Ports and such places which have Counsans of Pleas and also in Court Barons in which Courts is Iustice done according to Law c. And although they of the Cinque Ports ought to be empleaded of their Lands within the jurisdiction of the Cinque Ports yet that holdeth onely where the Tenant sheweth the same and taketh advantage thereof if he be impleaded in the Kings Courts of things which are within that jurisdiction but if the Tenant be sued in the Common Pleas for Lands within the Cinque Ports if the demandant doth recover by default or if the Tenant appeare and plead any matter which is found against him so that the demandant hath judgement for to recover the Land that judgement shall bind him for ever c. But the Tenant might have alleadged That the Land was within the Cinque Ports and by such Plea the Kings Courts should be outed of the jurisdiction c. And so it is of Lands within an ancient demeasne if a Writ be brought thereof in the Common Pleas if the Tenant appeareth and pleadeth and doth not take exception to the jurisdiction and the Plea be found against him so that the demandant recovereth the Tenant shall not reverse the judgement by a Writ of Errour because the Tenant might have taken exception to the jurisdiction of the Court and it should have been allowed c. But yet the Lord may reverse that judgement by a Writ of deceit and shall make the Land ancient demeasne as it was before c. And if one hath Counsans of Pleas in a Towne or in a Mannor and a Writ is brought in the Common Pleas of the same Land and the Tenant pleadeth and judgement is given against him the recovery is good for it is within the power of the King and the Writ of the Common Pleas doth take place there and if the Bayliffe or Lord doth not demand Cognusans the judgement is good But in another Action the Bayliffe shall have Cognusans for that the nature of the Lard is not changed and so see that where a man hath counsans of Plea c. it ought to be demanded by the Bayliffe or the Lord and the Tenant shall not demand the same if he be impleaded in the Kings Court but of the ancient demeasne there it behoveth the Tenant to shew the same and plead to the jurisdiction c. if he will have advantage thereof c. And so note that in the Cinque Ports there is such a liberty that the Lands and Tenements are pleadable there before the Barons c. and yet if one be impleaded at the Common Law of Lands within the Cinque Ports the Barons shall not have Counsans of the Plea but the Tenant may plead the same to the jurisdiction in abatement of the Writ c. The Court Baron NOte also that there is another Court which is called Court Baron in which Court the Suitors are the Judges and not the Steward and they hold plea of Contracts within the jurisdiction c. and yet it is said by some That the Defendant shall not shew that the Contract was made out of the jurisdiction and pray that the Plaintiffe be examined as in a Court of Pipowder The Judges of the Court Baron have Authority to hold plea before them of Debt upon Contracts or Detinue but not of detinue of Charters nor Actions of debt upon a judgement in a Court of Record but otherwise I thinke it is of a recovery in the same Court nor shall they hold plea of Maintenance forgery of false Deeds of deceit not of Decies tantum not of pleas of Accompts for they have not authority to assigne Auditors They shall not hold plea of Debt above the summe of forty shillings unlesse it be by prescription and they shall not hold plea of Free-hold by plaint but by a Writ of right they may But if a judgement be given of Free-hold upon a plaint it is said it is good untill it be reversed by a Writ of false judgement tamen quaere c. And note for what Suit a man shall be judged in a Court Baron and it is said That it is where a man is seised of Lands in Fee-simple and which he holdeth by service of Suit at the Lords Mannour that Suit is properly Suit-service and for such Suit he shall be judged in a Court Baron and for no other Suit as it is said c. And quaere also when erronious judgements are given how they shall be reversed viz. when by Writ of false judgement and when by a Writ of Errour And some say That in all Courts where the party might remove the plea by a Recordare upon a judgement given in such Courts a Writ of false judgement lyeth as in ancient Demeasne Court Baron County Court and Hundred but in other Courts which are of Record the plea shall be removed by a Certiorare and upon judgement given in such Courts which are of Record it shall be reversed by a Writ of Errour c. And if a man recovereth in a Court of Record by erronious judgement and Sueth not Execution some say That a Writ of Errour lyeth and the party shall have a Supersedeas if he will prey the same but if a man hath judgement in a Court Baron and taketh not forth Execution no Writ of false judgement lyeth Quaere the reason thereof and what the Law is in that case And note that sometimes the Sheriffe is Judge as in Reddisseisin Wast and Admeasurement and the Processe shall be served by the Baily as is said And note that the Sheriffe is an Officer â—o the Kings Court to execute the Processe thereof yet sometimes the Coroner is the Officer to the Court where defect is found in the Sheriffe c. so that he cannot by Law indifferently execute the Processe as for divers apparent causes yet if the Sheriffe dyeth the Processe shall not goe to the Coroner but shall stay till another Sheriffe is chosen c. And because the Sheriffe is an Officer appointed by the Law to attend the Kings Courts a man shall not take an Averment against the returne of the Sheriffe directly and the reasâ—n is because where Justice ought to be ministred and executed those who have the Government of the Law ought to repose trust and confidence in some person and if every one might averre against that which the Sheriffe doth then Justice should not be executed but should for ever be delayed c. The meanes and the remedy how a man may come to his due and to that which is wrongfully kept from him and that is by plea and this word is generall and hath divers effects implyed therein and may be divided into divers branches viz. Into pleas of the Crowne as appeales of Death Robbery Rape Felony and divers other things c. and into Actions reall whereby Lands Tenements Rents and other hereditaments are demanded as Writs of right Formed on c. Or Actions
who are not forbidden by the Law Infected Persons Iâ—iots Infants within age cannot accuse or be Plaintiffes without their Guardians nor Criminall Persons nor an Out-lawed exiled or banished Person nor a woman wayve nor a villaine without his Lord nor a Feme Covert without her Husband nor religious Persons without their Soveraignes nor Persons Excommunicate nor deafe nor dumbe Persons without their Guardians nor the Iudges of the Cases whereof they are Iudges nor any one who is nor of the Kings Allegiance so as he hath been more then forty daies within the Realme except Approvers who are suffered to accuse criminally people of his own condition in favour of the peace How lawfull men ought to complaine They ought in friendly manner to shew their offenders that is to say their Trespassours that they reconcile or amend themselves towards them and if they will not doe so and the Cause be Criminall then yee are to distinguish for if any one seeke revenge then it behoveth him to bring his Action by Appeale of Felony and if he seeketh only repaâ—ation of damages then he behoveth to bring his Action by Writ which is to containe the name of the King and of the Parties and the name of the Judge and of the County and the Plaint in the demand if the damages or the demand exceed forty shillings and if not then a Plaint sufficeth without a Writ And because all Suites of the Plaintiffes could not be determined upon the first preferring of the Suits nor the Suiters or Plaintiffes presently releeved in their Suits Therefore Kings used to goe from County to County every seaven yeeres to enquire of Offences and Trespasses and of wrongs done to themselves and to the Crowne and to the Common people and of all wrongs errours and negligences of their Officers and of all false Judgements of paines pardoned or wrongfully Iudged or outragâ—ously of Out-lawes returned and of their Receivers of the valewes of Counties out of Hundreds Towneâ— Manners and of moveable goods which belong to the King and to the Crowne of the Lands of Idiets of alienators of Fees of offences against the Kings Inhibition of Priviledges and Franchises prejudiciall to the Kings of Bridges and High-waâ—eâ— and of all other needfull Articles and they used to doe right to all Persons by themselves or by their Chiefe Justices and now Kings doe the same by the Iustices Commisfaries in Eyre assigned to hold all Pleas. Infante of such Eyres are Sheriff Turnes needfull and viewes of Franck-pledges and when the people by such Enquests were indicted of any mortall offence the King used to Condemnethem without Answers which usage still remaineth in Almaine but of pitty and mercy and because that man by reason of his frailty cannot keepe himselfe from sinne if he abstaine not from it by the Grace of God it was accorded that no Appelee or Indicter should be condemned without answer And Kings had no Jurisdiction but of mortall offences and of the rights of the Crowne and of their owne rights and of the wrongs of their Ministers and of wrongs done against Common Law and Common Ordinances and the Articles of Eyres CHAP. 2. SECT 4. Of Rewards and Fees KIngs used to give Rewards to the cheife of the Stock and to all those who faithfully served them and from the Rewards of Kings others tooke example to reward their servants and because no Free-man was bouden to serve against his will by reason whereof none were bound to serve the King or any other but by the service of his Fee or by reason of his Residence or dwelling in another Fee some are bound to serve the King for a certainty by the yeare And it is not lawfull for those Officers who take wages certaine of the King to take any wages of the people But the Iudges who serve the King it is lawfull for them to take twelve pence of the Plaintiffe after the hearing of the Cause and no more although there be two Iudges or two Plaintiffes in one Action and the Pleader six pence and a Knight sworne a witnesse foure pence and every Iurour foure pence and the two Sumners foure pence Nevertheresse in the time of King Henry the 1. It was Ordained and assented unto That Iurours sworne upon Enquests of Office as in Assizes Recognisances of Assizes Redissessins â—ertisicates of Assize and Attaints and other the like should not take Fees because they did the same Ex officio and to answer these monies and the damages are the Defendants chargeable if Iudgement be given against them And to those who followed any Suit for the Kings profit and were not any of his Ministers â—ing Henry the â— gave to them the twentieth part of the profit with their reasonable â—oâ—â— In like manner the Iudge was not to heare the Plaintiffes Cause if he put not in security to answer his Adversaries damages if he complaine of him wrongfully CHAP. II. SECT 5. Of Countorr or Plaaders THere are many who know not how to defend their Causes in Iudgement and there are many who doe and therefore Pleaders are necessary so that that which the Plaintiffes or Actors cannot or know not how to do by themselves they may doe by their Serjeants Atturnies or friends Countors are Serjeants skilfull in the Lawes of the Realme who serve the common people to declare and defend Actions in Iudgement for those who have need of them for their fees Every Pleader of others Causes ought to have a regard to foure things 1. That there be a person receiveable in Iudgement that he be no Heretique Excommunicate Person nor Criminall nor a man of Religion nor a woman nor within the Orders of a Subdeacon nor a Benificed Clerke who hath cure of Soules nor under the age of 21. yeares nor Iudge in the same Cause nor attainted of falsity in his place 2 Another thing is That every Countor is chargeable by Oath that he shall doe no wrong not falsity contrary to his knowledge but shall plead for his Cliant the best he can according to his understanding 3 The third thing is that he put no false Dilatories into Court not false Witnesses not move or offer any false corruptions deceits leasings or false lyes not consent to any such but truly maintaine his Clyents cause so that it faile not by any negligence or default in him not by any threatning hurt or villany disturbe the Judge Plaintiffe Serjeant or any other in Court whereby he hinder the right or the hearing of the Cause 4 The fourth thing is as his Sallery concerning which four things are to be regarded 1. The greatnesse of the Cause 2. The paines of the Serjeant 3. His worth as his Learning eloquence and gists 4 The usage of the Court. A Pleader is suspendable when he is attainted to have received sees of two Adversaries in one Cause and if he say oâ— doe any thing in dispite or contempt of the Court and if he fall under any of the
Summonable none is to be summoned for a personall offence not any one who is not a Free-holder 3 A man is not summonable in all places for no man is summonable nor bounden to receive Summons out of the Fee of the Party who causeth the Summons nor elsewhere but in the Mannour appendant to such a Court where he ought to Answer nor in all places of the Mannour but only at the Tenement in demand 4 How farre one is summonable not out of the Fee of the Court where one is to answer 5 At whose charges at the charges of those who are the first causers of the Summons except in Juries and Enquests taken ex officio for no Free-man is compelable to travell and appeare in Judgements at his owne charges notwithstanding that the Law requireth that every Tenant obey the Summons of his Lord. 6 How often one is summonable but once in one cause neverthelesse re-summoned holdeth place in some case 7 Who may and ought to be Summonors no man is compellable to be a Summonor if he will not agree to it neverthelesse all those may be Summonors who will that are not forbidden by the Law Women not Villaines nor infants nor any infamous Person not any one who is not a Free holder cannot be a Summoner 8 It is a reasonable Summons when it is testified by two loyall free Witnesses Neighbours to the Person or to the House or Tenement contained in the Writ with warning given of the day place party Judge of the Cause and a reasonable respite at least of fifteen daies to provide his Answer and to appeare in Judgement In Juries neverthelesse nor Enquests there need not be so full time or respite given CHAP. II. SECT 30. Of Essoignes ESsoigne is an excuse of a default by any hinderance in comming to the Court and lyeth as well for the Plaintiffe as for the Defendant The Law of every Essoigne is That the cause of the hinderance be enrolled with the name of the Essoigner so that if the diverse Party or his Atturney or Essoignor will traverse the Cause he is to be received so to doe that if he be found false then that the Essoigne be turned to a default All those may be Essoigned who are not forbidden by Law uo Defendant in personall Actions not any after default can be Essoigned not any present in Court nor doth Essoigne lye in a Scire facias nor in a Venire facias nor in a Recordari facias toquelam nor in Admeasurement of Pasture nor after the Parties have joyned issue in Judgement though the Jury appeare not nor in case where the Plaintiffe hath not found Surety to pursue his Action nor where one hath Atturney in Court if both be not Essoigned nor where the Summons is not testified nor after an Essoigne not warranted nor to him who was not named in the Writ or in the Plaint except in Warranties nor any one who is re-summoned in Mort-dauncester and Darrein presentment nor when the day is not come nor where the Essoigner commeth too late nor any one whose adversary is dead or any of his Parceners nor he who is adjourned from day to day nor the Kings Officer as Officer nor he to whom it is commanded that he appeare if he please No Essoigne is justifiable if it be not orderly cast nor is it allowed to Infants within age nor to any who is in custody nor to many having one right if the Cause be not divers All may be Essoigners who the Law forbiddeth not it is forbidden to Women to Infants to Villaires and to all who are in Custody to Mad-men to Idiots to Excommunicated Persons to the Judges and uo the Parties in the Cause Essoigners at other times not warranted 〈◊〉 â—â—ainted of false delayes to criminall Persons and to those who are not of the Christian Faith or in the Kings Alleagiance it is forbidden that they be Essoigners There are chiefly two kinds of Essoignes the one of the Kings service the other of hinderance The first is dividable either into the service of the King of Heaven or of the King on Earth of the King of Heaven in three manners 1 Either for the generall passage of all to the Land of c. and this Essoigne is not otherwise adjournable but that the Parties goe without day and are to appeare againe by Re-summons of the Plaintiffes at the returne of the Defendant This Essoigne is not allowable to Plaintiffes nor to the Defendant reasonably Summoned before his going from his house in a personall action nor in other but in a Plea which toucheth Inheritance nor but in a Writ of Right Patent but not of Dower nor of Burgage The other Essoigne of the service of the King of Heaven is of a common Pilgrimage beyond Sea towards the Holy Land and this lasts for a yeare this holds not buâ— according as the other The third of a Pilgrimage beyond Sea as to Rome or to Saint James De compostella and takes place for halfe a yeare and these Essoignees are to appeare the next Courts following the Termes adjourned After Re-summons holdeth place the common Essoigne De mal venier and also after the terme of Adjournment but this common Essoigne never holds place before the Essoignes before said The Essoigne of the King on Earths service is in two manners 1 The one is of those who serve as Souldiers as Messengers or as Ministers and this Essoigne is not respited but from Court to Court or the common day to the example of a common Essoigne if it be not warranted at the next Court by the Kings Writ it is to be turned to a default 2 The other is of those who serve the King by Tenure of their Land for the defence of the Realme and he hath no day But the Plaintiffe is with out day and the Plea is to be re-continued in the same Estate when his Adversary shall be returned These latter Essoignes are allowable in Pleas summonable to Plaintiffes and Defendants except in Dower Vnde nihil habet Quare impedat Darrein presentment nor to Women nor to Infants nor to Idiots nor to Deaf nor to Dumbe nor Mad-men nor to any in custody nor to any who is not free of himself nor to any Atturney as Atturney nor where the Essoigner acknowledgeth the Cause in Judgement to be false nor after any Cape nor after distresse in the Land After the Essoignes of the Kings service lyeth an Essoigne of Malo veniendi but not è conâ—â—a The Essoigne of disturbance or hinderance is dividable either of sicknesse or of some other hinderance as of those who comming towards the Court are taken by the Kings enemies and so hindered or by Waters Bridges or enemies discovered or by Tempests or other reasonable disturbance so that they have not power to appeare at the day The Essoigne of hinderance and sicknesse is divideable either of languishing which is called De malo lecti and that holdeth place
to the Bayliffes sometimes to the Justices in Eyre sometimes to certaine persons named and sometimes to persons not named as to Bayliffes Justices and Sheriffes And every Plaintiffe used to have a Commission to his Judge by the Writ Patent aforesaid And now may Justices Sheriffs and their Clerks forge Writs thorough draw loose amend or empaire them without any prosecuting or punishment because the Writ are made close through abuse of the Law By that Seale only is jurisdiction grantable to all Plaintiffes without difficulty and the Chancellour is chargeable by his oath of allegiance to make such Writs and that hee do not delay or deny justice nor a remediall Writ to any one CHAP. IIII. SECT 4. Jurisdiction is a power to declare the Law THat power God gave to Moses and that power they have now who hold his place upon earth as the Pope and the Emperour and under them the King now hath this power in his Realme The King by reason of his dignity maketh his Justices in divers degrees and appoinâ—eth to them jurisdiction and that in divers manners sometimes certaine especially as in Commissions of lesse Assizes sometimes in certaine generally as it is of Commissions of Justices in Eyre and of the Chiese Justices of Pleas before the king and of Justices of the Bench to whom jurisdiction is given to heare and determine Fines not determined the grand Assizes the transations of Pleas and the rights of the King and of the Queen and of his Fees and the words of the Kings Writs whether they be named generally or specially Besides the Barons of the Exchequer have Jurisdiction over receivers and the Kings Bayliffes and of Alienations of Lands and rights belonging to the King and to the right of his Crowne Sometimes jurisdiction is given to Sheriffes for the defaults of others as appeareth in the Writ of Right where it is sayd That if he do not right that the Sheriffe of the County shall do it Sometimes to those who have the Returne of Writs Returnables Sometimes jurisdiction is given to the Justices of the Beach by removing of the Pleas out of the Counties before the sayd Justices and sometimes to Record the Pleas holden in meane Courts without Writs before the same Justices of the Bench But as those Records ought not to availe the Plaintiffes if not after judgement given that the Pleers be Returnable untill after their judgements And as the Pleas moved upon the Writs are to be remanded into the Lords Courts where the Lords have not failed to do right In like manner are the Pleas removed by Pone returnable in the Counties in case where the parties never appeared in Court for to Plead To the office of chiefe Justices it belongeth to redresle and punish the tortious judgements and the wrongs and the errours of other Justices and by Writ to cause to come before the King the proceedings and the Records with the originall Writs and before such Justices are all Letters Pleadable returnable and to be ended wherein mention is made before the King himselfe and the Writs not Pleadable nor Returnable before the King are returnable into the Chancery And also it belongeth to their office to heare and determine all plaints made of personall wrongs within twelve myles of the Kings house and to deliver Goals and the prisoners from thence who are to be delivered and to determine whatsoever is determinable by Justices in Eyre more oâ— lesse according to the nature of their commission On the other side there is a kinde of jurisdiction which is called Arbitrary which is not ordinary nor assigned as is such which is by the assent of the parties Of Jurisdiction commeth Judgement which hath many significations In the one judgement is as much to say as absolutions from offence In another sence as sentence which sometimes soundeth well as of discharge or acquittance from punishment and sometimes ill as Excomengment and in another sence as the end of the Plea and the end of jurisdiction Jurisdiction assigned may be for a time or for ever For a time as in some exception dilatory where the Action reviveth for ever as by a definitive sentence upon the Action Judgements vary according to the difference of offences In like offences neverthelesse there are the like Judgements For the mortall offences according to the warrant of the old Testament were assoiled by death For in the old Testament it is found That God commanded Moses that he should not suffer Felons to live But before more is to be spoken of punishments it is to see by what introduction offenders and contumacious persons are compellable to appeare in Court and by what judgments CHAP. IIII. SECT 4. Defaults punishable DEfaults are punishable many wayes In appeals of Felony they are punishable by Outlawry which judgement is such that after that any one hath been solemnly called and demanded to appeare to the Kings peace at three severall Counties for felony and he commeth not that from thence forward hee is holden for a Woolfe and is called Wolfshead because the Woolfe is a beast hated of all people and from thence forward it is lawfull for any one to kill him as it is a Woolfe whereof the custome was to bring the heads to the chiefe place of the County or of the Franchise and according to Law for every head of an Outlaw to have halfe a marke and such Fugitives Outlawes forfeited for their contempts the Realm Countrey friends and whatsoever belonged to the peace and all manner of rights which they ever had or could have by any Title not only as to themselves but to their heires for ever Also all confederations of Homages of alliance of affinity of service of oathes and all maner of obligations betwixt the Outlawes and others were broken severed and defeated by such judgement And all manner of Grants Rents and Contracts and all manner of Actions which they had against any manner of persons were void not only from the time of judgement but from the time of the Felony for which such judgement was given and such persons could never againe resort to answer the Felony if the Processe of Outlawry were not faulty if not by the great mercy and favour of the King Weomen were not plevisibles and put in dozens as men but were waves CHAP. IIII. SECT 5. Defaults IN personall Actions venialls defaules used to be punished after this manner The Defendants were distrained to the value of the demand afterwards they were to heare their judgements for their defaults and for default after default judgement was given for the Plaintiffe This usage was changed in the time of King Hen. the first That no Freeman was not to be destrained by his body for an action personall veniall so long as he had Lands In which case the judgement by default was of force till the time of King Hen. the third That the Plaintiffe should recover his seifure of the Land to hold the fame in demeasure
Action personall from a longer time then the last Eyre 123 It is abuse of the Writ of Accompt for which every one may imprison another wrongfully 124 It is abuse that one is bound to render an accompt of issues of Land whereof he is Guardian by title of Law 125 It is abuse that the Writ of Ne cui juste vexces is so out of use 126 It is abuse that Battailes be not in personall Actions as well as in Felonies 127 It is abuse that proofes and purgations be not by the Miracle of God where other proofe faileth 128 It is abuse to joyne Battaile betwixt persons who are not admitted to wage battailé 129 It is abuse that a Knight is otherwise armed then another man in a Combate 130 It is abuse that Judges have Cognizance by originall Writ or warrant by Vouchers or in others to which his jurisdiction extendeth not 131 It is abuse to suffer a Voucher to warranty in the Kings Writ of Quo warranto 132 It is abuse that those who are sound Usurers by indictments after their deaths are suffered to be buried in Sanctuaries and that the Lands doe not escheat to the Lords of the Fees 133 It is abuse that vicious Obligations drive the Authors to personall Damages in as much as they are voidables 134 It is abuse to compell Iuronts Witnesses to say that which they know not by distresse of Fine and imprisonment after their Verdict when they could not say any thing 135 It is abuse to use the words to their knowledge in their Oath to make the Iurours speake upon thoughts since the chiefe words of their Oathes be that they speake the truth 136 It is abuse that one examine not the Jurours though they finde at least two to agree 137 It is abuse to put more words in the doing of Homage but thus I become your man for the Land which I claime to hold of you 138 It is abuse to Answer or appeare by Atturney 139 It is abuse to make Justices such parties without the Writ in the Kings presence if not with the assent of the parties 140 It is abuse that the Writs of Audita quareta and Conspiracy and others containe not the substance of the plaints 141 It is abuse that the Justices of the Bench meddle with more Pleas then of wrong done against Fines Grand Assizes translation of pleas out of lower Courts and of Darrein presentment and of the rights of the King Queene and their Allies 142 It is abuse to use a Pone when their Causes are discussed if the parties challenge the same for a lying purchasor ought not to have benefit of his leasings 143 It is abuse to sue forth Grand Distresses in Pleas of Attachments whereof the defaults are to the profit of the King and not of the Plaintiffes 144 It is abuse that Trespassours who have nothing are not banished from Townes Counties Manours and Hundreds as they used to be 145 It is abuse to hold that a Petit Cape maketh other title but to save every right in reall Action not in others 146 It is abuse that the issues of Grand Distresses in mixt Actions come not to the profit of the Lords of the Fees and others who have Courts as they doe to the King of Pleas moved in his Court upon the same Actions 147 It is abuse to thinke the same punishment is to be to Maine-prisots as to Principals who make default whereas they are amerceable onely in Courts 148 It is abuse to amerce a man in plesive of Fee or of service going out of the Land by default in a personall Action or reall for Outlawty or losse of Land is sufficient punishment 149 It is abuse that Sheriffes doe not execution of Writs Vice Conntiels in as much as the Plaintiffes have found Pledges De proseqnend where there is no mention to take Sureties 150 It is abuse to distreine for Arâ—erages of services issuing out of Lands moveable goods whereas no distresse ought to be but in the Land onely 151 It is abuse that the Tenant may without punishment enfeoffe a third person of the Land of his Lord in prejudice of him or doe other thing or say any thing against the points of his Oath of fealty 152 It is abuse to suffer a man who is a Champion to be a witnesse 153 It is abuse that none have recovery of wrong done by the King or the Queen but at the Kings pleasure 154 It is abuse to judge a man to divers punishments for one Trespasse as to a corporall punishment and to a ransome since ransome is but a Redemption from corporall punishment by payment of a fine of money 155 It is abuse that people defamed of offence are not barred from making oathes and of their dignities and of their other Honors And divers other abuses appeare by those who well understand the Writ before written CHAP. V. SECT 2. The defects of the great Charter SEeing how the Law of this Realm sounded upon forty points of the Great Charter of Liberties is damnably dis-used by the Governours of the Law and by Statutes afterwards made contrary to some of the points to shew the defects or defaults of the points aforesaid and the errours of some Statutes I have put in memory this Chapter of the defect and reprehensions of Statutes and first of the defects of the points of the Great Charter To the point That the Church of England shall have all her Rights and Liberties inviolable for first it were necessary to ordaine a Corporall punishment and namely to the Lay Judges the Kings Ministers and others who Judge Clerkes for mortall Crimes to Corporall punishments infamatories doe detain their goods after their purgation and to those Secular Judges who take upon them Cognizance in causes of Matrimony and Testaments or other speciall things The other point is That every Free-man of the Realme inherite the Liberties of the Charter and whereof every one is disseised as of his Free-hold which is not adjudged according to the points following there lyeth no recovery of damages by the Assize of Novel Disseisin A third point seemeth to be defective for as the releife of an Earldome entire was to decrease in him who held lesse so it seemeth that that certainety was to encrease as much if an Earle held more so as he who held two Earldoms and who held an Earldome and a Barony shall pay as an Eardome and as a Barony and so of other Fees if they be not expressed in the Charter that the Fyne of one hundred pound be not an Eirldome for no point oncreased and so of other certainties The fourth point is defective for although it be that such a point be grounded upon Law to binde the Lord of Fees to warranties by taking of such Homages whether they tooke them of the right Heires or not because it is not expressed whoshould be Guardian of the Fees in time of vacancy and have the issues in the mean
is reproveable and distinguishable according as hath been said before The Statute to have view of Lands is but a wrongfull delay of the right of the Plaintiffes for the View appeareth sufficient by the Certificate of the Summons upon what Tenements the Tenants are summoned The Statute which forbiddeth that no Officer of the Court take any presentment of any Church not other thing which is depending in Plea or in debate is not kept Reprehensions upon the Statute of Gloucesier 16. E. 1. THe Statutes to recover Damages in Pleas of possession enacted at Gloucester or else where and of the horrible damages in waste are reproveable for that the Law giveth one no more then is his demand and therefore it behooveth that the damages be mentioned in the Writs if damages shall be awarded for a Judge cannot exceed the points of his Commission and so it would be needfull to use it according to the first Ordinance of Writs And the Statute of Tenements alliened of Lands in prejudice of others is reproveable for the remedy ought to be such as of Guardians allienors to the dis-inherison of the right Heires The Statute of Trespasse pleaded in Counties is reproveable for want of distinction for small Trespasses Debts Covenants broken and such other kinds not exceeding forty shillings Suitors have power to heare and determine without Writs by warrant of jurisdiction Ordinary and by Writs granted afterwards for Sheriffes have more jurisdiction in their Writs vicontiell then Justices of the Bench by the Pone And as to the recovery of twenty shillings or more in right of Essoigne of the Kings service not warranted the Statute is reproveable for that Essoigne might be cast where the Defendant would make default by the adverse Party and so he should have advantage of his malice The Statute which forbiddeth the abatement of Appeales is not observed The Statute which awardeth an innocent man to remaine in Prison or to have no manner of punishment for necessary Man-slaughter or by mischance where no offence is found is but an abusion The Statutes making mention of London ought to extend commonly throughout the whole Realme CHAP. V. SECT 6. The reprehensions of Circumspectè agates An. 13. E. 1. THe first point which saith That the Kings prohibition holds not in correction of mortall offences where a pecuniary paine is enjoyneable by Ordinaries is founded upon open errour and usage to enjoyne a pecuniary paine for a mortall offence notwithstanding to destroy the King jurisdiction The other points to compell the Parishioners by corrections to enclose Church-yards to offer to give Mortuaries Monies for Consessions Chalices Lights Holy Vestments and other adornement of Churche are more grounded upon interest then amendment of soules and note that after that they are offered to God that they are so spirituall that they are to be expended but in Almes and spiritually for they are never to be converted to Lay uses And then if any Parishioner for the hurt of the Parson of the Church keopeth back his Tithes or stealeth them away or doth not pay them duly or fully the same is not punishable by a pecuniary paine but by a corporall punishment For the Excommunicate no pecuniall paine was to be for restitution or satisfaction no more then of a Pagan or a Jew and if they doe demand a pecuniary paine there the Kings Prohibition lyeth and much more in the demand of Pensions or of damages of Trespasse or of defamation but of Pleas of correction where one Pleades onely Pro salute anima the Kings prohibition lyeth not CHAP. V. SECT 7. THe new Statute of Debts is contrary to Law as it appeareth in the Chapter of Contracts for every imprisonment of the body of a man is an offence if not for tortious Judgement and the Law will not suffer any Obligation or vicious Contract by intermixture of offence and therefore it was to be avoided as grounded upon an offence for no honest man ought to agree to such a Contract which causeth him to offend or to be punished Againe it is contrary to the Great Charter which enacteth that no man be taken nor imprisored if not by the lawfull judgement of his Peeres or by the Law of the Land Here endeth the Mirrour of Justices of the right Lawes of Persons according to the ancient usages of England The end of the fifth Chapter and of the whole Booke FINIS THE BOOKE Called The Diversity of Courts And Their Jurisdictions Written by an unknown Author in the time of King Henry the Eighth in the French Tongue Wherein many necessary and profitable things ate contained Translated out of the French Tongue into English for the use of many By W. H. of Grays Inne Esquire Imprinted at London for Matthew Walbancke and are to be sold at his Shop at Graies Inne gate 1646. The Booke called The diversity of Courts and their Jurisdictions IT is to be understood that the King is the fountaine of Justice and to that purpose ordayneth Judges that Justice be administred to all his Subjects The King himselfe for the excellency of his Person may fit and give Judgement in all Causes personall or reall betwixt Party and Party but he cannot fit in Person in Judgement in any Cause where he himselfe is Party or where the things of his Crowne or Dignity are concerned as upon an Indictment of Treason or upon as appeale of Murder or Felony or upon an Action brought by himselfe as Formdon of Land of which the right is descended to him from a colaterall Ancester or in an Action of Debt by reason of the affection moving him to be favourable to himselfe and therefore he maketh his Iudges to sit and heare such matters in difference and to doe justice to the parties And the place where the Judges sit to minister Justice are called Courts which are of divers kinds and the Judges thereof have severall Authority Of the Court of Marshalsey ANd first the Court of Marshalsey is an ancient Court and made for the well government and ordering of the Kings house for the preservation of the King and his Servants and this Court hath its bounds within which it hath jurisdiction and not without The Iudges of this Court are the Steward and Marshall of the Kings house for in them under the King is the ordering of the houshold c. The title of the Court is Placita Corone aula Hospitii Domini Regis leat coram seneschalle mareschallo hospâ—â—â—i Domini Regis c. And this Court hath power to enquire of Treason Murder and Felony and to take Appeales of them and of Mayhem if they be done within the Virge betwixt persons who are of the Kings house And if one of the houshold Sueth another who is not of the houshold he may plead to the jurisdiction of the Court and if they will not allow of the Plea he shall have a Writ of Errour and the Iudgement shall be reversed in the Kings Bench. And if
at the prayer of the Plaintiffe may send the Warden of the Fleet to bring him before them to satisfie the party the money or otherwise commit him to the Fleet. And when he appeareth and will deny that he is the same person then Quaere what shall be done if the Justices may commit him to the Fleet or not And some say not for that they know him not as Judges but as other men by information of the parties and the Plaintiffe cannot mainetaine that he is the same person because he commeth not in but by information of the party Plaintiffe not by Processe of Law Quaere what is to be done in that case And see another difference betwixt the Judges of the one Bench and of the other for it is said That if the Judges of the Kings Bench doe award Processe in a Formedon a Writ of right or execution of Land recovered in value the Sheriffe ought to execute the Writs although they have not any jurisdiction therein But if the Judges of the Common Pleas will grant Processe of Treason c. out of their place the Sheriffe ought not to execute the Processe for that authority is onely of Common Pleas c. The chiefe Iustice of the Common Pleas is made by Patent viz. by these words Constitutimus iâ—â—â—mcapital Iusticiar nostrum de Coi Banco c. Habendum illud own feodis vadiis regardiis eidem officio debit conâ—suet And the other Iudges of the same Bench are made by Letters Patents c. The Chancery ANd note that the Court of Chancery is a Court of a high nature out of which Court issue all originall Writs and there a man shall traverse Offices and such things and in that Court women who are widowes to the King shall be sworne that they shall not marry without the Kings Licence before the time that they be endowed and it is said That of errour there upon a Patent or a Traverse the same cannot be reversed else where but in Parliament Quaere c. And in that Court a man shall have remedy for that which he hath no remedy at the Common Law and it is called by the common people The Court of Conscience And therefore see of matters in Conscience how the party shall have remedy If a man hath Feoffes to his use and maketh his Will and thereby willeth that his Feoffes should make an estate to I. for terme of his life the remainder to C. in Fee if the said I. will not take the estate what remedy is for him in the remainder in conscience and how he shall helpe himselfe in Chancery c. A man shall have remedy in Chancery for Covenants made without writings if the party have sufficient Witnesses to prove the Covenants and yet he is without remedy at the Common Law c. And for Evidences when a man knowes not the certainty of them nor in what they are contained it is usually to be releeved in Chancery for he is without remedy by the Common Law c. If a man infeoffeth another of certaine Lands to his use and the Feoffee selleth the Land to another if he giveth notice to the Vendee at the time of the sale of the intent of the first Feoffment he is bounden to performe the will of the first Feoffer as it seemeth in the Chancery A man was bounden unto another by Obligation in a certaine summe of money and the Oblgee brought an Action upon the same Deed in another County then where the Obligation was made and had Iudgement to recover and the Obligor in Chancery sued to be releeved and it was surmised that by that forraigne Suit he was outed of diverse Pleas which he might have had if the Action had been brought in the County where the Obligation was made and it was conceived a good matter to releeve him in equity In the Court of Chancery a man shall not be prejudiced by mispleading or for want of forme but according to the truth of the Cause judgement ought to be given according to equity and not Ex rigore juris And note that there are two jurisdictions Ordinary and Absolute Ordinary is as positive Law and Absolute is Omnibus modis quibus veritas sciri poterit If a man be bounden by Obligation unto two men unto the use of one of them and one of them viz. is he to whose use it is not releaseth to the Obligor all Actions so as the Obligation is discharged he to whose use the Obligation was made hath good remedy in Chancery by Subpoena against his companion who released him but against the Obligor it seemeth he hath no remedy for every man is bounden to helpe himselfe and it is lawfull for a man to get a discharge of that which he is charged withall and in danger to others And if a man hath recovered against another debt or damages and he hath paid the same without any Acquittance or without having a release and notwithstanding the party taketh execution against him upon the same Iudgement he shall have no remedy by the Common Law and it was then said by the Chancellor that he shall not have any remedy in equity in this case and if the same should be remedied in equity then every Record should be examined before him and thereby the Common Law overthrowne And if I doe infeoffee one upon trust and the Feoffee doth infeoffee another of the same Land upon trust Quaere if I shall have a Subpoena against the second feoffee but where he is infeoffed bona fide there the first Feoffer is without remedy against the second Feoffee as it seemeth It is said That the Chancellor of England wheresoever he shall be in England hath power to command a man to prison and he shall not be bayled Quaere whether the Iustices of the one Bench or of the other out of their Courts have the same authority or nor The Exchequer THe Court which is commonly called the Exchequer is properly for Accomptants Sheriffes Escheators and the like and there they are compellable to make their Accompts according to the usages and customes of the same Court c. and it seemeth to be a Court which is much for the Kings profit for there all remedies are provided how the debts and duties to the King shall be levyed And in that Court the Barons are Iudges betwixt the King and his Subjects and they are sworne thereunto and Fines Issues and Amercements which are assessed in other of the Kings Courts the estreates shall be made thereof to the Court of Exchequer and there they shall write forth Processe against the parties to answer thereunto and to satisfie the King what is due to him and of divers other matters they have power and authority by reason of their Office c. The Cinque Ports THere are also divers other Courts and inferiour places where Iustice is ministred and in those places they have Iudges as in the Cinque
Cicero was bold to derive the pedigree of his Roman Law from the great God Jupiter so I hope without offence I may be emboldened in the person of our Common Law to say That when the Lawes of God and Reason came first into England then came I in The Temporall Lawes of this Kingdome may be divided into three parts 1. The generall or Common Law Bracton lib. Serm. 2. The customary Law 3. Statute or Parliament Lawes the end of all which are Vt sopianter jurgia vitia propulsenter ut in regno conservetur pax justitia The Common Law is nothing else but pure and tryed Reason Responsa prudentum allowed and knowne containing the Principalls and Maximes of Law consonant unto the Lawes of God with a certaine method for the orderly proceeding therein Egerton Postant the rest consisting in the minds of the Sages of the Law ready by Argument to approve what is truth and under-propt with Authorities to condemne what is false The customary Laws are certaine ancient Customes grounded upon Reason which abridge the course of the Common Law The diversity of Customes have growne by reason of the severall Nations who have had government over this Kingdom as 1. The Britaines 2. The Romans 3. The Britaines againe 4. The Saxons 5. The Danes and lastly the Normans all which sorts of people have left behind them within this Realme part of their Language and part of their Country usages The Customes within the Realme are called by severall names as As Customes As Prescriptions As Vsages As By Lawes Customs extend properly to Conntries Cities Boroughs Towns Corporate and large Signiories 2. Prescriptions run with persons who have capacities to have Interests and properties 3. Usages referre to Places or Townes not incotporate as to Inhabitants and the like 4. By-Lawes are properly made in Courts by the Tenants of the Mannor or Precinct or out of Courts with a common consent for good order and Neighbourly usage The efficient causes of good and lawfull Customes are Reason and Time the one begetting the other bringing forth and continuing the same in one place Master Lit saith This is a good Custome because it stands with some reason Litt. pl. 209.212 in another This is a void Custom because it is against reason 3 The last is Statute or Parliament Lawes Parliaments have been ancient they were in the time of the Saxons long before the Norman Conquest for as the Proverb is In the time of the Danes the Lawes lay then in water the people were governed rather by Princes wills then publike Lawes for then as one saith Sepultum fuit jus in regno leges consuitudines simul sopitae temporibus illorum prava voluntas vis violentia magis regnabunt quam judicium in terra And although in the Saxons time I finde the usuall words of the Acts then to have been Edictum Constitutio little mention being made of the Commons yet I further finde that Tum demum leges vim vigonem habuerunt cum fuerunt non modo justituta sed firmatae approbatione Communitatis Our Author and others tell us 20. H. 7.7 c. 12. part 86. That the administration of Justice was onely originally in the Crown Bracton lib. 2. cap. 24. and Kings in their own Persons rode Circuit every seven yeares through the Realme to heare the Complaints of their People and to redresse Publique grievances But after the division of the Realme into Shires publique Courts were erected as the County Court Sheriffes Turnes Hundred Court Court Leets Viewes of Frankpledges and Court Barons for the conservation of the Kings Peace and the hearing and determining of all differences Debts Contracts c. which might arise betwixt Party and Party and all persons were forted into Companies or Societies wherein ten of the principall men called Capitales plegii or Franchi plegii because they were Freemen stood as Sureties for the residue that they should stand to Justice and not fly from it when they had committed any offence The Law of Saint Edward is most excellent to that purpose in these words Legis Sancti Edwardi in Lambert Est quedam summa maxima sccuritas qua omnes Statu firmissimo sustinentur viz. Vt unusquisque stabiliat se sub fidejussionis sccuritate quod Angli vocant Friburber Haec securitas hoc modo fiebat quod de omnibus villis totius Regni sub fidejussione decemali debeant esse universi And to that purpose also is the Ordinance of King Alured Decrevit Aluredus ut liberae conditionis quisque in Centuriam aseriberetur aliquam atque in docemvirale coniiceretur Collegium the difference only consisting in this That King Alureds Law extended but to Freemen Saint Edwards to all men This Decemalis fidenissio or Decemvirale Collegium by our Author is called the Decenery who were charged to bring forth the Person of every offender to answer unto the Law Bracton lib. 3. cap. 10. whereof Mr. Bracton speaketh in these words De eo autem qui fugam fecerit he speaketh of one after a Felony committed Diligentur erit inquirenum si fuerit in Franciplegio decenna tunc erit decenna in misercordia coram Justiciariis quia non habent ipsum malefactorem ad rectum 13. H. 4.13.6 And according to that Law if a Felon after his flying or conviction were possessed of Goods the Towne or Decenary was answerable for the same And if the same were imbesselled or holden from them the Decenery might seaze those goods in whose possession soever they were found as appeareth by 3. E. 3. Itin North Fitz Corone 366. quod vicecomes Decennarii sesire possunt cattella felonum in manus Domini Regis Et vic cattella illa deliberabit villae ad respondend Regi in itinere quod si vic nec Decinnarii sesicrint villa respondebit dom regi in itenere but this Law hath been since altered by the Statute of 3. E. 3. I have Courteous Reader stood the longer upon these things as well to vindicate the Common Lawes from those weak cavills of the ruder sort as to demonstrate the care our ancient Kings and Counsells have had for the peaceable Government of the people of the Land according to the right rules of Justice deduced from the Law of Nature of God and of right Reason and I wish that Princes in this age would consider and put in practice 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 Demoth that golden Rule of Demosthenes Benè gubernare rectè judicare justè facere so should their Kingdomes flourish and they themselves be in high estimation in the eyes of all their people In these distracted times wherein the fundamentall Lawes and Liberties of the Subject have been by a Malignant Party so much opposed I have offered this Treatise intituled The Mirrour of Justices I have translated the same out of the French Tongue into English In this Booke many of those
Exchequer THe Exchequer is a place which was Ordained onely for the Kings Revenew where two Knights two Clerkes and two learned men in the Law are assigned to heare and determine wrongs one to the King and Crowne in right of his Fees and the Franchises and the Accompt of Bayliffes and Receivers of the Kings Monie and of the Administrators of his Goods by the over-sight of one Chiefe who is the Treasurer so England The two Knights usually called two Barons were for to afferre the Amercements of Earls Barons and of the Tenant of Earldomes and Baronies so that none be amerced but by his Peers To this place there was a Seale assigned with a Keeper of it to make Acquittances upon every payment to those who desired them and to seale Writs and Escheates under green Wax issuing from thence for the Kings Revenue In this place there are also Chamberlaines and many other Officers who belong not very much to the Law CHAP. 1. SECT 15. Of inferiour Courts FRom the first Assemblies came Consistories which we now call Courts and that in divers places and in divers manners whereof the Sheriffes held one Monethly or every five week according to the greatnesse or largenesse of the Shires And these Courts are called County-Courts where the Judgement is by the Suiters if there be no Writ and is by warrant of Jurisdiction ordinary The other inferiour Courts are the Courts of every Lord of the Fee to the likenesse of Hundred Courts and also in Fayres and Markets where right is to be ministred without delay whether the matter concern the Plaintiffe or Defendant according to the first Ordinances in which Court they have counsans of Debts Covenant broken and of Trespasses and of such small things which passe not forty shilling value and also they have Counsans of Trespasses and forfeitures of the Fees betwixt the Lords Plaintiffes and the Tenants Defendants Et è contra There are other inferiour Courts which the Bayliffes hold in every Hundred from three weekes to three weekes by the Suters of the Free-holders of the Hundred All the Tenants within the Fees are bounden to doe their Suit there and that not for the service of their Persons but for setvice of their Fees But Women Infants within the age of 21. yeeres deafe dumb idiots those who are Indicted or Appealed of any mortall Felony before they be acquitted diseased persons and excommunicated persons are exempted from doing Suâ—t and although it be that such Free-holders may doe Suits at inferiour Courts by their Atturnies neverthelesse the Judgement is not to be given or holden for forraign and if any Plea be removed by Writ of Justities Replegiatie wast or of other nature that enable the Jurisdiction from which the Writ is originally sent and returneable CHAP. 1. SECT 16. Of the Sheriffes â—urnes THe Sheriffes by ancient Ordinances hold severall meeting twice in the yeere in every Hundred where all the Free-holders within the Hundred are â—ound to appeare for the service of their Fees that is to say once after Michaelâ—as and another time after Easter and because Sheriffes to doe this make their Turne of Hundreds such appearances are called the Sheriffes Turnes where it belongeth to Sheriffes to enquire of all personall offences and of all their Circumstance done within those Hundreds and of all wrongs done by the King and Queens Officers and of wrongs done to the King and to the common people according to the points aforesaid in the division of offences All Free-holders within the Hundred are not bounden to appeare at these Courts for King Hen. 3. excused some persons said That it was not needfull that Arch-Bishops Bishops Abbots Priors Earls Barons religious Persons nay such people not other who were exempted to doe Suit at inferiour Courts should appeare in proper person if their appearance were not necessary for some other cause then onely to make their appearance And if any one hath divers Tenements in divers Hundreds his presence is not to be excused notwithstanding the Kings grant CHAP. 1. SECT 17. Of viewes of Franck-pledges OF these first Assemblie it was also Ordained That every Hundred doe make a common meeting once in the yeere not onely of the Free-holders but of all Persons within the Hundred Strangers and Denizens of the age of 12. yeeres and upwards except of Arch-Bishops Bishops Abbots Priors teligious Persons and all Clerkes Earls Barons and Knights Feme Coverts Deafe Dumb Sick Idiots infected Persons and those who are not in any Dozien to enquire of the points aforesaid and of the Articles following and not by villanies nor by women but by the afferment of Free-men at the least for a Villaine cannot indict a Free-man nor any other who is not receiveable to doe Suite in inferiour Courts and therefore it was anciently Ordained that none should remaine in the Realme if he were not in some Decenny and pledge of Free-men it belongeth also to Hundredours once a yeare to shew the Franck-pledges and the Pledgers and therefore are the Viewes called the View of Franck-pledges The Articles are these BY the Oathes you have taken you shall declare whether all they who ought doe appeare or not If all the Free-men of the Hundred or of the Fees be present If all the Franck-pledges have their doziens entire and all those who they have in pledge If all those of the Hundred or of the Fees of the age of 12. yeeres and above have sworn fealty to the King and of the receivers of others wittingly Of all Bloud-sheds of Hue and Cry wrongfully leavied or rightfully leavied and not duely pursued and of the names of the Pursuers of all mortall offences and of their kinds and as well of the Principalls as of the Accessories Of all Exiles Out-lawes Warves and banished Persons returned and who have since received them and of those who have been judged to death or abjured the Realm Of Usarers and of all their goods Of Treasure tâ—ove Wrecks Waifes Estreyes and of every purpresture and encreachment upon the King oâ— upon his Dignity Of all wrongs done by the Kings Officers and others to the common people and of all purprestures in common places in the Land or in the Water or elsewhere Of Boundaries remsved to the common Nusance of the people Of every breach of the Assize of Breed Bear Wine Clothes Weights Measwes Beames Bushels Gallons Fills and Yards and of all false Scales and of those who have used them And of those who have bought by one kind of measure and sold by another kind in deceit of Merchants or buyers Of the disturbers of fâ—aming lawfull Judgements and of the framers of wrongfull Judgements and of the Abbettors and consenters thereunto Of every wrongfull detinue of the body of a mar or other distresse Of every false Judgement given by the View in the other Hundred oâ— in the Fee Of every Fore-stallment done in the common High-way Of wrongfull Replovies and wrongfull Recoâ—sses Of every
for a yeare or of sicknesse in the Journey and that holds not but to the example of a common Essoigne in these Essoignes of hinderance are Essoignes De malo veniendi This Essoigne lyeth after every Summons and generall Râ—-summons upon Pleas except to Jurours and those who are summoned for the common-wealth But of Adjournments it is to distinguish for in the Eyre of Justices the Adjournement is for three daies or foure at the most or lesse according as the places are â—eare or containe and to this Essoigne is respited fifteen daies at the least The Essoigne of sicknesse in passage lyeth before the Essoigne De malo lecti and also after the yeare of the languishing and it lyeth before appearance and after appearance except in foure Assizes and where it lyeth in Actions it holdeth in Warranties This common Essoigne is not allowable in the cases aforesaid but once after the Parties have joyned issue not after the Parties have agreed to appeare without Essoigne nor where a Bishop is commanded that he have or cause such a Person to appeare nor there where many claime by one right or are Tenants of the same right nor to a man and his Wife not to all the paeceners but if a man dyeth without Heire after the Writ purchased and brought the Writ is thereby abateable because at the day of the date the Plaintiffe had no Action against the other parceners which are alive as to that of the Party This common Essoigne lyeth as well for Infants where they are impleaded of their Lands as for men of full age And as the same is allowed to the Tenant so is it warranted where no sicknesse is adjudged this Essoigne is allowable from day to day according to the common Adjournments in Writs of right till the sicknesse be Judged if the Tenant rise not before from his sicknesse neverthelesse none can doe it in such a case if not with the Plaintiffes leave or by the command of the King if the Plaintiffe will not give him leave This Essoigne holdeth in the Writ of Droit Potent sent to the Lord of the Mannour and in a Writ of Droit close of Lands holden of the Kings in Capite and in the Writ of Customes and Services after that the deforceor hath pleaded and said that the Batraile or the Grand Assize may be joyned The Essoigne De malo Lecti is in Court for two yeares when the sicknesse turnes to weaknesse this Essoinge lyeth not for the Plaintiffe and after the sicknesse adjudged it is adjournable by a yeare of respite to the Court of London Weakenesse lyeth not in any Writ of right after appearance but where Battaile may be joyned or the Grand Assize This Essoigne De malo Lecti was never allowable to any Atturney nor to any but those who had a Warrant before the common Essoigne cast by the Tenant nor to any after the weakenesse adjudged nor without â—â—sing nor in Justiâ—â—es nor in the Writs De quo jure nor De rationabilibus divisis nor Quo warranto nor Customes and Services before that the Court be certified that Battaile might be joyned or the grand Assize This Essoigne of De malo veniendi is called De malo villa and this lyeth in case where one appeareth the first day in Judgement and is suddenly taken with sicknesse in the Town that he cannot the next day appeare in Court This Essoigne may be cast the second day by one the third day by another and the fourth day by a third in which case the Judge ought to receive the Atturnies of those who are sicke but this Essoigne lyeth not but there where the Essoigne De molo lecti lyeth CHAP. II. SECT 31. Of Atturnies BEfore a Plea put into Court by Essoignes by Attachment or by appearance of the Parties none is to be received by Atturney no more then a Plea is removeable out of Court into a higher Court where the Plaint or the Writ is not brought nor any is to be received by Atturney in a Plea which was nor in a Plea which shall be but onely in a Plea which is Pendant in the County Court or else-where or is brought by the Kings Writ and this Plea be afterwards removed into a higher Court. By this removing the Atturney is not removed for no Atturney is removeable unlesse he whose Atturney is come into the Court in proper person and remove him if not in case where one hath generall Atturnies for generall Atturnies may appoint speciall and remove them nor any can receive Atturnies after the Plea brought but the King or other warranted by a speciall Writ if not in the presence of the parties All may be Atturnies which the Law will permit Women may not be Atturnies nor Infants nor Villaines nor any who are in Custody or any other who is not free of himselfe nor any who is criminous nor any who are not sworne to the King nor any in any personall Action nor in an Accompt nor in Nativo habendo Plaintiffes notwithstanding they have Atturnies in personall Actions are not to appeare not answer in Judgement by no Atturney but he disseiseth his Clyent when he doth it The Contents of the Third Chapter OF Exceptions What is Exception and the division and order of excepting Exceptions Dillatories Of Exception of Clergy Exception of Bigamy Exception of the power of the Judge Exception of time Exception of place Exception to the person of the Plaintiffe Exception of Prison and of Ward Exception of Summons Exception of vicious Counts Exception of Approvers Excedtion to Indictments Pleas to Treason Pleas to Bâ—â—ning Pleas to Murder To Larcine To Burglary Of Rape Of imprisonment Of Mayhem and â—ounding Juramentum Duelli The order of Battaile Exception of Personall Trespasse Of Purprestures Of Treasontrove Of Wrecks Of Vsury Of Driving Of Obligation Of Attaint Of Oathes Homage Fealty annexed to Homage Common Oathes Of finall Accords CHAP. III. CHAP. III. Sect. 1. Of Exceptions IT behoveth the Defendant to Answer the Plaintiffes Declaration and because the people commonly know not all the Exceptions in Pleadings Countors are necessary who know how to advance and defend their Clyents Causes according to the rules of Law and the Costoms of the Realm and the more needfull are they to defend them in Indictments and Appeales of Felony then in personall or veniall Causes and the better to helpe our memory which every day inclineth to forgetsulnesse it is necessary to shew what is an Exception and the division of it and the order of Excepting or Pleading for some account them guilty who Plead not or Plead ill or not sufficiently for example If any one Vouch one to warranty and Judgement passe if he tell not the yeare or before what Judges the Judgement passed it is as if he had said nothing and so of other Cases and although a Plea be requisire neverthelesse every one is not received to plead for some are admitted to Plead without Tutors
in all Actions and some not but in Felonies Every one may Answer without a Tutor who is not forbidden by the Law The Law forbiddeth Married women to Answer without their Husbands but then we are to put a difference in the Cases for if she be within the age of one and twenty yeares she is not admitted to Plead in any Case without her Husband but in Case where her dis-inheriting or that which doth amount to as much doth appeare by the malice or negligence of her Husband if she be of full age then she shall so Anawer alone in cases of death and Felony and so it is of men within the order of Religion and of Villaines and of all those who are in Custody and are not delivered CHAP. III. SECT 2. What Exception is and the order of Exception or Plea APlea or Exception is a thing alleadged for Answer either to delay or barre the Action And there are two manner of Exceptions Dillatories and Peremptories The order to Plead is such that the Peremptory Plea is in the highest degree or the Dillatory may have a recourse to the Peremptory but not è contra And of Dillatories some are principall and some are secondary and from the secondaries there is no recourse to the principalls and according to their degrees are they put in partly to helpe out remembrance And some Exceptions are in Counts in Replications and Re-joynders and so forth untill the truth be cleared in the proceedings of the Pleas whereby one may surely come to give cleare Judgements Voucher to warranty lyeth not in personall Actions although that averrements by Record and Minements and Witneffes availeth CHAP. III. SECT 3. Exceptions Dillatories THere are many Dillatory Exceptions whereof the first is to the Judge and that many waies one unto the power of the Judge and that may be in two kinds by reason of the two kinds of Jurisdictions or because the King or his Iudge Deligate hath no Power or Counsance in the Cause as it is of the person of a Clerke by reason of the Priviledges of the Church or because the ordinary Iudge hath not power or Counsans of a thing done out of his Iurisdiction nor any one within a Franchise of a thing done in guildable nor Kings nor those of one Country or of one Land of things done in another Land or Country CHAP. III. SECT 4 Of Exception of Clergy FOr the Priviledge of Clergy as if a Clerke be ordered in Court before a Lay Iudge to Answer to an Action for a personall Trespasse and especially in a Case criminall and mortall Plead that he is a Clerke the Iudge hath no further Counsans of the Cause for the Church is so enfranchised that no Lay Iudge can have Iurisdiction over a Clerke though the Clerke will acknowledge him for his Iudge and in such a case he is without delay to be delivered to his Ordinary Neverthelesse to give Actions to Plaintiffes against the Accessories in Appeales and Indictments it belongeth to the Iudge Ex officio to enquire by the Oathes of honest men in the presence of the Clerke whether he be guilty or not and if he be 〈◊〉 thereof then he is without delay to be delivered to his Ordinary and the Plaintiffe shall Sue against the Accessories in the Kings Court and in the Spirituall Court against the Clerke and the Clerke after his due Purgation made shall without delay have all his lands and moveables delivered to him CHAP. III. SECT 5. Replication of Bigamy THe Exception of Clergy is sometimes Counterpleadable by a Replication of Bigamy in this manner Sit he ought not to enjoy the benefit of this Priviledge for he hath forfeited the same by the sin of Bigamy as he who hath Married a widow or many wives and note that Matrimony is the lawfull Order of joyning together of a Christian man and woman by their assents and as of the Diety and Humanity of Christ there is made an undissolveable Unity so was Matrimony and according to such Unity was such coupling found to be and therefore none can remaine in that Unity who takes to himselfe a Plurality and of a Plurality ariseth this offence of Bigamy which offence draweth Clerkes nearer the Lay Power And note that Bigamy may be two waies one by a Plurality of 〈◊〉 Vives as he who Marrieth two wives or more the one after the death of the other or out-living the other the other is plurality of Husbands as well as wives as it is of a widow who suffereth her selfe to be Married to another man whether her widowhood came by the death of her Husband or by Divorce and because it belongeth to say in what point a Clerke is Bigamus the Bigamy is triable in the Lay Court if neverthelesse the Jury doubt thereof then the Ordinary is to certifie the same at the Command of the King as in the case of Matrimony when it is denyed On the other side a Clerke is incounterable by other Replications as he is for being a murderer or a notorious lyer or of such a condition as the Church is not to protect him against the Kings Peace CHAP. III. SECT 6. Exception to the Power of the Jadge AGainst the power of the Judge the Defendant may help himself by other Dillatory Pleas in this manner Sir I demand the sight and the hearing of the Commission whereby you claime Juriâ—diction over me and if the Judge doe not deny it or cannot shew it notwithstanding that no Judge Deligate is compelable to shew his power yet may the Party plead thus Sir I appeale from this Commission because it maketh no mention of the Cause for which I was brought to Judgement or not of that point Or because you have no Counsans in such a point or because it is vicious and that may be divers waies as if it be not sealed with the Kings Seale of the Chancery for none is tyed to yeeld obedience according to the Lawes and Customes of the Realme to the Kings Privy Seale or to the Seale of the Exchequer nor unto any other Seale but onely to the Seale which is assigned to be known of the common people and especially in Jurisdictions and Originall Writs if not for the King only Or it may be vicious because the Seale is counterfeited or falsified or because the King is not named in the Writ he not being out of the Kingdome not in Ward or because the Writ containeth Summons in the Action where it is personall or Attachment where the Action is mixt or reall or because the Seale is not fastned to the Parchment but one may remove it and take it from it at his pleasure Or because the Writ was brought too late or too soone Or because it hath rasure or enterlining and diversity of hands and of words or false Latine Or because the Writ is written upon Paper or Parchment which is forbidden Or for default found in the Writ as the omission or transposition of
any falsity to me in deed or in word whereof he is Appealed or Impeached in Judgement if he deny it it is lawfull for me to prove the Action either by Jury or by my Body or by the Body of one Witnesse and if it be of the false Judgement of many then the proofe belongeth only against the pronouncer of the Judgement for the whole Court And so it is in case where you deny your Gift Baylement Pledges Deed Seale or other manner of Contract or the words which you spake or the deed which you did Neverthelesse you are to distinguish of the qualities of the Causes for in Appeales of Felony none can Combate for another as is said but in Veniall Causes although one be killed in the Battaile he committeth no Murder but onely those vanquished or their Clyents for them shall tender to the Combitants vanquishing forty shillings in name of Cowardize besides the Judgement upon the principall And in case where Battaile could not be joyned not there was no Witnesse the people in personall Actions used to helpe themselves by a Miracle of God in this manner If the Defendant were a woman or of such a condition that she could not joyne Battaile and the Plaintiffe had no Witnesse to prove his Action then the Defendant might cleare her credit by the Miracle of God or leave the proofe to the Plaintiffe and in the contrary case the proofe onely belonged to the Plaintiffe At the day of the proofe or of the purgation after the Benediction and the Malediction of the Priest cloathed with the holy Garments of the Masse and after the parties Oathes one used to keepe the party and he was to carry in his hand a peece of burning Iron if he were a Free-man or put his hand or his foote in boyling water if he were not Free or to doe some such thing which were impossible to doe without a Miracle from God and if he was not hurt or blemished the adverse Party remained as attainted but Christianity suffered not that they be by such wicked Arts cleared if one may otherwise avoid it Battaile is not to be joyned betwixt all people for it is not to be joyned but betwixt equalls nor yet betwixt all equalls for not betwixt the Father and the Son nor betwixt Women or Infants or Clerkes or Parents or Assignes Equalls are not a man and a woman nor a Holy man and an Excommunicate Petson nor a Christian and an Infidell nor a whole man and a sicke nor a man of good memory and a Mad-man nor a wire man and a foole not a sound man nor a man mayhemed nor a man and a childe nor a Clerke and a Lay Person nor a man professed in Religion and a Secular man not a true-man and a Felon nor a man within the Kings Alleagiance and out of his Alleagiance nor the Lord and Tenant The smallnesse also of the thing in demand doth hinder the Battaile and many other Causâ—s as it appeareth in the Law of Fees neverthelesse if those who are not receiveable to joyn in Battaise will Combate if the Bartaile be joyned betwixt them it is no wrong to them who desire it And if any one offereth himselfe to Combate with one armed who before was not brought by the Parties and the adverse Party de nand Judgement for the default of his adversary as if he rendereth a Witnesse who offereth himselfe to decide the difference and now he offereth to furnish the Battaile by another who was not seene nor heard in Court and who cannot and ought not to try the Battaile in such case it belongeth to try the Exception as peremptory to the Action if the Parties will not agree unto it Chap. 3. Sect. 24. Iuramentum Duelli AFter the Battaile joyned adjourned and presented the parties duly armed First the defendant is to swear in this manner Heare this you man who â—hold by the hand whom you call N. by name that I did never kill such a one your Father or said any such thing such a day c. So God me helpe and the holy Evangalist Afterwards the plaintise ought to sweare in this manner Hâ—are you this man who I hold by the hand That you who are called by your Right name N. are perjured because that you such a day c. felloniously killed c. Or said such words or did such athing c. Cap. 3. Sect 25. The Ordring of the Combatants AFter their Oathes be taken it behoveth to looke that the parties be Armed according to the ancient usage of what condition soever they be Knighte or others The Auncient usage to bee Armed in all Cases of Combate is this The Bodies are armed without Seme cotu et baliea And the heades and the necks and the hands uncovered the backs thyes Leggs and Feet armed which Iron And each to have a shield of Iron and a staffe â—orned of one Assise The Plaintise commeth into the List from the East and the Defendant from the West on the place they sweare in this manner That they have not about them any Charme not deceit not have cat not drunke any thing whereby the truth might be disturbed lessined and the Law of the Divill enhaunced So God them helpe and the holy Evangelists Then Proela nation is made that none disturbe the Battaile and Oyes is made that there be no noise upon a Corporall punishment And then they meet together and if the defendant defend himselfe till after the Sun setting and demand Judgment of the default of the Plaintife In that case Judgement shall be given for the defendant And if any fraud bee found with one of the parties as to be privily armed or there â—s ound or other thing unallowable and the fraud be adjudged that they be presently severed and Judgment is present ly to be given and the vanquished is to acknowledge his offence in the hearing of the people or speake the horrible word of Cravent in the name of Cowardize or his left Foote to be disarmed and uncovered in signe of the Cowardize and that Iudgment be presently given against the Principall Cap. 3. Sect. 26. AS to personall Trespas in the Case this exception lyeth Sir Hee wrongfully impleadeth me of this Trespas for the same man impleaded such or such before such Iudges in such a place of the same Trespas and made me no partie to the suit and for asmuch as that hee then recovered by Iudgment his full damages against them named in his plaint And this suit is not brought against mee but to recover damages and the Law is That a man shall not recover double damages I demand Judgment of his Action As to the Allienations and Occupations of Franchises Reals Appendants to the Crowne a man shall not vouch therein to warranty not demand the View not prescribe in them for of such dignities none can helpe himselfe by a plea of long prescription but such avowries of long Continuance are accounted rather prescriptions
Seale in case where it should make those Officers inobedient of right and to the King and should charge others to doe such Commandement 63 It is abuse to put these words in Writs Nisi captus sit per speciale perceptum nostrum vel Capitalis Justiciarii nostri vel pro forresta nostra c. for no speciall Commandement ought to exceed the Common Law 64 It is abuse to suffer the Judges to be Plaintiffes for the King 65 It is abuse that Aliens or others who have not sworne fealty to the King or infamous persons or Indicted or Appealed of mortall Crime or who have not an able Commission or after any wrong done or after Judgement given be suffered to have Jurisdiction or to Judge out of the points specified in their Commissions 66 It is abuse that in Appeales by Pleaders are the Pâ—aces and the Countries and the houres of the daies and that it is against the Peace since every offence is against the Peace and such other words needlesse 67 It is abuse to abate sufficient Appeales according to the Statute of Gloucester 68 It is abuse that the remediall Writs are saleable and that the King Commands the Sheriffe that he take Sureties to his use for the Writ for and by the Purchase of these Writs one may destroy his eremy wrongfully and because that such Fines and Penalties â—un in Estreates though they doe nothing but hurt to the Purchasor theref 69 It is abuse that Forraigners are not receiveable in Actions by Suâ—â—ties of Freemen who have not wherewith to finde Pledges 70 It is abuse to distreire in personall Actions where the profit of the Issues comes to the King and no profit accrueth to the Plaintiffes 71 It is abuse that any Plaint is received to be heard without Sureties present to testifie the Plaint to be true 72 It is abuse that it is said that Villinage is not a Franck Tenement and that an Assize lyeth not of an ejection for term of years as well as it doth of a Franck Tenement for terme of life or in Fee for a Villaine and a Slave are not all one either in name or signification for as much as every Free-man may hold in Villinage to him and his Heires performing the services and charges of the Fees 73 It is abuse to hold that seisin accrued not to the Purchasor when the Donor left his goods for as a Contract of Marriage is good by the consent of the wills of men and women although that one of them repent and after the Marriage would withdraw himselfe but he cannot thereby dissolve the Contract so as well it sufficeth to make the Contract by the delivery of seisin as by the celebration of the Marriage although the Purchasor have no other seisin by taking the Esplees nor any Deed. nor writing to testifie the bargaine and if it were that a Woman after the Marriage were ravished and consented thereto and the Husband repleeve her and the ravisher answering to the Contract say That the Husband had no right nor action because he was never sully seised by taking the Esplees nor had no Deed or said that he was never out of seisin of the Woman because she was clothed with his Robes and by her robe she remained in his seisin this Exception nothing availeth him to excuse his wrong no more then in this case If a man buy a Horse and agree with the seller and the seller deliver the â—â—ne to the buyer notwithstanding that the seller repent of the bargaire and forceably take backe the Horse although the buyer hath no Action for the same because he remained alwaies seised thereof at will such Exception is not good 74 It is abuse to thinke that Contracts for goods not moveables are otherwise then for moveable goods 75 It is abuse to thinke that seisin accrueth not as soone to a Purchaser of his Purchase as to an Heire of his Inheritance since the Law requires but three things in Contracts 1. The agreement of the Wills 2. Satisfaction to the Donor 3. Delivery of the possession and gift If a transâ—â—tation of seisin be given to the Purchaser by the Donor at the houre of one of the Clocke and the Purchaser dyeth at the houre of three of the Clocke he dyeth as well seised of the Tenement as he should be of a Woman or a Horse though the Donor have not departed with and removed his Chattels and it shall never be a good Plea for him to say That the Free-hold after the transmutation of seisin by a simple Livery remained in the Donor after this Livery of the Tenement but if the agreement of the Donot be not performed according to the Contract then he may 〈…〉 thereby 76 It is abuse to 〈…〉 at are cannot recover a 〈…〉 Pâ—â—â—entments to Church 〈…〉 since many Reasons 〈…〉 to Reddissesors 77 It is abuse that 〈◊〉 are not granted in Chancery without difficulty to Attaint all false Jurours as well in all other Actions Personalls realls and mixt as in Assizes brought 78. It is abuse to drive a Distresse out of the Hundred 79 It is abuse to make the view of the Distresse to Bayliffes in that a Plaint will suffice and a Court and that he is yet seised thereof 80 It is abuse that we doe not sue for a Tortious Distresse by way of Felony and that one attaint not these Robbers at the Kings Suit 81 It is abuse that vicious Contracts are by agreements maintaied by Law as forbidden of offence Is not Usury an offence is not Imprisonment an offence how can one binde himselfe to Usury or to Imprisonment or a Disseisin if he doe not offend 82 It is abuse that Advowsons of Charters are aliened by Law for yeares in Morgage or to ferine or are partible 83 It is abuse that Leases of Fermes are not longer then forty yeares since continuance of seisin by length of time doth dis-inherit no man 84 It is abuse that no Land is let to ferme or in Fee or for yeares rendring Rent by the yeare more then the fourth part 85 It is abuse to Oat-law a man for a default in case where the principall cause is not felony 86 It is abuse that Auditors are appointed by the Lords to heare Accompts without the assent of Bayliffes 87 It is abuse that Bayliffes have no recovery of damage from Tortious Auditors 88 It is abuse that regard is had to the persons when such Law is not for Bayliffes against their Lords aâ—e contra in the right of Debts due by the one to the other 89 It is abuse that a man may challenge one for his Neise to whom he never found sustinance in as much as a Villaine is not a Villaine but so lorg as he remaireth in custody and since none cara challenge his Villain for Villinage though he be in his custody if he finde not sustenance to his Villaine or send him to some Land in his Mannour where he may gaine his living
or otherwise retaine him in his service 90 It is abuse that Villaines are Frank pledges or Pledges of Free-men 91 It is abuse that others suffer Villains to be in their Viewes of Franck-pledges 92 It is abuse that the Lords suffer their Villaines to plead or be impleaded without them for a Villaine is not Amerceable in any other Court because he can lose nothing as he who hath nothing proper of his owne 23 It is abuse to hold Villaines for Slaves and this abuse causeth great destruction of poore people great poverty and is a great offence 94 It is abuse that a man is Summoned who is no Free-holder 95 It is abuse to Summon a man elsewhere then in the Land contained in the demand if it containe Land 96 It is abuse that a man travaile at his owne Charges by any Summons personall 97 It is abuse that a Justice or other make a Summons who is not a Free-holder within the County 98 It is abuse to Summon men without giving them reasonable warning upon what to Answer 99 It is abuse that false Causes of Essoignes are admitted for as much as the Law alloweth falsity in no case 100 It is abuse that an Essoignor is admitted in a personall Action to the Defendant since one is Maine-prised to appeare in Court by Maine-prisors 101 It is an abuse to receive an Essoigne cast in by an infant within age 102 It is an abuse to receive an Atturny where no power so to doe is given by Writ out of the Chancery 103 It is abuse to receive an Atturney where the Plea is not to be judged in the presence of the Parties if not in case where one maketh an Atturney generall 104 It is abuse that none can make an Attuoney in personall Actions where Corporall pnnishment is to be awarded 105 It is abuse to receive Exceptions in Judgements if they be not sufficiently pronounced for from the Order of the Exception early ariseth cleare Judgement 106 It is abuse to allow a warrant of Voucher to a Theife or in other personall Action 107 It is abuse that Judges Assigned shew not the parties pleading their Warrants or of his power when they demand it 108 It is abuse that Justices and their Officers who kill people by false Judgement be not destroyed as other murderours which King Alfred caused to be done who caused forty foure Justices in one yeare to be hanged as murderours for their false Judgements He hanged Darling because he had Judged Sidulf to death 1 Darling for the retreat of Edulfe his Son who afterwards acquitted him of the fact He hanged Segnor 2 Segnor who judged Vlfe to death after susfficient acquittall He hanged Cadwine 3 Cadwine because that he judged Hachwy to death without the consent of all the Jurours and whereas he stood upon the Jury of twelve men and because that three would have saved him against the nine Codwine removed the three and put others upon the Jury upon whom Hachwy put not himselfe He hanged Cole 4 Cole because he judged Jve to death when he was a Mad-man He hanged Malme 5 Malme because he judged Prat to death upon a false suggestion that he committed the felony He hanged Athulf because be caused Copping to be hanged before the age of one and twenty yeares 6 Athulf He hanged Markes because he judged During to death by twelve men who were nor sworne 7 Markes He hanged Ostline because he judged Seaman to death by a-false Warrant 8 Ostline grounded upon false suggestion which supposed Seaman to be a person in the Warrant which he was not He hanged Billing 9 Billing because he judged Leston to death by fraud in this manner he said to the people Sit all yee here but he who assisted to kill the man and because that Leston did not fit with the other he him commanded to be hanged and said that he did-assist where he knew he did not assisted to kill him He hanged Seafoule because he judged Olding to death 10 Seafoule for not answeriâ—g He hanged Thurston because he judged Thurguer to death by a verdict of Enquest 11 Thurston taken Ex officio without issue joyned He hanged Athelston 12 Athelston because he judged Herbert to death for an offence not mortall He hanged Rombold because he judged Lisilâ—ld 13 Rombold in a case not notorious without Appeale and without Endictment He hanged Rolfe 14 Rolfe because he judged Dunston to dye for an escape out of prison He hanged Freburne because he judged Harpin to dye 15 Freburne whereas the Jury were in doubt of their Verdict for in doubtfull causes one ought rather to save then to condemne He hanged Seabright who judged Aihebbrus to death 16 Seabright because he condemned one by a false judgement mortall He hanged Hale because he saved Tristram the Sheriffe from death 17 Hale who took to the Kings use from another goods against his will for as much as any such taking from another against his will and Robbery hath no difference He hanged Arnold because he saved Boyliffe 18 Arnold who robbed the people by colour of Distresses whereof some were by selling Distresses some by extortion of Fines as if betwixt extortion of Fines releasing of tortious Distresses and Robbery there were difference He hanged Erkinwald because he hanged Frankling 12 Erkiu wald for nought else but because he taught to him who vanquished by Battaile mortall to say the word of Cravant He hanged Bermond because he caused Gâ—â—bolt to be beheaded by his Judgement in England 20 Bermond for that for which he was Outlawed in Ireland He hanged Alkman because he saved cateman by colour of Disseisin 21 Alkman who was attainted of Burglary He hanged Saxmond because he hanged Barrold in England 22 Saxmond where the Kings Writ runneth for a fact which he did in the same Land where the Kings Writ did not run He hanged Alflet because he judged a Clerke to death 23 Alflet over whom he had not cognisance He hanged Piron because he judged Hanting to Death 24 Piron because he gave judgement in Appeale before the forty daies pendant the Appeale by a Writ of false judgement before the King He hanged Diling because he caused Eldon to be hanged 25 Dilling who killed a man by misfortune He hanged Oswin because he judged Fulcher to death out of Court 26 Oswin He hanged Muclin 27 Muclin because he hanged Helgrave by warrant of indictment not speciall He hanged Horne 28 Horne because he hanged Simin at daies forbidden He hanged Wolmer because he judged Graunt to death by colour of a Larcine of a thing 29 Wolmer which he had received by title of baylement He hanged Therberne because he judged Osgot to death for a Fact 30 Therbern whereof he was acquitted before against the same Plainetiffe which Acquittance he tendred
he who bound himselfe to warranty would not warrant the Land not vouch over it appeareth thereby that the Ancestor was Tenant by a naughty title and that he was possessor thereof by an ill way and if the Heire had nothing whereby to discharge him the Tenements bound to warranty should be recovered And if the Heire had nothing whereby to discharge not no Land is found bound to the warranty if the Purchasor lost his purchase it was at his owne perill and accounted his owne folly the better at any other time to looke to his assurance CHAP. V. SECT 5. Articles upon the Statute of Westminster 2. THat which is said of the Statute of Westminster 2. which faileth in many cases is now to be understood for against all Trespasses is the Law made although it be dis-used or controuled by those who know not the Law And the three first Chapters are not Statutes but are the revocations of the Errours of negligent Judges for the Law permits not that a man make a better estate to another then himselfe hath but requireth that every lawfull Contract be made according to the wills of the speakers and that which is in the Statute that if a Fine be leavied in deceit of right that the same be null is reproveable but it might have been better said That for that Fine that no man be barred of his right for the Fine leavied cannot be rightly said null but it holds in force and barreth at the least the Donor of his Action The point if Distresses doth not repeale any Errour but affirme them as before appeareth in the second beoke And that which is said in the second Statute that Suitors in Counties have no Record is but abusion since every lawfull restimony is a Record and every false testimony is a lye and as lawfull may other people testifie as the Justices assignned Is not the same Writ abused to grant to Counties Records in Outlawries Pledges Maine-prises Battailes Grand Assizes and other Cases and not other points and to deny that the Sheriffes or Lord of the Fee or other to whom the King sendeth his Writ hath not as well Record of Processe before him as those whom they call Iustices is but Errour And as to the causes of Writs of paines is suffered great Errour that that which is not warranted in the Accessory that he may 〈…〉 in the principall since the Law permits that none be aided by a lye or a vicious Writ Of the other side because there is more realty in the Statute then personalty as more Attachments are awarded in personall Actions then in mixt and realls The point of Measnes is reproveable as to the Proclamation and as to the non-acquittance of those who hold by lesse service then the Measnes for be it that B. hold one hundred pound Land of D. by the service of twenty pound per annum and the same B. give the moyety thereof in Frankalmoigne or Frank marriage or to hold by the service of a Rose to C. if it happen that the same B. forfeited what he hath by this Statute no remedy is ordained for C. who was purchasor from B. and therefore the old course is to be holden which is said before in Iudgements The remediall Statute of the right of the Wife lost by the default of the Husband is reproveable for the old Law was that a woman after the death of her Husband should repleeve her Inheritance or purchase so lost summoning the Tenants for a Cape is not but a distresse and ejection of seasin saving every right and it is lawfull for one of the Tenants in common to defend his right where he is damnified by the negligence or the non ability of his Partner In the same manner may a Woman according to Law in the right of her Husband neither doth the Law give to Widowes Action to demand Dower in the cases named in the Statute but in all cases the Law enables her to be received by Lawfull reversing of the Iudgement And that which is contained that Tenants may vouch to warranty is but abuse how holdeth voucher place where a Writ lyeth not yet is it understood with a saving that no jurisdiction of a Iudge assigned extend to other Persons then those who are named in the Writ and that none shall vouch more then in the same Writ are named by Writ of Replegiare and therefore are warranties attainable and determinable by Writs The Statute following which Ordaineth new Writs remedialls after defaults is prejudiciall to Lords of Fees who lose the advantages of their Courts because that Writs of Right are forbidden in such cases where they wont to be used Presentments to Churches ought not to be but in the names of those to whom the meere right of the Advowson doth belong according as is said before in Contracts and it is errour and abusion of Law to endow women of Advowsons or to Lease them to Farme or for the terme of anothers life or in Frank-marriage or in Mortgage or in Fee-tayle or otherwise then in Fee-simple And those who receive Clerkes presented to Churches in prejudice of those to whom the meere right in Fee doth appertaine are bound to make restitution of the damages and those who have recovered to Jurours by whom they were certified of the right of the personage and so it appeareth that the punishment lyeth more against the Bishops then the presentors And that which enacteth long Imprisonment for a punishment is but abuse since none is imprisonable if not for a wrongfull imprisonment The Statute of Warranties is but a revocation of Errour used against Law The Statute of Admeasurement is reproveable in many points as to the Proclamations since admeasurement and surcharge are to be by Jurours The Statute of Measnes is reproveable in many points as it appeareth in the Chapter of Distresses Contracts and defaults and the same appeareth in the end of the Statute where the Plaintiffes know not a set fine The Statute of suspension of Writs in Eyres is reproveable as repugnant to the great Charter which saith we will sell no Right nor detaine it and wherefore are Writs rebuttable from heating but for the multitude of Writs which are and for the small number of Justices the right of many perish The Statute of obligees in Accompt is reproveable in many points one as to the exception to the Persons for the Masters is ordained recovery and to Serjeants not when Auditors are assigned without the consent of the servants The other that the Auditors are not tyed to allow any thing but at their pleasure without punishment Another that the recovery is ordained by detinue of the servants and not against the Surety not the goods Another that the Lords are not to be Attested according as of the servants Another that the wickednesse of Auditors remaineth unpunished Another of Outlawry for none is to be imprisoned if not for a tortious imprisonment The Statute of Appeales is reproveable in
the Coroner hath the Record yet I thinke the Law is otherwise And if one be indicted for Murder and afterwards an appeale is brought against him and after Declaration the Plaintiffe is Non-suit the Appellee shall be arraigned at the Kings Suit upon the Declaration and not upon indictment as it is holden in 4. E. 4. Note that it was said by some Justices in times past That in every case where the Defendant pleadeth a matter whereby he proveth that the action doth not lye for the Plaintiffe as Bastardy or never accoupled in loyall Matrimony c. there he need not to answer to the Felony but if he pleadeth a release in Bar then he ought to plead to the Felony because it is not denyed by him that the Action once lay for the Plaintiffe for when he pleadeth to the Felony then he confesseth that the Plaintiffe is such a person who can maintaine the action yet it was said to the contrary That he shall not plead to the Felony infauorem vite where otherwise if the plea were found against him he should be attainted and the Felony not enquired of and that seemeth to be both reason and Law c. And note that when a man is found guilty for Murder or Felony c. for which he suffereth death he may pray his Booke to save him if he be a Clerke and shall have it if he can read But if that Bigamy at another time convicted be alledged against him and proved then he shall not have his Clergy And it was said That if the Ordinary refuseth a Clerke generally or specially that the Judge may compell him to accept the felon But the old Law was That if the Ordinary had refused him specially as to say Non habet vestem Clericalem non habet consuram yet the Judge might compell him to accept of him But if the Ordinary doe refuse him generally the Judge cannot compell him to accept of him because there may be some cause wherefore the Ordinary by the Law of Holy Church ought not to receive him But that opinion as it was said was altered in the time of William Hussey and his reason was That if this Judge be his Judge where the Ordinary refuseth him specially it is as great reason that he shall be his Judge where he refuseth him generally And see that those who are so attainted of Murder or of other Felonies and for such things as they shall suffer death they shall forfeit their Lands and Tenements and their goods and chattels for ever and the King shall have the Lands for a yeare and a day and then the Lords of whom the Lands are holden shall have them But he who is attainted of Treason the King shall have all his Lands as well those which are holden of other Lords as those which are holden of himselfe c. And if a man hath Land in the right of his Wife and is attainted of Felony the Land shall be forfeited for the terme of his life and it was said That if before the Attainder he and his wife were disseised and afterwards he were attainted and restored to the Kings peace yet they could not have an Assize Tamen quaere Appeale of Rape NOte also that the Appeale of Rape beginneth thus Robertus Wood nuper de A. in Comitaâ—â— Salop Clericus dict R. W. nuper de A. in comitatu predict capellanus Rector Ecclesie patochialis de A. in comitatu predict Or thus Nuper de D. in comitatu predict gent. alias dict R. S. nuper de D. in com predicto yeoman attachâ—atus fuit per corpus saum ad respendendum Alicie G. de rapiu ipsius Alicie paâ—e Dom. regis nunc fracta unde eum appellat Et sunt plegii de prosequend A. D. de C. in comit C. gentleman E. I. de M. in comitat C. yeoman c. Et unde eadem Alicia in predict persona sua instanter appellat predict R. W. de eo quod ubi predict Alicia fuit in pace dei Domini Regis nunc apud A. in predict in comit Salop 8 die mensis Maii ann Regni Dem. Regis 17. circa horam sextam post meridiem ejusdem diei ibidem venit predict S. felonicè ut felo predict domini regis nunc insideand insultu premedita contra pacem ejusdem dom regis coronam dignitatem suas die anno hora loco in comitatu predict in prefatam Aliciam ad tunc ibid. insultum fecit ipsam ad tunc ibid. de virginitate defloruit contra voluâ—tatem suant raduit carnaliter cognovit sic predict R. S. predict Aliciam modo forma predict rapuit quam cito idem felo feloniam raptum predict fecissit fugiit dictaque Alicea ipsum recenter insecuta fuit de villa in villam usque quatuor villas propinqiores ulterius quousque c. Et si idem felo felontam et rapt um predict in forma predict imposit didicere velit predict Alacia hoc parata est verificare et versus eum probare prout curia c. And if a man Sueth an Appeale of the Rape of his Wife although she be not his Wife in right but in possession yet the Appeale doth well lye as is said otherwise it is in an Appeale of murder brought by a woman of the death of her Husband for there it is a good plea that they were never lawfully coupled in Matrimony Appeale of Mayhem SEE also that the Appeale of Mayhem is as followeth viz. I. N. in propria persons sua hic instanter appellat W. de F. de eo quod cum idem quaere tali die anno fuit in pace dei et Dom. Regis nunc c apud talem villam in tali comitatu circa horam sextam c. Ibi venit predict W. vi et armis viz. baculis ut felo domini regis nunc insidâ—and et ex insulta premeditete ad tunc ibid. indiction I. insultum fecit et adâ—tunc et ibid. own quodam baculo precii c. quem predict W. in manibus suis ad tunc et ibid. tenuit predict querentem super brachium dextrum felonicè tunc purcussit per quod vene et necui brachii sui perdict restricti fuerunt ac neci et mortisicat dâ—venerunt Or cum quodam gladio vel cultello precii c. quem defendens in manibus suis ad tunc et ibid. tenuit manum dexteram vel policem manus dextere vel aliud membrum vel auriculam vel aliquam juncturam membri querentis felonicè amputavit vel oculum suum evulsit vel dentes suos anteriores fregit et deposuit Et sic idem defendens ut felo Dom. regis predict quer ad tunc et ibid. felonicè mayheymavit contra pacem dicti Dom. Regis Coronam et dignitatem suus Et si defendans hoc velit dedicere querens hoc paratus est versus