4. 21. 9. E. 4. 28. for saying that the prisoner doth read as a Clerk where he doth not which the court could not do if the reading were referred to the Ordinarie A felon doth read vnder the gallowes 35 If a felon doth not read as a Clerke before the Iudge at the time of his arraignment whereupon he is adiudged to be hanged yet in fauor of life 34. H. 6. 49. if hée arraignment whereupon he is adiudged to be hanged yet in fauor of life if hée do demand it at another time vnder the gallows if any of the Iudges do passe that way and doth read as a Clerke he shall haue the benefit of his Clergie although there be no Ordinary there to demaund him But this is in case where the felon is arraigned and iudged before the Iust of the K. Bench 3. 4. El. Dy. fo 205. or else in case where he is arraigned and iudged before the Iust of gaole deliucrie and it is entred by the Court non legit vt Clericus and then for some cause he is repried vntill the next Session and then againe he is demanded if he can read and then he can and doth read in this case he shall haue his Clergy in fauor of life And though he was taught to read in the gaole this shall saue his life but the
the appeale of the plaintife and then it shall be inquired by the Visne where the Felony was committed by the people of that County where the appeale is brought except it bee brought in London for London hath such a priuiledge that they shall not bée drawne to appeare vpon Iuries out of the Citie and the Kings Iustices cannot goe into the Citie and take the same by Nisi prius because it is but an Enquest of Office 1. H. 4. 5. 2. R. 3. 12. and therefore in that case they doe inquire of it by people of the County where the Felon was taken and from thence shall the Visne come But first the Court is to inquire of the Defendant in the appeale Fit Forfeit 15. if hée doe clayme any propertie in the goods or not and if hée clayme nothing therein then it must enquire if the goods were the plaintifes at the time of the Robbery committed and moreouer inquire of the Fresh suit 5 By the common Law there was no helpe for the party robbed by indictment of the Felon to recouer his goods againe or to haue restitution of them Restitution vpon attainder by indictment for although the enquest which tried the Felon vpon his arraignment would after they had found him guilty of the Felony Fi. Cor. 460. haue said that the party robbed had made Fresh suit yet that would not haue auailed to haue procured him restitution of his goods And therefore to redresse that enormitie there was a statute made Anno 21. H. 8. by which it was enacted St. 21. H. 8. 11. That if any Felon or Felons hereafter doe robbe or take away any money goods or cattels from any the Kings Subiects from their person or otherwise within this Realme and thereof the said Felon or Felons be indicted and after arraigned of the same Felony and found guilty thereof or otherwise attainted by reason of euidence giuen by the party so robbed or owner of the said mony goods and cattels and that as well the Iust of Gaole deliuery as other Iustices before whom any such Felon or Felons shal be found guilty or otherwise attainted by reason of euidence giuen by the party so robbed or owner or by any other by their procurement haue power by this act to award from time to time Writs of Restitution for the said money goods or cattels in like manner as though any such Felon or Felons were attainted at the suit of the party in appeale And so by force of this Statute the party robbed shall haue restitution of his stolne goods vpon euidence giuen by him or by any other by his procurement against the Felon though he neuer made any fresh suit S. Euidence 3. 4. Appeales 55. ⧠Dammages in Appeale 1 IVstice and reason doe require that when a mans life his fame and credit his lands his goods the disheritance of his posterity the corruption of his blood and all that he hath in this world to forfeit hath bin put in hazard and brought into question and triall without iust desert or other ground but only vpon the malicious accusation of some one or moe persoÌ„s and that he is found a true and lawfull man duly acquit by the country of the offence whereof he was appealed that he should haue recompence for it against his false accusor and if his accusor be not sufficient then against him or them that did procure or abet him to pursue the appeale And therefore the common law did giue dammages to the defendant in an appeale 48. Ed. 3. 22 and assigned him a meane to recouer them when he was acquit of the felony But because the dammages which were to be recouered against the procurors or abettors were to be recouered by writ originall viz. by a writ of Conspiracy and not otherwise which was not so spéedy a remedy as the great malice and wickednesse of the offence required the stat of West 2. was made for the quicker redresse thereof AnÌ„ 13. Ed. 1. the words whereof be these St. 13. E. 1. 12 viz. For as much as many through malice intending to grieue others do procure false appeales of homicide and other felonies to be sued by appellants hauing nothing wherewith to satisfie the king for their false appeale nor to answer to the party damages It is ordained that when any which is appealed of felony imposed vpon him doth acquite himselfe in the K. Court in due manner either at the appellants suit or the kings The punishment of the appellant and abettors wheÌ„ the appellée is acquit the Iustices before whom the said appeale shal be heard and determined shal punish the appellant by one yeres imprisonment and neuerthelesse such appellant shall yéeld to the appellée damages by the Iust discretion hauing respect to the imprisonment or arrest that the party hath sustained by reason of such appeale and to the slander which he hath receiued by the imprisonment or otherwise also he shal pay a grieuous fine to the K. And if the appellants be not able to recompeÌ„ce the damages inquiry shal be made by whose abetmeÌ„t the appeale was maliciously coÌ„menced if the appellée desire it And if it be found by the same Enquest that any man is aâ—ettor through malice he shal be distrained by a iudiciall writ to appeare before the I. at the appellées suit and if he be lawfully conuict of such abetment by malice he shall be imprisoned and restore dammages as is aforesaid of the appellant In an appeale of the death of a man there shall no Essoine lie for the appellant for any cause No Essoine for the Appellant in appeale of death in whatsoeuer court the appeale shal be determined The appeale must be commenced vpon malice 2 And whereas the words of the foresaid stat of West 2. be St. 13. E. 1. 12 For as much as many through malice it doth thereby appeare that if the defendant in an appeale be to recouer dammages it ought to be in respect that the appeale was grounded rather vpon malice then vpon good matter 40. Ed. 3. 41. 22. Ass p. 39 32. H. 6. 2. And therefore if the defendant were indicted of that Felony wherof the appeale was sued before the suit of the appeale although the def be after acquit thereof yet he shall not recouer dammages because it shal be intended that the indictment induced him to bring the appeale and not malice But the law is méere contrary if he were not indicted vntill after the appeale commenced Or if there be any such variance betwéene the appeale and the indictment that the acquitall of him vpon the one is not the acquitall of him vpon the other as if he be indicted as principall and appealed as accessory vel e conuerso And yet it is otherwise 14. H. 7. 2 if the variance be not in a matter of substance for such a variance shal not so preiudice but that the acquitall
and the disseisée may at his choyce either haue an Assise and recouer double dammages and the defendant shal be amerced or else the K. vpon complaint shall redresse the matter If lands be graunted by the Kings Patent without any title sound by Enquest St. 1. H. 4. 8. or where the Kings entrie is not giuen by the law and if any be put out or disseised of his fréehold thereby this is an oppression And the partie put out shal haue a speciall Assise against the kings Patentée and recouer treble dammages Oppression by approuement of common 2 If the Lord of a Mannor wherein he hath certaine fréehold tenants and certaine neighbours do approue some part of the wasts woods or pastures of the same Mannor not leauing to his said tenants and neighbours sufficient common of pasture vnto their tenements or not sufficient and conuenient ingresse and regresse to the same this is an oppression of the same tenants and a disseisin of their common And the sayd tenants and neighbours or any of them may by force of the Statutes of Merton and West 2. St. 20. H. 3. 4 St. 13. E. 1. 46. bring an Assise of Common of pasture against the Lord who doth so approue and oppresse And if it be found by the Iurie that their ingresse and regresse were any thing hindered by the deforceors or that they had not sufficient pasture then they shall recouer their seisin by the view of the Iurors so that by their discretion and othe they shall haue sufficient pasture ingresse and regresse and the disseisors shall be amerced and render dammages which dammages by force of the statute of Anno 3. Ed. 6. St. 3. E. 6. 3. shall be trebled by the iudgement of the Court where such Assise and iudgement shall be had Oppression by surcharge of common And so it is if the Lord of a Manor doth surcharge the common with so many cattell Fitz. Admes 11. Common 29. as that his fréeholders or neighbours cannot haue sufficient common for their cattell as they had woont to haue or as they ought to haue belonging to their tenements this is an oppression and disseisin of their common and any of them may bring an Assise of Common of pasture against the said Lord and recouer his common and his dammages Inclosure of common by cause of vicinage is no oppression But if there be two Lords of two seuerall Mannors which haue two wasts adioyning parcell of their mannors Co. li. 4. 38. lying together without inclosure or seperation and yet the bounds of each mannor is well knowne by certaine méers and marks in which wasts the tenants of the one mannor and of the other haue reciprocally had and vsed common by cause of vicinage 13. H. 7. 14 M. 14 Eliz. Dyer 316. In this case one of those Lords may inclose against the other by that meanes vtterly take away his common by cause of vicinage from him though it hath béene otherwise vsed time out of the remembrance of man And this common per cause de vicinage is rather an excuse of a Trespasse when the cattell of the tenant of one Mannor do stray into the wasts of the other Mannor than any certaine inheritance for the tenants of one Mannor may not put their cattell into the wast of the other Mannor but they may come thither onely by escape and this inclosure is onely to preuent the escape of the cattell which is a lawfull act and no oppression For in the case aforesaid where the wasts of both the Mannors be adioyning together and that the one of them hath common with the other by cause of vicinage Co. li. 7. 5. and that the one village hath an hundred acres of common and the other but fiftie acres of common Commoners shall charge common according to the quantity thereof in this case the inhabitants of the village which hath but fiftie acres of common can put no more cattell into their sayd common of fiftie acres than it will maintaine without hauing respect to the common in the said hundred acres for if they do it is an oppression and wrong nece conuerso for the originall cause of this common by cause of vicinage was not for profit but for preuenting of suits in a Champion countrey in respect of reciprocall escapes from one towne to another 3 It appeareth by the preamble of the statute of Marlebridge that they who tooke distresses of their tenants or neighbours for rents supposed to bée due to them or for any trespasses done to them and after did driue the same distresses forth of the countie where they were taken to be impownded in another countie were accounted to do it to oppresse them whose cattell they so did distrain and impownd and the same was also adiudged an act done against the peace whereupon for the eschewing of such oppressions by the same statute and also by the statute of West 1. St. 25. H. 3. 4 St. 3. E. 1. 16. it was ordained Oppression by distresses That no man shall cause a distresse to be driuen forth of the Countie wherein it was taken And for the auoiding of the like oppressions vexations and troubles by a statute made Anno 1. St. 1. 2. P. M. 12. 2. P. M. it was enacted That whosoeuer shall driue any distresse out of the Hundred Rape Wapentake or Lath where it was taken except it be to a pownd ouert within the same shire being not aboue thrée miles distant from the place where it is taken or shall impownd in seuerall places goods distrained for any cause at one time whereby the owner shall be constrained to sue seuerall Repleuies for the deliuerie of the same distresses shall forfeit to the partie grieued for euerie such offence fiue pounds and treble dammages And whosoeuer doth take for kéeping in pownd pondage Pondage money or the impownding of a whole distresse aboue iiij d. or doth take so much where lesse hath vsually béen taken shall forfeit to the partie grieued fiue pounds and so much as hée taketh ouer the said iiij pence And because the law hath deuised that one neighbour may distraine the goods of another for his debt duetie or dammages sustained and that the same distresse shall be reasonable according to the quantitie of the sayd supposed debt or dammages and that then the same distresse shall bée put in a pownd ouert sub custodia legis vntill it bée decided whether the same was taken vpon iust cause or not and not to the end that one neighbour should by distraining vniustly oppresse another or demaund of him that which is not due or put him to further charge or trouble than the necessitie of that cause for the recouerie of his owne debt or damages required therefore by the before mentioned statute of Marlebridge it was further established That if one neighbour take a distresse of another whereby he hath receiued
lesse without award of the Kings Court he shall make fine according to the quantitie of the trespas and neuerthelesse sufficient amends shal be to them which haue receiued losse by such distresse Distraining out of his fee. Or if one do distrain another to come to his Court which is not of his fée or vpon whom hee hath no iurisdiction by reason of his Hundred or Bailiwike or doe take a distresse without his fée or the place where he hath iurisdiction or bailiwike hee shall make fine according to the quantitie of his offence Excessiue distresse Or if one do take any vnreasonable excessiue distresses which is grieuous and more than the quantitie of the debt or damages this is an oppression an he shall be amerced 41. Ed. 3. 26 29. Ed. 3. 23. As a man auowed the distraining of 200. shéepe and 16. beasts for ij pence rent and he was amerced therefore for all that he tooke aboue vj. shéepe were adiudged an oppression and so vnlawful But if a man distraine for homage 28. Ass p. 50 42. Ed. 3. 26. Co. li. 4. 8. Fitz. Na. Br. 178. 27. Ass p. 51 28. Ass p. 50 the distresse cannot be too excessiue how many beasts soeuer he doth take for that homage is not valuable though for rent fealtie and other seruices it may be excessiue And in like sort Oppression by often distresse if the Lord of a Mannor or any other who hath rent issuing forth of certaine land do distraine the tenant of the same land diuers times for rent or seruices where none is behind vnpaid this is an oppression of the same tenant who is distrained for in this case the partie who claimeth this rent cannot distraine for rent séeing none was due to him but his distresse is onely taken to vexe the tenant of the land and so to oppresse him And therefore the sayd tenant may haue an Assise of Souent foits distresse against the same Lord and recouer dammages of him according to the losse he hath receiued by the same distresses viz. for not plowing or for not manuring his land Lib. in t 82. Co. li. 4. 8. or for taking no profit thereby But it is otherwise if the same seuerall distresses were taken for homage Seueral distresses for one thing And so it is if a man do distraine for rent or seruices or for any other thing Fit Nat. Br. 71. and depending a suit betwéene the parties for the same rent seruice or other thing he who did distrain doth distrain again for the same rent seruice or thing for the which he did distrain before the beasts or goods of him whose hée did first distraine this is an oppression of him whose goods be twice distrained For the redresse whereof hée may haue a writ of Recaption A writ of Recaption against him who so did distraine his goods twice for one cause whereby hée shall recouer dammages for his second distresse And also hée that did take the same distresse shall make fine to the King for his oppression and wrong though the first distresse were lawfully taken yea and though the rent or seruice for the which he did distraine were behind vnpayed or vndone séeing by the first distresse the cause being prooued true and lawfull hée might haue had returne of the goods or cattell which hee did distraine vntill hée had béene satisfied of the rent seruice or thing for the which hée did distraine But a man may distraine the cattell of him who bée eating of his corne or grasse Distresses for damages for t or doing any other hurt in his ground 47. Ed. 3. 7 so often as he shall find them doing hurt therein and it is no oppression or wrong so to do for he doth not distraine twice for one cause as in the former case but distraineth seuerall times for seuerall new offences 4 And euerie Trespasse which the law doth interpret to bee iniuriously committed vi armis may also fitly be termed an oppression for it is done vpon the offendors owne wrong without warrant of law St. 5. R. 2. â— As if one person doe enter vpon anothers land expell him out of the possession therof whereas his entry is not giuen by the law or doth enter with strong hand or multitude of people Fitz. Tresp 13. 45. 234 20. H. 6. 22. 9. Ed. 4. 28. 9. H. 6. 64. 21. H. 6. 5. 21. Ed. 4. 18. 9. Ed. 4. 29. 10. Ed. 4. 4. 21. Ed. 4. 4. 1. H. 7. 10. 37. H. 6. 36. 21. H. 7. 1â— 11. H. 4. 64. 20. H. 6. 14. 3. H. 6. 12. 10. H. 6. 16. 43. Ed 3. 13. 4. Ed. 3. 48 47. Ed. 3. 22 43. Ed. 3. 35 1. H. 5. 1. and not in peaceable manner this is an oppression And so it is Oppression by Trespasses if one person doe pull downe breake or impaire anothers house or any part thereof Or if one person doe fell cut downe or carrie away the Timber Trées or Wood of another Or if one person doe fell cut tread downe or carrie away the corne or grasse of another Or if one person doe with his cattell depasture feed or eat the corne grasse or hay of another Or if one person doe take and carrie away the money plate iewels houshold-stuffe cattell corne hay or any kind of goods of anothers Or if one person doe plough till eyre or digge the ground or soyle of another Or if one person doe mayme imprison wound or beat another or doth mayme wound or beat the seruant of another whereby he looseth his seruice Or if one person doe hunt chase or hawke in the frée Warren of another or doe take kill or destroy his game there Or if one person doe fish in the Pond Poole Mildam Stew or other seuerall fishing of another Or if one person doe breake the doue-house of another or destroy the flight of the doues of another Or if one person doe digge the Myne of Tinne Lead Stone Coale Grauell Sand Matle Chalke c. of another Or if one person doe pull vp take away the meerestones which by consent haue béen set betwéen his own ground and anothers In all and euerie of which cases the partie grieued may pursue an Action of Trespasse against the offendor and declare that hée committed any of the said offences vi armâ—s wherein if the defendant be attainted hée shall pay to the plaintife his dammages sustained and to the King a fine for that he hath done an oppression to one of his subiects and made an offence to the law Fit Nat. Br. 183. 4. Ass p. 3. 5 Euerie Nusance which one person doth to the land of another Oppression by Nusances wherein the owner hath an estate for the terme of life in tayle or in fée simple may also bée accounted an oppression for those Nusances be put in practise by the offendors onely will and by his owne open playne and manifest