as take the case he were seased of them but in right of his wife and hath issue and dyeth his issue is in the kinges warde for the lande that his father helde in Capite and afterwarde the wife dyeth the issue beynge still in warde the Kynge shall haue Prerogatiue in these landes of the wyfe also because the husband was seased of them in his demeane as of fee the daye of his deathe and so wythin the compasse of this statute And this case may you see in M. 13. H. 4. 6. 13. H. 4. and note that notwithstandinge this statute speaketh but of landes yet seruice are to bee taken by the equitie of the same as it is plainlye proued by the woordes of Diem clausit extremum which saieth Quantum terre tenet de nobis aut de aliis tam in dominico quam in seruicio So that if one holde of the kinges tenaunt by certeine seruices the King shal haue the seruices in warde for they be in nature and place of the lande that is holden and so shall it bee supposed And therefore when the kinge hath those seruices in warde and the tenaunt that holdeth by those seruices diâ—th his heire within age if the saide seruices were knightes seruice the Kinge shall haue warde by reason of wardshippe But yet by that noe prerogatiue in the other landes of the second warde whiche are holden of the other Lordes M. 6. R. 2. in Fitz. ti Gard P. 105. as it may appeare in 6. R. 2. For the kinges tenant was neuer seased of those other landes ne yet of the seruice that they were holden by and so without the compasse of this prerogatiue Like lawe it is where the Kinge hath the temporaltie of a bishop in his custody duringe the tyme the Sea is vacant and one that holdeth of those temporalties by knightes seruice dieth his heir wtin age the king shal haue the wardship of him the reason of it is because the king hath the wardship of the teÌ„poralties by reasoÌ„ wherof this wardship cometh whiche temporalties the kinge hath in warde by the order of the common lawe in lure corone For they bee barronies which can be holden of none other then of the kinge in capite and then by the common lawe I take it he were no better then a common person yet his highnes must haue the wardshippe of them that holde of those temporalties by knightes seruice if they falle duringe the time the saied temporalties be in his hands with such landes as they holde of those temporalties but not with such lands as theye holde of other and than must the heire thereof when he coÌ„meth to his ful age sue a liuere as shalmore plainly appeare when we come to the thirde chapiter of this prerogatiue The wordes of the statute before resited are in dominico suo this woorde demeane is not here taken to bee the verie possession or takyng of the profits for if the kinges tenauÌ„t dye seased but of a reuercion or of a remaynder in landes holden of a common person and duringe the minoritye of his sonne the particuler tenaunte dyethe the kynge this notwithstanding shall haue this lande in warde as he hath the rest as it may appeare 22. H. 6.15 E. 4. 46. E. â— M. 22. H. 6. f 20 M. 15. E. 4. f. 10. P. 46. E. 3. fo 10. So it is if the kinges tenaunt dye seased of an aduowson appendaunt to landes holden of a common person The woordes be further die quo obierunt and therefore if the kinges tenaunt dye seased of Landes holden of a commen persone and a straunger abbatethe yet the heire shal bee in warde and the kyng maye entre and so is it if the heire recouer by assise of nâ—ortdauncestre as it appeareth in the newe Natura breuium fol. 2â—â— T. 12. R. 2. But take the case to bee that the kinges tenaunte dye not seased but is disseised and dyethe whether in this case the kynge maye haue prerogatyue or not and it semethe that hee may for in all suche cases where the heire hath a right of entre the kynge may entre in name of the heire and holde it afterwarde in warde but yf the heire haue but a title of entre or ryghte of accion it seemethe to be otherwise howebeit looke for those maâ—â—ers in the sayde booke of 15. E. 4. 12. H. 7. 18. Edwardi tertii lib. ass P. 18. T. 12. H. 7. fo 17. Where it is adiudged that of landes holden of the kynge in chiefe the kynge as in ryghte of hys warde myghte sease by a Scire facias vppon a tytle of entre And note also that there is somewhat more to bee vnderstanden beare thenne is wrytten or expressed that is to saye that the saide Landes muste discende too the kynges warde for notwythestandynge the kynges tenaunt weare seased in hys demeane as of fee daye of hys deathe in landes holden of a commen persone yet if the same after hys deathe doe not discende to the kynges warde but to an other heire M. 12. E. 4. f. 18. the kynge shall not haue prerogatiue in them as it appearethe in 12. Ed. 4. The woordes of the statut bee also De quocunque tenuerunt Put case the kinges tenaunte is seased of certayne thynges whyche neyther are holden of the kynge nor yet of anye other whether shall the kyng haue them in warde or not as Merket warrâ—n A. 3. H. 7. f. 4 21. H. 6. f. 12. 46. E. 3. f. 10. 15. E. 4. f. 12. Rente Secke or aduowson en grosse and as it should appeare in 46. E. 3. 21. H. 6. the kynge cannot haue them in warde and yet in 15. Ed. 4. soome holde oppinion to the contrarye therefore inquere and learne what the lawe wil in these cases The woordes of the statute bee Per huiusmodi seruicium that is to saye by lyke seruice Bye these woordes the landes that are holden of other muste bee holden allso by knyghtes seruice or els the statute extendes not to them and yet the lawe is taken to the contrarye for yf the lands holden of other bee holden but in socage or free burgage the kynge shal haue prerogatiue in them as it appearethe in P. 24. E. 3. f. 13. T. 9. H. 3. ti Prerogatiue in fits â— 25. 24. E. 3. for this statute is but a confirmacion of the common lawe and therefore shall bee taken by equities and namelye when the lawe was so taken in 9. H. 3 whiche was longe time beefore the makyng of this statut Howebeit Bracton and Britton dothe extende this prerogatiue no further then to landes holden of other by knightes seruice therefore enquire for the cause and reason thereof Bracton li. primo de custod et releuiis Britton f. The woordes bee further Exceptis feodis archiepi cantuar ' c. This exception extendes not to the bodie wherefore the kynge shall holde that in warde
saye wheather his grauntee shall haue the same prerogatiue in the bodye of the chylde as his highnes mighte haue hadde M. 12. E. 3. in Fits ti Preroga p. 25. et M 14. H 4 in Fits ti Garde P. 86. in case the seignorie had styll continued in hym And it appearethe in the .12 E. 3. .14 H. 4. that if the kynge graunt the seignorye to an other in fee simple that the grauntee shall haue noe prerogatiue beecause there remaynethe nothynge in the kynge of that seignorie vngraunted But if the graunt weare made to a common persone for noe longer tyme then duryng his lyfe and the reuersion saued to the kinge then learn what the lawe will in that case H. 5. E. 3. in Fits ti prerogatiue P. 20. for wee haue in .5 Edwarde the third that wheare the graunt was made to the Queene for terme of her lyfe the reuersion in the kinge that her grace hadde prerogatyue euen as the kynge hymselfe shoulde haue hadde and for none other reason there made but onely beecause shee helde in ryghte of the kynge But a man may adde further to that reason and saye that her grace a common persone bee not lyke for thoughe shee bee a persone exempte from the kynge and maye sue and bee sued in her owne name yet that that shee hathe is the kynges and looke what shee losethe so muche departe the from the king and therefore all her tenauntes of parcell of her estate maye haue ayde immedyatlye of the kynge wytheoute makynge her partye or pryuye theruntoo and so shee holdethe merelye in the kynges ryghte but a common persone doothe not so For the kynge hathe nothynge soo doe wythe the thynge that hee holdethe durynge the lyfe of the lessee howebeeit yf the graunt bee made to the Queene for terme of her lyfe the remaynder ouer in ferâ—â— yt seemethe that her grace gettethe no prerogatyue M. 24. E. 3. f. 34. and so yt is sayde in .24 Edwarde the thirde Lyke lawe is it if the kynge graunt an honor to the Lorde prince and hys heires kynges of Englande M. 21. E. 3. f. 4â— it seemethe by the better oppinion in 21 Ed. 3. that the Lorde prynce shall haue there wythe the kynges prerogatiue beecause it is not seuered from the crowne after the fourme as it is geeuen for none shall bee inherytoure thereof but kynges of this realme And note well that notwythstandynge the lawe weare so that none in thys case but the Queene or prynce myghte haue the kinges prerogatiue yet if the kyng hauinge the seignorye in hys handes after that the warde dothe falle graunt the same warde ouer the grauntee shall haue and enioye the preferrement of the maryage agaynste the other Lordes euen as the kynge shoulde hymselfe beecause that notwythstandynge anye suche graunt yet the kynge is sayde styll gardeyne and the infaunt dryuen to sue for hys lyuerye at the kynges handes whenne hee commethe to hys full age and not at the handes of the grauntee A. 13. H. 4. in Fits ti prerogatiue P. 24 whyche in this case is but onelye as a commyttee And so is the booke in 13. H. 4. Lyke lawe is it in the case aboue remembred wheare the Queene hathe prerogatiue and the warde fallethe and shee grauntethe her wardeshyppe ouer her grauntee shall haue preferrement in the mariage before all other lords And the also appeareth in the sayd 5. E. 3 howebeit that case was enforced by that that the kynge confirmed the state of the grauntee H. 5. E. 3. in Fits ti Preroga p. 20. lyke lawe is it yf the kyng haue a warde of righte of his corone and graunteth it ouer with special wordes that is to say that the sayd grauntee shal allso haue warde by reason of wardeshippe yf it fall durynge the mynoritie of the firste warde in this case if there fall a warde whyche holdethe by posterioritye of the heyre that is in warde yet that notwythstandynge the said grauÌ„tee shall haue the preferment in the warde of the body and mariage eeuen as the kynge hymselfe shoulde haue hadde yf hee had made noe suche graunt beecause it is merely in the kynges righte whyche remaynethe styll lorde and the grauntee none other but as it weare hys comyttee H. 12. H. 4. in Fits ti Gard P. 81. and thys appearethe also in the. 12. yeare of kynge Henry the fowerthe The thyrde chapiter ITem Rex habebit seisinam post mortem eorum qui de eo tenent in capite de omnibus terris et tenementis de quibus ipsi fuerunt seisiti in dominico suo vt de feodo cuiuscunque etatis heredes eorum fuerint capiend ' exitus eorundem terrarum tenementorum donec facta fuerit inquisitio prout moris est et ceperit homagium huiusmodi hered ' In the .52 yeare of kynge Henry the thirde longe time beefore the wakynge hereof was there an other statute made at Marlebridge concerning this matter In the .16 chapiter whereof it is thus prouyded De hereditate autem que de dnÌ„o rege tenetur in capite sic obseruaÌ„d ' est vt dominus Rex primam habeat inde seisinam sicut prius inde habere consue uit nec heres nec alius in hereditatem illam se intrudat priusquam illam de manibus domini regis recipiet prout huiusmodi hereditas de manibus ipsius et antecessorum suorum recipi consueuerit et hoc intelligatur de terris feodis que ratione seruicij militaris socagij vel seriantiae siue iure patronatus in manibus domini regis esse confueuerunt Both these statutes declare themselfes to bee of none other force then as a confirmation of that that was the kynges prerogatiue by the order of the comon lawe as it may appeare by these wordes prout moris est sicut prius habere consueuit recipi consueuerit esse consueuerunt And therewyth agreeth also Britton fo 167 The woordes of the statute bee Rex habebit primam seisinam what prima seisna is it is declared by the words that follow sÌ„ capiendo omnes exitus c. by whiche words it may appeare the kynge shal not onelye seise but also receaue the hole profites tyll lyuerye bee sued which suit moste commonlye hathe bene and is within the yeare and daye nexte after the deathe of his tenaunt and therefore the kynge vsethe to take no more then the firste fruites that is to saye one yeares profites if there bee not apparaunt defaulte in the heire that hee will not sue hys lyuerie in whiche case then the kynges highnesse shall bee aunswered of all the profytes taken tyll lyuerye be sued or at the least tended and after pursued withe effecte yea and if it bee a generall lyuerie and not ryghtefullye pursued accordinge to the order of the lawe the kynge shall reseise and bee aunswered of all the meane profites from tyme of suyng of the sayd lyuerye
for when the lyuerie is missued it is as it had beene neuer sued Howebeit thys reseisure shall not bee wytheoute a Scire facias as I shall thereof speake more at large hereafter But yf the heyre or he that should sue lyuerie doe make a rightfull suite for the same according to thorder of the lawe and asmuche as in hym lyethe to do to haue liuerye howebeeit the kynge will not but willbee aduised ere hee make hym lyuerie and so protracte the time in this case his highenesse of ryghte maye not haue the profites from the tyme the partye was thus delayed but ought to restore theÌ„ vnto the partye vppon his lyuerye as maye appeare in the firste yeare of Henrye the seuenthe H. 1. H. 7. in Fits ti Liuery P. 18. And thereuppon it is to be noted that there be two kynde of lyueries the one generall the other speciall The generall is the liuerye that this statut speketh of the especial may be more properly treated of when wee come to the 12. chapiter of this prerogatiue And this generall lyuerie is sometime made cum exitibus and sometimes sine exitibus but for the most parte sine exitibus for wheare it is made cum exitibus from the time of the seisure there it is properlye noe liuerye for it appearethe the kynge neuer seised rightfully or by anye title As for example if the kynge will seise the lande that is founde in thoffice to be holden of Tharchebyshoppe of Canterburye or Byshoppe of Durham or anye suche persones as are exempted in the first chapiter of this prerogatiue in this case they shal haue an Ouster le main vna cum exitibus H. 16. E. 3. in Fits ti Liuere P. 29 as it appearethe in 16. E. 3. The same lawe is it yf of landes holden in capite there be a lease made for terme of lyfe the remainder ouer to estraunger 14. H. 4. f. 34 18. E. 3. f. 21. 24. E. 3. f. 27. tenaunt for terme of lyfe dyâ—th and this matter founde by office nowe if the kynge seise hee in the remainder shall haue an Ouster le main vna cum exitibus as it appearethe in 14. H. 4. 18 E. 3. 24. Edwarde the thirde Like law it is where .ij. hold iointly of the king the one dyethe and this matter founde by office and yet that notwithstandynge the kynge seises hee that suruiues shall haue an Ouster le mayn vna cum exitibus as it appearethe in the boke of Assises 44. 44. li. ass in Fits ti Liuere P. 11. T. 45. E. 3. f. 18. E. 3. and in the newe Natura breuium fo 2â—â— f. 257. For in all these cases where the Ouster le maine is vna cum exitibus the king ought not to haue seiseised and so sayethe Thorp 45. E. 3. The words of the statute be further Post mortem eorum qui de eo tenent VpoÌ„ this it is to bee sene at what time after the kynges tenants deathe this lyuerie shall be sued If the possession of the free holde immediatlye after the deathe of the kynges tenaunte discende vnto his heire it is to bee sued fourthwithe and yf but onelye a reuercion discende then it is not to be sued tyl after the death of the particular tenaunt as it may appeare in the newe Natura breuium f. 291. where the heire sued not lyuerie tyll after the deathe of the tenaunt by the curtesye tenaunt in dower and tenaunt for terme of lyfe But learne what the lawe shoulde haue beene if the kynges tenant hadde dyed seised of a reuersion whereupon rent had beene reserued hys heire of full age whether hee should haue theÌ„ sued liuerie fourthwith or els to haue taried tyll the deathe of the particuler tenaunt for in the seuenthe yeare of kyng Henrye the sixte Iune thinks he should tary or els it might followe the kynge should haue double lyuerie that is to say one for the rent an other for the lande M. 7. H. 6. f. 3 but Paston is in contrarye opinion and resembles it to a reuersion dependyng vpon an estate tayle with a rent reserued howebeit at this daye there is election geuen vnto the heire that is to say eyther to sue his liuerie immediatly after the deathe of his auÌ„cester in the lyfe of these particuler tenaunts or els to tarye vntill they die and if he sue his lyuerie in theire lyfe he paiethe for primer seisin but the moytie of one yeares profyte yf after theire deathe then he payethe the hole yeares profit howebeit if there be a rent reserued he pursueth his liuery in the lyfe of the particular tenaunt it seemes besides the halfe yeres profit of the value of the land he shal also paye the hole yeares profit of the rent reserued therfore learn what common experience teacheth vs in that case The woordes of the statut be Qui de eo tenent in capite By these words he must holde of the kinge in chiefe for yf he holde not of hym in chiefe the kynge can haue noe primer seisin And yet you shal see in the newe Natura breuium folio 296. that of lands in the citie of LoÌ„don holden of the king in burgage the king had primer seisin the heire thereof sued his liuery but that president semes to bee against the lawe for Markham saiethe in 7. E. 4. that in Neuels case it was founde that ones father died seised of certain lande that hee helde of the kyng in Burgage T. 7. E. 4. f. 9 and thereupon thexchetor did seise whiche seiser by thaduise of all the Iustices was discharged by a Supersedeas awarded to thexchetor for the wordes of bothe the foresayde statutes be verye plaine therein that is to saye that hee must holde of the kynge in capite but whether he holde of the kyng by knights seruice or by Socage in capite it makethe noe matter so that he holde in capite for the kinge in bothe cases shall haue primer seisin althoughe not wyth so large a prerogatiue in th one case as in the other For in the firste case where the tenure is knyghtes seruyce in capite the kynge shall haue the same prerogatiue when the heire is of full age at the deathe of his auÌ„cester as he should haue hadde yf hee hadde beene wythin age that is to saye primer seisin aswell in the landes holden of others as of hym selfe bee it that the landes holden of other bee holden by knyghtes seruice or in Socage But otherwyse yt ys where the tenure is but a tenure by Socage in capite for there the kynge shall haue noe primer seisin in landes holden of other namelye if theye be holden of other by knyghtes seruice as it appearethe plainlye by the statute of Magna charta capit 27. and in the newe Natura breuium fo 2â—â— nor yet anye primier seisin of landes holden of hymselfe in Socage in capite â–ª If the heyre at
ne voilomus nous my de ceux qui deueignount sotes per ascun maladye Vpon these words of Britton I note .iij. things one is that the king shal not haue the custodie during theire liefes but duringe theire Ideocy the second notwithstanding the lande is in the kings handes yet the other lorde shall haue theire seignories which is by way of peticion as I take it and the thirde is that the other lorde shall not haue the wardshippe of the heire nor of his landes but onely the kynge whiche thiâ—de thingê by this statute of prerogatiue are not so plainelye set fourthe and also by this statute it appeares that the kynge shall haue the custodye of suche Ideottes durynge they re lyues for the woordes bee Et post mortem eorum reddat eam rectis heredibus and not beefore The manner howe the kynge shall come to his prerogatiue appeares by a booke case .16 Edwarde the thyrde 16. E. 3. in Fits ti Liuery P. 30. where Sharde sayes that when the kyng is enfourmed that there is suche an Ideotte hys highnes shall sende for hym and cause hym to bee broughte beefore hys chauncelloure or some other whom hee shall appoynte and yf by examinacion hee bee founde an Ideot yet his hyghenesse oughte not to sease his landes vntill suche tyme as hee bee founde an Ideot by office And in the newe Natura breuium folio 232. it appeares that the kinge appointes all this matter to theschetour or sherife bothe to examine and enquire in whiche sayde Natura breuium folio 229. it appears that this office when it is founde shal haue relacion a natiuitate to auoide al meane actes donne by the Ideot that is to saye his feffements or release but learne and enquire whether suche feffees shall bee put out by thoffice without anye Scire facias to bee awarded againste them M. 18. E 3. in Fits ti 30. Scire facias P. 10. et 106. In 18 .32 E. 3. a Scire facias was awarded in that case and learne allso whether the office shall haue relacion for the profites from the tyme of hys natiuitie or onelye from the findinge of thoffice Then to the exposicion the woordes bee Rex habebit custodiam terrarum fatuorum naturalium By these woordes it apperethe that he must bee a fole natural that is to saye a foole a natiuitate â–ª for yf he were once wyse and beecame a fole by chaÌ„ce or misfortun M. 18. E. 3. Fits ti Scire facias P. 10. the king shal not haue the custody of him and so it is agreed in .18 E. 3. And also in the newe Natura breuium fol. 2â—3 and the manner of the tryall of hym to bee a foole naturall appeares in the sayde Natura breuium folio 233. that is is to saye yf hee cannot tell to tweÌ„tye pence or tel his age or who was his father and mother or such like thinges whereby yt may appeare hee hathe no kynd of vnderstandinge in that that is eyther for hys profyte or dammage But if hee bee learned or apte to learne thenne is hee no Ideot as maister Fitsherbert there thinks M. 31. E. 3. ti sauer de defaulte P. 37. and Grene sayethe in .31 Edwarde the thirde That yf hee bee able to begette eyther sonne or doughter he is no foole naturall The woordes of the statute bee further Capiendo omnes exitus eorundem sine vasto et destruccione et inueniet eis necessaria sua By these woordes it appeareth that the kynge maye take the profetes to hys owne vse fyndynge them theire necessaries And therefore in the booke beefore of Tricesimo primo of Edwarde the thyrde the kynge dyd not lette the lande vnto one of the cosyns of the Ideot yeeldynge a rente butte these woordes findynge them necessaryes is not onelye mente to the Ideottes themselues but allso to all them that hange vpon them as they re wyfe chyldren and familye And allso by these woordes sine vasto destruccione M. 3. E. 2. in Fits ti Gard. P. 5. it appearethe the kynge is bounde to reparacions of theire landes and tenementes The woordes bee allso De cuiuscunque feodo terre ille fuerint By those woordes it shoulde seeme the kynge shoulde be preferred in thys tytle of Ideocye beefore anye other lords whyche myghte clayme the Ideot as hys warde howebeit learne what other menne thynke therein Et post mortem eorum reddat eam rectis heredibus Bye these woordes it shoulde appeare that the kynge shoulde saue the custodye durynge the lyfe of the Ideof and that than an Ouster le mayne in nature of a lyuerye shall bee suyd of the same oute of the kynges handes butte whether yt shall bee made wythe the yssues and profytes from the tyme of the Ideottes deathe or onelye butte from the time of the tender of the Oustere le mayne learne butte yf the landes that the kynge hadde so in custodye bee holden of hym in capite thenne notwythestandyng these wordes of the statute yet the kynge shall haue wardeshyppe prymer seisin and all other prerogatiues as yf hys tenaunte in chiefe hadde dyed seased thereof beynge noe Ideot as it maye appeere in the newe Natura breuium fol. 2â—6 And there it appeares folio 2â—2 allso that allthoughe the Ideot helde noe landes of the kyng yet a Diem clausit extremum shall bee awarded after hys deathe to enquire what landes hee dyed seased of of whom they are holden c. And it is to be noted that yf one be fouÌ„d Ideot by office before the king seaseth the lands the Ideot dies yet the kynge shall sease beecause of these woordes in the statute â— post mortem eorum reddat eam rectis heredibus whych his grace cannot do but vpon a seisure and thys appeares 18. M. 18. E. 3. in Fits ti Scire facias P. 10. Edwarde the thirde And note allso that if ther descende to an Ideot no possession in landes butte onelye a ryghte bee it righte of entre or title of entre or ryghte of accion the kynge shall not enter and haue the custodie of the same 1. H. 7. 15. as appeares in 1. Henrye the seuenth and yet if hys tenaunt of landes holden of hym by knyghtes seruice bee disseised and dyethe his heire within age the kynge shall enter and holde the same in warde and therfore learn what is the reason that shoulde make a difference in these cases The woordes be further Ita quod nullatenus per eosdem fatuos alienentur nec quod eorum heredes exheredentur Bye these woordes it appeareth the landes cannot bee aliened by the Ideot nor the heires disheryted and therefore if the Ideot make a feffement or release of his landes and that founde by office the kynge shall auoyde it as I haue beefore noted and so likewyse his heires after his deathe by force of these woordes of the statute And yet it appeares .31 E. 3. that a recouerie by
castri et manerii de Scrogoill et obiit in eodem castro antequaÌ„ intrasset per regem et fecisset ei homagium et vnde concordatum fuit quód vxor non haberet dotem eo quôd vir suus non intrauit per Regem immo per intrusionem sed hoc non intelligatur de Socagio et paruis tenuris This Statute is but an affirmacion of the common lawe as it maye appeare by the case coÌ„prised in the same which was ruled before the makynge of thys statute and iudged accordinge to theffecte hereof And this statute seemeth too putte a paine vppon the heires that will entrude before they haue sued theire lyuere and taketh awaye from them the free holde that the lawe had else vested in them And yet it is not taken so generallye as the woordes bee but specially and onelye of intrusions after office founde and not before And therefore if the heire enter after the deathe of hys auncestour and before office founde and the kynge pardoneth him all entries with the profites this is good and amounteth to a speciall liuere so that the heir needeth to sue no moe liueries and yet if thentrusion were after office and then the kinge woulde pardone him it were void bycause that at the tyme of the pardone he had no freeholde whereuppon the pardon might enure Like lawe is if the heire before office enter and make a feffement and the kynge pardone the feoffee it is good A. 3. H. 7. 2. and yet suche a feffement after office with a pardone were voide for the reason I haue made before Like lawe is if thentrie beefore office and the pardone after office this is voide beecause that by offyce the kinge taketh the possession from the heire or feffee and then is there no possession whereuppon the pardon maye enure And so voide For the office when it is founde hathe relacion from the death of the kynges tenaunt if it bee so that the kinge doe not release his right beefore thâ—ffice founde P. 16. E 4. 1. and that appeareth 16. E. 4. where it is also sayde that the pardone must bee as well of the profites as of the entrie or elles after office founde the kynge shal bee aunswered of the profites and .13 Henrye .4 M. 13 H. 4. there is a difference put beetwene the pardone that is made to the heyre and the pardone that is made to the feoffee For in the case of the feoffee the pardone must bee speciall rehersinge all the matters Then let vs see further for the endowement if after the death of the kynges tenaunt the heire dothe not enter but dye before office founde hys wife shall bee endowed because of a possession in lawe that was in hym Like lawe is it if hee dye after office founde and beefore anye entrie Like lawe is it if hee entre before office and dye But if the kynge bee once seised by offyce and the heire dye before licence and the nexte heire will enter beefore a Deuenerunt sued and dyeth hys wife shall not bee endowed for in that case it is an intrusion after office For when the kynge is ones seised by office this seisine remains till liuerie or ouster le maine be sued 1. H. 7. 3. 4. H. 7. 1. et 2 M. 38. E. 3. 35. And these cases are 1. et 4. H. 7. The woordes of the Statute bee further sed hoc non intelligatur de Socagio et paruis tenuris These woordes are to bee intended of common Socage for if hee holde of the kynge in Socage in chiefe and wyll intrude after office nullum accrescit ei liberum tenementum no more than if the landes were holden by knyghtes seruice in chiefe 24. E. 3. f. 34 H. 21. E. 3. 2â— And it is a generall grounde that in all cases â–ª where hee that sueth hys generall lyuerie or ouster le mayne missueth the same and entreth thereby thys entrye is an intrusion vppon the kynges possession and hys wyfe of that possession shall not bee endowed as appearethe 21. et 24. Edward 3. The fourtenth chapiter ITem Rex habebit escaetas de terris libere tenentium Archiepiscoporum et Episcoporum quando ipsi tenentes damnati sunt pro felonia facta tempore vacationis dum temporalia eorundem fuerunt in manu domini regis conferend ' cui voluerit imperpetuum saluo seruicio quod ad dictos prelatos inde pertinet et fieri consueuit Of this statute I fynde no bookecase Howbeit the letter of it is verie plaine and needs no maner of exposicion For it goeth not to anye other eschetes than suche as growe vppon offences And if the crime or offence were done whyle the lande was in the kinges handes notwithstandinge the partie were not attainted thereof vntill suche time as the landes bee out of the kinges handes yet the king shal haue the eschete by force of this statute And heare it appearethe howe the kinge shall not hold the landes forfaited still in his handes but must geue them ouer to hold of them that they were holden of before The fiftenthe chapiter QVando dominus Rex dat vel concedit alicui manerium vel terram cum pertinÌ„ nisi faciat in charta sua vel scripto expressam mentionem de feodis mill ' aduocationibus ecclesiarum et dotibus cuÌ„ accidunt ad predictum manerium vel terram pertinenÌ„ tunc his diebus rex reseruat sibi eadem feoda aduocationes cum dotibus licet inter alias personas non fuerint obseruata It is agreed in .43 E. 3. M 43 E. 3. 19 that by the order of the comon lawe before this statut if the king had ben seised of a maner to the which aduousoÌ„ had bene appeÌ„daÌ„t had geuen it to me notwithstanding that in the kinges grant there hadde bene no mencion made of the auowson nor of these woordes cuÌ„ ê‘tinÌ„ yet thauouson hadde passed from his highnes by the sayde grant for in those daies the king was but a comon parson a write of Enter sur disseisin A. 20. H. 3. ti assise in Fitz p. 431 M. 24. E. 3. f. 23 H. 22. E. 3. f 3 all other accions did lye against him as against any other comon ê‘son And therefore in 20. H. 3. A write of entrie was brought againste one supposing that he had no entrie but by disseisin which the king did to the demaundant when he was wtin age also Wilby 24. E. 3. reporteth that he hath sene a write which was Precipe H. regi Angliae in place wherof is now geuen Peticion by hys Prerogatiue And so it is said .22 E. 3. that in tyme of king H. 3. and before the king should be empleded as any other comeÌ„ ê‘son But king E. his sonne ordeined that none should sue him but be driuen to their peticion Howbeit sauing reformacion of these bookes I think the law was neuer so that a man should haue
possession as any other By a statute made the .33 yere of the late kinge of famous memorie H. 8. the 20. chapter it is among other things prouided that if any person or persons shal be attainted of hye treson by the course of the comon lawes or statutes of this realme that in euery such case euery suche attainder by the cōmon law shal be of as good strength value force and effect as if it had ben done by authorite of parliament that the kinges maiestye his heires and successors shall haue as much benefit auātage by such attainder as well of vses rights entres cōdicions as possessions reuercions remainders and all other things as if it had ben done and declared by autoritie of parliamēt and shal be demed and a iudged in actuall and reall possessiō of the lands tenemēts hereditamēts vses goods cattals all other things of the offēdors so attaīted which his highnes ought lawfulli to haue and which they so being attainted ought or might lawfulli lose and forfait if the attainder had ben done by authorite of parliamēt without any office or inquisicion to be founde of the same any law statut or vse of the realme to the cōtrarye therof mani wise notwtstādīg This statut maks it clere without questiō that in cases of hye treson the lāds of him that is attainted are in the kinge biand by without any office But for other attainder it remaines as it was at the comō Law and therfore lerne if one which holdeth of the king be attainted of petit treson or felonie whether in this case by thatainder his lands be in the king without office and me semeth by attaīder and death together they should be in the kinge in law howbeit not in dede vntill suche time his highnes seise themby his officer or that an office bee therof foūd for by thattainder the lands are forfaited to the kinge by mater of record and then when the partie dyeth either the frehold must be in suspence or els aiudged in the king in lawe for he that was seised hath corrupted his blood and is dead without heir and therfore his highnes is beecome owner thereof in lawe and a possession in lawe vested in him of the same landes which his highnes at his will and pleasure may make a possessiō in dede as sōe as he wil take vpon him knowledge of the sayd landes and sease them by his officer And therfore the booke is agred 20. E. 4. 20. E. 4. so 10 that if he that is attaynted be seised of auowsōs appendaūt as sōe as the church becometh voide the king may presēt wtout any office which proues that the kinge by thattainder was patron before any office found or els how could his highnes present and I see no differēce betwene lāds auousōs in this case for auouson is not so transitorie toward the kinge but that he mai take the presentment therof at all times whē he will quia nullum tēpus ei occurrit Howbeit lerne what the law will in this case for many mē are of the contrarie opinion And see the boke .4 E. 4. cōcernīg this mater And so note what is sayd of a possession in law 4. E. 4. 21. for as I take it there may be a possession in law in the kinge as well as a possessiō in dede which possession in law is euer without office or any other mater of record as whē the possessiō is cast vpō his highnes by a discēt reuerter remaīder or escheit or in title of his seignorie or prerogatiue as for wardship primer seisī or for the custodie of the tēporalties of a bishop during the time that the see is vacant in all these cases without any office or other mater of record here is a possession in law vested in the kings highnes that is to say for that that doth descēd reuert remain or eschet the freholde is cast vpon him in lawe as it should be vpon a comon person in the like case or els the frehold should be in suspence which may not be of the rest the possession in law of a cattell is in his highnes in right of his seignorie which his highnes at his will and pleasure may make a possession in dede by entre or seasure but not to make it a possession in dede by his graunt because there is a statute made in the 18. yeare of H. 6. ca. 6. to the let therof which prouideth that all letters patents made of lāds tenements before office foūd and returned or within one month after but onely too him that tendethe his trauerse shal bee voyde This statute extdes onely to landes and tenementes therfore of the bodie of his warde his highnes may make a graunt notwithstandinge this statute as me semeth for that is neither lād ne tenemēt also notwithstādinge that this statute doth restraine the graunting of the lāds tenemēts yet the seisin therof remaines and is in the kinge as it was by order of the comon lawe which is as I sayd before in his highnes in lawe although not in dede vntil such time as he hath made a seasyn or an entree by his eschetour or a graunt therof which wayethe both to a seasure and a graunt in such cases where the graunte maye bee goode and not restrained by statute or vntill such time an office therof be found For an office that entitleth the kinge to the possession is sufficient by it selfe without any seiser or entre of the eschetour to make a possession in deede in the kinge if it be so that the possession were vacant when the office was founde But if the possession were not vacāt but an other thā he in whose right the kinge seiseth was tenant therof at the time of the findinge of the office then must the kinge entre or sese by his officer before the possession in deede shal bee iudged in him yea and if his highnes seise not by the space of a yeare and a daye after the findinge of the office then maye be not seise without a Scire facias to bee pursued agaīst him that is tenāt therof 9. H. 7. f. 2. 7 49. E. 3. f. 22. 20. E. 4. f. 10. Estopel 255. Trauers 50. 32. Ass P. 32. 29. Ass P. 30. 21. H. 7 f. 7. P. 21. E. 4 f. 1 Gard. P. 105 And of those maters you may see bokes 9 H. 7. 49. E. 3. 20. et 21. E. 4. 4. E. 2. 10. H. 4. 21. H. 7. 29. et 32. li. ass But heruppon is there a distinction to be made whether that that the king is ētitled vnto by office be a thinge manuell and wherof profit maye bee taken forthwith after the findinge of the office or not For if it bee such a thinge as is not manuel and wherof there is no profite too bee taken forthwith vntill such time it falleth in that case althoughe the king be in possession of the right of
and entitle hym by the seconde office and trauerse the firste as hee nedes muste for thenterpleder muste nedes reste vppon the firste office and not vpon the second then as thissue is founde P. 36. E. 3. in Fits titulo Trauers P. 44. so shall hee or theye for whome it is founde haue lyuerye And this appearethe in the newe Natura breuium fo 294. 36. E. 3. 16. E. 4. folio 4. Howebeit a great doubt ryseth in our bookes vppon thys mater whether thenterpleder shal be fourthwithe after the seconde office founde or not vntill suche time as the heyre that is founde wythin age commethe to his age and as it appeareth by the sayde boke of 36. Ed. 3. in this case where one was first found of full age after the other within age thenterpleader was fourthwithe for it weare noe reason that hee that was ryghte heire and of full age shoulde bee delayed by the nonage of the other that is noe heire And a straunger shal bee receaued to trauerse the office not withstandinge the heire that is founde by the office that is trauersed bee withein age And then it is noe reason that the heire in this case be in worse condicion then a strauÌ„ger But take it by the first office one is found heire and wythin age and by the seconde office an other is found heire and of full age whether in this case they shal enterplede or not or whether thenterpleader shal be before thage of the other And surely it shoulde seeme by the groundes and rules declared before vpon the writ of Diem clausit extremum that the seconde office in this last case is voide because there ys noe better title founde for the king than was by the first then if it be voide there can be no enterpleder Howebeâ—yt in the newe Natura breuium fo 2â—0 it appeareth to the contrary hereof that they shal enterplede in this case and that the seconde office is not voyde for there the heyres founde by bothe offices weare of full age And yet that notwythstandynge theye enterpleaded And so is .5 T. 5. E. 4. f. â— Edwarde the fowerthe where it is sayde that if by one office the heire is founde within age and by an other office an other is founde heire and of ful age that in this case theye shall enterpleade but not before the childe come to his full age And Townesende iustice sayeth in .1 H. 7. that if by diuerse offices ij Liuery P. 17 be seuerally founde heires and within age nowe the kynge shall kepe the landes tyll theire full age and thenne theye shall enterpleade and yf theye dye before enterpleder their heires within age seueral Deuenerunt shal be awarded that is to say for euerie heire one by the same beyng fouÌ„d seuerally heyres to the auncester theye shall enterpleade at they re full age like as the auncester shoulde haue doone if they hadde lyued and yf the dyinge of anye of them weare wytheout issue and the other founde to bee his heire then is thenterpleder determined Thus may ye see how bokes vary in this matter and yet by the waye note this difference that is to saye where by the firste office the heire is founde within age and were of full age for by these bokes it shoulde seeme that if hee bee firste founde withein age notwithstandyng that by an other office an other is found heire and of full age yet hee shall not enterplede with the other tyll he bee of age contrarie it is yf the fyrst be found of full age and the nexte wythin age and the reason may be for that the kynge is first seysed of hym that is wythyn age with whom the lawe weyes more in presumption to bee heire than the other and thys tytle ys the beste tytle that the kynge hathe for it entytlethe hys highenesse to a greater benefite than dothe the seconde office and thys second was found vpon a coÌ„mission graunted more for the kings benefit thaÌ„ for the heries that should be fouÌ„d by the same and therefore it weare reason that hee that is first founde heire haue more fauoure if anye fauoure bee to bee shewed thanne hee that was last founde heire or at the least for the kynges benefit that the matter be respited til the childe bee of age Also the sayde Iustice Townesend sayde further that if one bee founde heire in one countie an other found heire in an other countie yet they shall enterplede whyche can not bee as me seemethe for once wee haue a generall grounde that a man can not sue a generall lyuerie by parcelles but firste he muste cause an office to be founde in euerye shere where he haue landes and when all the offices be returned then to haue his lyuerie and not beefore then this case where one is founde heire in one sheere and an other in an other sheere heare none of them bothe canne haue lyuerye beecause hee hathe noe office founde butte in one sheere and not in the other and thenne if there canne be noe liuerie there can be noe enterpleder wherfore it should seme in that case they caÌ„ not eÌ„terplede 2. â— 7. f. 2. Trauers 49. And here with agreeth the boke in .2 .8 Henry the seuenth So no enterpleder can bee but where there is an office thorough the whole found for euerye heire in euerye countie wheare the landes lye but it is not allwaye requisite that theare bee seuerall offices founde for sometimes vppon one office founde by it self alone there maye bee an enterpleder and that is wheare ij bee founde heires by one enqueste as two twynnes that is to say two children borne at a burden And it is to be noted that euerye enterpleder is to trye the priuitie of bloude onely that is to say which of these the enterplede is next heyre to hym that last dyed seysed and not to trye theire rightes in the landes And therfore if by one office one bee fouÌ„d heire of a general taile and by an other office an other is founde heire to the same lande as of estate in specyall taile theye shall not enterpleade as it appearethe in 21. H. 7. fo 3â— Allso they must be both found heires to him that last dyed and by whose death the king dyd seise for if one bee founde heire to hym that dyed seised and another is founde heire to the auÌ„cester that dyed seised nexte before the last dyinge seised in this case they shall not enterplede as it appearethe in H. 2. H. 6. f. 5. Also theye shall not enterplede but wher both heirs claime by one selfe title of landes holden of the kinge for yf the kings tenant dye seised of lands holden of other as well as of the kynge and one is founde heire to al the landes and by an other office an other is founde heire onely to the landes holden of other in this case theye shall not enterpleade as it appeareth in .12 E. 4.
firste chapter Also Britton an other old wryter which wrote hys booke in king Edwarde the first name sayeth des heirs nequedent si ils y eyent ascuns qui auncestre morust seisie de ascun terre tenu de nous en chief des aunciens demeanes de nostre corone volons auer les gardes de touts les terres dōt appent que deiuent descend a ceux heirs come lour heritage ouesque touts les blees en teles terres troues maintefoits de qui fees que les terres sont Britton here not only agreeth with the other but also geueth the king the corne growing vpon the groundes which the kinges tenant holdeth at the tyme of his death A. 21. H. 3. in Fitz. ti Prerogat ' P. 26. P. 25. Also in the great Abridgement of Fitzherbert you shal find in the time of king Henry the thirde written in this manner Nota quod lex angliae et consuetudo eiusdē est quod a quibuscunque aliquis feoffatus fuerit dum tamen a domino Rege aliquo tempore fcoffatus fuerit per tenementum qd ' tenetur per seruic̄ militare quod dn̄s rex habebit custod ' omniū terrar ' et tenemētorū tā de feoffamēto aliorū quā de feoffamento proprio Which text if a man will any thing wrest he may make the kinges prerogatiue more lyberall then is made or declared by this statute or any other the writters before remembred for it extendes to any landes holden of the king by knightes seruice whether they be holden of the king in capite or not but forasmuche as the saide other writers haue written so plainlye in this matter we will stand to them and extende the prerogatiue no further howbeit as I saide all those writters being so longe before the making of this statute doe plainly argue proue that this statute dothe but confirme and declare that that was the commen law before M 15. E 4.12 vnles we woulde doubt of the time of the making thereof as Littleton doth in 15. E. 4. but without doubt it was made in king Edward the secondes time and that plainlye appeareth by the woordes contayned in the third chapter of this prerogatiue which be these Et illa voluntas tempore Regis H. patris Regis E. estimari consueuit c. Which woordes were not written in kinge Edward the first daies for then the woords had bene patris nostri so that as I thinke it is not to bee doubted but that it was written in the time aboue limitted and expressed Then go wee to thexposicion of this first chapiter of prerogatiue The woords be dominus rex habebit custodiam omnium terrarum eorum qui de ipso tenent in capite per seruicium militare These woordes go generally to all the kings tenauntes that is to saye aswell to his tenantes for terme of lyfe as to his tenauntes of estate of enheritaunce if it so be that he that is in the reuercion haue the saide reuercion by discent and be heir vnto the said tenant for terme of life not forcing whether he haue the reuercion by discent from the said tenaunt for terme of life or else from any other ancestour as take the case to be this a man holdeth no landes of the kinge but onely as tenaunt by the curtesie and those landes are holden in chiefe by knightes seruice the saide tenaunt by the curtesie is seased in his demesne as of fee of landes holden of other lordes and dieth the landes holden of other discend vnto him in the reuertion whiche is indede nexte heire vnto the said tenant by the curtesie in this case the king shall not onely haue the wardship of the landes that were holden by the curtesie if the saide heire be wythin age but also the landes holden of other by vertue of thys prerogatiue And if the saide heire were of full age at the tyme of the deathe of the saide tenaunt by the curtesie the king shall haue primer season both of the one lande and of the other as it appeareth in the newe Natura breuiū fo 298. Like lawe is it if a woman be indowed of lands holden in capite and is seased in fee simple of landes holden of other and dieth seased and they discende vnto the heire whiche is in the reuercion in this case the kinge shal haue bothe these landes by vertue of this prerogatiue like as hee shall haue in the other case before 26. li. ass p. 57 and that maye you see in 26. li. ass for in bothe these cases they bee the kinges tenauntes and hold of him by knightes seruice in capite for tenaunt en dower in the kinges cas holdeth not of the heire but onelye of the kinge as it shal appeare more fully hereafter But if he in the reuercion bee not heire of the landes holden of other in the cases aboue remēbred otherwise it is But what if he in the reuercion haue the same reuercion by purchace and not by discent whether shall the king then haue his prerogatiue or not and as to that it shoulde seeme by the newe Natura breuium fo 259. that the kinge shall haue his prerogatiue in that case also for there the remainder was to the heire and to his wife and to the heires of theire two bodyes lawfully begotten and the husbande in the remainder dyd sue liuere howbeit against the law as me semeth ideo quere but if the case in the saide newe Natura breuium had been that landes holden by knightes seruice in capite had beene geuen to one for terme of his lyfe the remainder ouer in fee which parson in the remainder hath issue and dyeth and tenaunt for terme of lyfe holdeth landes of other Lordes and dyeth whiche discende to the issue that is in the remainder there it might be saide that the king shoulde haue prerogatiue in the whole like as he had in the cases before remembred of tenaunt by the curtesie and tenant in dower for like reason will serue in the one case that serueth in the other The woordes of the Statut be further de quibus ips◠tenētes fuerunt seisiti in dominico suo vt de feodo die quo obierunt de quocunque tenuerint These woordes rather apperteigne vntoo the landes holden of other then too the Landes holden of the Kinge in Capite as it shoulde appeare by the cases beefore remembred and then by these woordes the kinges tenaunt in his life tyme must himselfe bee seased either in possession or reuercion of those landes that hee holdeth of a common person that shall dyscende vnto his heire For if hee were neuer seased thereof but they discende vnto his heire from some other auncestor the king shall not haue his prerogatiue in them as appeareth in 15. 15. E. 4. f. 10. E. 4. but whether the kinges tenaunt were seased of them in his owne right or in another bodyes right it maketh no difference
againste al men but it extendes to suche landes as are holden of these persones exempted by this statut Put case then that anie of these persones pourchace a seignorie since the tyme of the makynge of this statute shall the kynge haue hys prerogatiue in the landes holden of that seignorie or not And it is clere he shal notwithstandynge the aforesayde woordes of exception for theye doe not extende but to suche fees as we are theyrs at the time of the makynge of this statut Then further for asmuche as there bee diuers statutes concernynge wardeshyppe made aswell beefore as since the time of kynge Edwarde the seconde let vs see whether this prerogatiue wyl extende to those statutes or not and it seemethe it dothe for asmuche as this prerogatiue hathe beene euer from the beginninge as I haue sayde before And therefore if the kynges tenaunte beeinge seased of landes holden of a common parson makethe a feffement therof by collusion contrarie is the statute of Marlebridge to defraude the lord of the wardshippe and diethe the king hauing his heire in warde this matter founde by office shall sease vpon a Scire facias if the collusion be auerrable or wtout a Scire facias if the collusioÌ„ be apparaunt hold the same in warde by force of this prerogatiue that appeareth in 9. H. 4. So likewise wher the statute made in 4. H. 7. T. 9. H. 4. f. 5 prouidethe that the heire cesty que vse shall bee in warde Put case that the kynges tenaunte in capite before the statute in Anno. 27. H. 8. had made a ferfement of lands which he holdethe of a common perâ—one to the vse of hymselfe his heires and died before that statute in this case the kinge shoulde haue hadde his prerogatiue in the Landes so beynge put in feoffament to an vse euen as if his tenaunt had died seased thereof T. 12. H. 7. fo 17. as it appearethe 12. H 7. Than last of all let vs learne howe the lordes whose fees the kynge hathe in warde by his prerogatiue shal be demeaned and ordered for the rentes to be dewe for their seignories duringe the wardshippe whether they shall leese them as they do the landes 29. lib. ass in fits ti Petic p. 5. P. 24. E. 3 f. â—â— and the new natura breuium fo 179. And it appeareth in the booke of assises in 29. E. 3. that they had them by peticion at the Kynges hands therwith agreeth thoppinion of Hill ' in the .24 yere of kyng E. 3. Learne the reason of these bokes for it should seme to me the lawe to be otherwise because that al mesne seignories are suspended duringe the time the kyng hathe the tenauncye in warde if it bee not per case for the surplusage of a rent seruice whiche the mesne maye sue for to the kynge by waye of peticion and to saye that the heire shal be charged at his full age withe the sayde rentes it weare noe reason for then bothe his lande shoulde bee in warde and yet he charged to pay rent for the same wherefore it semeth that these bokes are against the law And with me agreeth Bracton in his first boke in the chapiter de custodia where he saieth Et cum tali ratione sint aliorum feoda in manu do mini regis pred' ratione alij capitales domini feod ' illorum ni hil poterint exigere de terris et tenÌ„tis illis nec in seruic ' nomi nat ' nec in auxiliis ad filiam maritandam vel filium primoge nit ' militem facieÌ„duÌ„ vel in sectis quaÌ„diu terre fuerunt in manu domini regis sed precipiet ' vic' qd ' hmÌ„odi distringere non permittat Howebeit Bracton in his said booke in the chapiter De releuijs saieth that the heire at his full age shall pay his reliefe to euerie of his lordes notwithstanding he hathe ben in warde quod nota for in al other cases he neuer paiethe reliefe that is to saye where he hathe bene in ward and hee makethe no other reason for it butte this s. quod hoc est speciale in rege propter suum priuilegium and so is the booke in the .24 M. 39. E. 3. in Fits ti Relief P. 1. Britton f. 163. yeare of kynge Edwarde the thyrde and the .39 yeare of the same kynge howebeit Brittons oppinion is that the heire shall paye noe reliefe to the other lordes after hee hathe beene in the kynges warde and commethe to his full age and I cannot fynde that the heire in anye suche case shoulde or doothe paye anye reliefe to the kynge that is to saye where hee hathe beene in warde therefore learn what experience teacheth vs in these cases The seconde chapiter ITem Rex habebit maritagium hered ' infra etateÌ„ in custodia sua existenÌ„ siue terre hered ' eorundem sint ab antiquo de corona siue de eschaetis quae sunt in manu domini Regis siue habuerit maritagium ratione custod ' terrarum dnÌ„orum eorundem hered ' nullo habito respectu ad prior ' feoffamenti licet de alijs tenuerunt Bracton li. 1. ti de herede sockman in cuius custodia esse debe at BrittoÌ„ f. 163 M. 24. E. 3. f. 24. H. 12. H. 4. in fits ti Gard. P. 81. All that is contayned in this Chapiter was the kynges prerogatiue by the order of the common lawe as it maye appeare in the bokes of Bracton and Britton in the places before noted and in a boke in the 24. yeare of kyng Edward the thyrde where it is sayde that no lorde can be more auncienter than the kynge for all was in hym and came from hym at the begynninge And therefore his highnesse muste haue prerogatiue in the bodye of whosoeuer the infaunte holdeth besides bee it that the landes are holden of the kynges highnes as of the auncientnes of his Corone or of hys newe escheates or come vnto hym as warde by reason of wardshippe or that his highnesse doe pourchace the seignorie of hym that is lorde by posterioritie or pourchaseth a manor holden of one of his honors whiche are of his newe eschetes of whiche maner thauncester of thinfaunt helde by posterioritie in all these cases the kynge shall bee preferred to the wardeshippe of the bodye and mariage beefore anye other lorde of whom the auncester also helde them daye of his death by priority of feffement that is to saye more auncient feoffement howe be it in these cases hys highenesse shall not haue wardeshippe in the landes holden of thother lordes beecause his tenaunte helde not of hym in châ—efe but onelye shall haue preferrement in the body and mariage beefore all other Then since the common lawe and statute dothe geue the kinge this prerogatiue let vs see whether his highnesse maye by grauntinge away his seignorie to an other graunt also with the same his prerogatiue to the grauntee that is to
the deathe of his auncester bee not of the age of 35. H. 6. f. 47. T. 45. E. 3. fo 1â— 14. yeares as appearethe 35 H. 6. 45. Edwarde the third and allso in the newe Natura breuium fol. 2â—6 fol. 2â—â— But in euerye of these cases theye to whom the bodye belongeth shall haue an Ouster le main of the landes vna cum exitibus that ys to saye the lordes of whom the land is so holdeÌ„ by knights seruice in th one case and the Prochein amy in the other case But wher the landes bee holden of the kynge in Socage in capite the heire of the age of 14. yeares at the deathe of his auncester there the kyng shal haue primier seisin and the heirÌ„ dryuen to sue lyuerie for there is no persone that can make anye title to the heire or his landes but onelye the kynge and therefore the king must haue his primier seisin the heire driueÌ„ to sue his liuerie by expresse woords of the foresaid statut of Marlebridge so it seemeth also in that case that his highnes shall haue primier seisin in landes holden of other so they be holden but in Socage for the reasoÌ„ aboue remembred Tamen quere The woordes of the statute bee farther de omnibus terris et tenementis de quibus ipsi seisiti fuerunt in dominico suo vt de feodo These wordes may bee conferred and coupled with the firste chapiter of this statute of prerogatiue whiche hath the verye selfe same wordes And therefore looke in what cases noted vppon the firste chapiter the king hath his prerogatiue by reason of wardship In al the same cases shall his highnes haue prerogatiue by reason of primer seisin if the heire weare of full age at the deathe of his auncester Wherfore to reherce theÌ„ here particularly it were but superfluous except it bee in the case onely of collusion geuen by the statute of Marlebridge where the heyre is within age beecause it speaketh nothinge of the heire that is of full age And therefore in that case it seemes the kyng cannot haue lyke benefyte of primier seisin as hee hathe of wardeshippe when the heire is wythein age Howebeeit there is a booke in that pointe lefte at large whiche is 17. E. 3. 7. E. 3. there the case was M. 17. E. 3. f. 63. M. 7. E. 3. in Fits ti Relief p. 11. The tenaunte enfeffed his sonne and heire dyeth before the feffee gaue notice thereof to the lorde Ideo quere The woords of the statut be farther Cuiuscunque etatis heredes ipsorum fuerint To these woordes also shall the firste chapiter of this estatute haue relacion for they plainly declare that if the heire were within age at the deathe of his auncester the kyng shal haue primer seisin and the heire driuen to sue his lyuerie notwithstandinge also the kynge haue had the wardshippe of hym For the wordes be generally spoken and maye be extended aswell where hee was within age at the deathe of his auncester as where hee was of full age And so hathe it beene euer vsed sauinge that where hee hath been in ward hee payethe but one halfe yeares profite for primer seisin and in the other case hee payethe the hole The woordes of the statute bee farther capiendo omnes exitus eorundem terrarum tenementorum donec facta fuerit inquisitio pro ut moris est et ceperit homagium hered ' By these woordes it maye appeare that the kynge after the deathe of hys tenaunte and beefore anye office founde mighte seise the landes and take the profites whiche thinge surelye is true as plainelye is proued by the writte of Diem clausit extremum whiche hath these woords Cape in manum nostram omnia terras tenementa c. donec aliud inde perceperimus per sacrum proborum hominum diligenter inquiras c. So the seiser goethe before the inquisition howebeit since the statut made at Lincolne Anno. 29. E. 1 called statutuÌ„ de Escaetoribus it is not vsed to seise tyll office bee founde and then the kyng to bee aunswered of all the profites since hys tenaunts decease whiche commethe all to one effecte And that statute dothe not restrayne the seiser but that thercheator maye seise at this daye withoute office By the aforesaid statute of Marlebridge cap. 16. it is expounded and playnelye set foorthe of what lands and fees the kynge shall haue primer seisin for these bee the woordes Et hoc intelligatur de terris feodis que ratione seruicij militaris socagij vel seriaÌ„ciae sine iure patronatus in manibus domini regis esse coÌ„sueuerunt By these woordes it maye appeare that he that is warde beecause of wardeshyppe shall sue lyuerye or where one holdethe of the kynges warde by knyghtes seruice or in Socage and dyethe hys heire of full age the king shall haue primer seisin of the landes that are so holden of hys warde and the sayde seconde heire dryuen to doe hys homage or fealtye as the case shall require to the kynge and allso to paye hys reliefe vnto hym and to sue lyuerye of the sayde landes as it appearethe hee dyd in the newe Natura breuium fol. 294. 295. For it is withein the compas of these woordes que ratione seruitij militaris So ys it yf the kynge haue a Byshoppes temporalties in his hands duryng the time that See is vacant and one that holdeth of that temporalties by knyghtes seruice or in Socage dyethe hys heire wythein age in this case after that the kynge hathe hadde the wardeshippe the heire at his full age shal paye primer seisin and sue hys liuerye And so shall he doe yf hee bee of full age at the tyme of the death of hys auncester for the woordes of the statute bee De feodis quae iure patronatus in manibus domini regis esse consueuer ' and therwithe agreethe the newe Natura breuium folio 286. Butte learne yf the kings tenant in chiefe dye hys heire of full age and one that holdethe of the heire beefore hee hathe sued his lyuerie dyethe his heire allso beeynge of full age whether in thys case the kynge shall haue primer seisin of the landes of the seconde heire or noe as hee shoulde haue hadde yf the heire of his tenaunte hadde beene wythein age and in the kynges warde at the time when this seconde heire dyd falle and it seemethe to mee hee shall for the reason made afore Thanne laste of all whether this prerogatiue extende to anye statute made since the tyme of kynge Ed. 2. and it seemes it dothe and that for the reason noted in the first chapiter as the feffees of Cestuy que vse before the statut made in the .27 yere of kyng H. 8. vsed to sue an Ouster le mayn sine exitibus whiche was in nature of a lyuere for the heire of cestuy que vse which had bene inward Item for
record The wordes of the statute be further Et si se maritauerint sine licentia regis tunc rex capiet in manuÌ„ suaÌ„ nomine districtionis oÌ„nes terras et tenÌ„ta quae de eo teneÌ„t in doteÌ„ c. These words be knit in a copulatife to the former wordes contained wtin this chapter that is to saie wher she hath demaÌ„ded dower and is sworne not to marie but yf she will neuer demauÌ„d dower of the lands holden in Capite she may marie wher she wil for the wordes of the statute be quod assignabit viduis dotem si vidue illi voluerint so thinkes Iustice Fitzherbert in his Natura breuium fo 17â— How be it by the boke in .40 40. Li. Ass in Fitz ti gard 40. r. libro Ass it apereth that the wife neuer demaunded dower and yet had alowance of it and did marie also wtout license and yet paied no fine therfore the case was The kings tenant in taile in chiefe made a feffement by licence and toke estate again to him to his wife and died the wife takes an other husband and dies after whose deth the auncient estate taile being found by office the license was holden void because the king was discâ—ued therin and the second baron driuen to aunswere for the mene profets of ii partes of the laÌ„d but not for the third part because she was endowable quod nota A womaÌ„ tenant in dower of no mans assignement some there thought she should forfet her dower because she was partie to the disceit Howebeit this case semeth not to be properlye wtin the coÌ„pas of this statute Also Fitzherbert in the said Natura breuiuÌ„ thinketh that wher the king hath vsed to graunt to other the mariage of his widowes that a composicion with the grantee made for the same whether it be made by the wife or the husbaÌ„d is as good as if it were made with the kinge yet can not the graÌ„tee in such case compell her to marie for the should be contrarie to the statute of Magna carta cap. 7. which wil the she shal not bee constrained to mary by distres but if she will she maie liue sole Howbeit at this daye by the statute of .32 H. 8. cap. 46. the composicion is geuen to the master of the kings wardes liueries with iii. of the couÌ„cel of the said court And likewise aucthoritie is geuen to theÌ„ wher the kinges widowes mary theÌ„ selues wtout license to tax a resonable fyne by their discrecioÌ„s acording to the statute of prerog regis which statute plainlie setteth furth what hath bene vsed to be doon in such cases that is to saie the value of her dower by one yere therw t agrees the new Natura breuiuÌ„ fo 174. And for the fine the king shall sease all the lands tenemeÌ„ts so holden in dower as it aperes by the letter of the statute How beit the Register geueth that the king may sese aswell the land of the husband as of the wife because the mariage is a wrong doon to the kinge but the statute is coÌ„trarie to that therfore Fitzherbert in the said Natura breuiuÌ„ fo 1â—â— thinkes it to be no lawe For as wel might the lands that the woman hath of her inheritaÌ„ce be theÌ„ sesed wherfore no other land ought to be sesid then that she holdeth in dower as it aperes in the said Natura breuium fo 2â—â— And lerne whether the womaÌ„ obtaining dower at the haÌ„ds of the comittee or of the heire of lands holden in capite without making any othe may marie or not without liceÌ„se as me semeth she can not for as sone as she is eÌ„dowed of those laÌ„ds she is the kings tenant not tenaÌ„t to the heir which is in the reuercioÌ„ for if a trespas be done vpoÌ„ the land she shall haue a writ out of the chaÌ„cerie the one such hath entred vpon the kinges possessioÌ„ the auowrie to be made by the king resteth onlie vpoÌ„ her so is the opinioÌ„ of vvood in .1 H. 7. And yet the reuercioÌ„ is in the heier onlie for if she do wast 1. H. 7. fol 3. the heier shall ponish her for it not the kinge TheÌ„ further let vs se of what force this dower is wheÌ„ it is made in the chaÌ„cery how she shal be admesured in the saÌ„e if it be to grete for if it be to litle ther is no remedie for her but to staÌ„d to her owne harmes if she in the chaÌ„cerie once did accept it not forciÌ„g whether she were theÌ„ wtin age or of ful age as it maie apere in 18. E. 3. 29. 18 E. 3. The dowment in the chauncerie is of this force that whether it be by right or by wrong it can not be defeted by waie of plea without a sute made in the chauncerie for the defeting therof 17. E. 3. f. 71. M. 31. E. 3 in Fitz. ti Dovver P. 128. as it apereth iÌ„ the .17 .31 E. 3. And therfore in a verie strong case one doth trauerse the office which is in the chancerie by reason the land is holden of him by knightes seruice and not of the king and hath an ouster le main vna cuÌ„ exitibus yet if she were endowed before in the chancerie vpoÌ„ the office her dower remayneth vndefeted notwtstanding this trauerse and ouster le main vntil an other sute be made in the chauncerie for the defeting of the same Howbeit in this case if the dower be to much the lord that tended the trauers maie haue a writ of admesurement at the comon lawe and so cause it to be admesured wtout suing to the king for the saÌ„e For it is no losse to his highnes though she be admesured seing the land is not holden of of him as it apereth 7 R. 2. 7. R. 2. l Fitz ti Admesur P. 4. and there it is agreed that the heir shall haue a writ of admesurement of assinement of dovver made by his auncestor quere tamen But the abatour shal not haue a writ of admesurement nor garden en fait of assinement made bye garden endroit nor if the heir within age the garden of his heire shall not haue a writ of admesurement But take the case to be that a woman is endowed in the chancerie the rest of the land there remaininge still in the kinges handes yf it be surmised by the heir or any other for the king that the land assined to the wife is not extended to the verie value but that it is more in value then it is extended for now vpoÌ„ this surmise there shal be a newe extente made which beinge returned in to the chancery a Scire facias shal be awarded against the woman and if she be warned and come not or apere and saie nothing she shal be newlie endowed as it is said in Natura breuium fo 265. Then let vs see farther at what
time the woman may aske her dower in the chauncerie and when she is endowed and loses her dower vpon a recouerie had against her by an eigne title how she shal be recompenced If the husband haue land in diuerse counties wherbie after his death there be awarde seueral writz of Diem clausit extremum in to euerie of those counties she shal not be ēdowed vntil such tyme as all the said writs be returnd again in to the chancerie as it maie apere in .16 E. 3. H. 16. E. 3. in Fitz ti Liuere P. 29 And note that when she is endowed in the chancerie and afterwardes loses by a recouerie vpon an eigne title then she hath none other remedie but to cause the record of the same recouerie to be remoued in to the chauncerie and vpō the first record wherby yt apered she had dower and this other record of the recouerie she shal haue a Scire facias recitīg both the recordes against the tenāt of the ii partes to resese the said ii partes in to the kinges handes and to be newlie endowed of the same but not to recouer anye damages not withstanding damages were recouered against her this apereth 43. in the boke of assises 43. lib. ass in Fitz ti Dovver P. 79. Now to the last braunce of this statute which is that wemen that hold of the kinge in cheefe any inheritāce of what age so euer thei be shal likewise swere not to marie c. By the order of the comon lawe before the making of this statute al women that were wtin age in ward should whē they came of ful age be maried by their lords euerie one of them with their porcions and if they were of full age at the deth of their ancestours yet should they neuertheles be in the lords keping vntill their were maried by the aduise dispositiō of their lordes For as Glāuille in his .7 boke that he wrote in the time of kinge H. 2. sayethe Nulla mulier heres terrae sine dn̄orum disposicione vel assensu maritare potest de iure vel consuetudine regni and therefore saieth he yf a man haue issue one or moe doughters which be his heires aparente marieth ani of them wtout the assent of his lord that be therbye forfets his in heritance by the lawe and custome of the relme so that he shall neuer recouer yt again but onlie through his lordes mercie and that for this cause For when the husband of such a woman shal do his homage for the tenemēts so holden by knightes seruice it is requisite to haue the lords will assēt lest he be compelled to receue homage of his mortall enemie or some other vnable personage neuertheles yf the tenant sue to his lorde for license to marie his daughter the lord is bound to consēt or els to showe cause whie he should not and if he will not the woman may marie wher she listes without his assent And the said Glanuill further saieth that Tenant in dower can not in likewise marie without the assent of him that is her warrant that is to saie the heier And if she doe she shal lose her dower and yet there the husbād shal doe no homage but what then he shall do fealtie and for that cause also she shal haue license And further saieth if she holde of diuerse lords it is sufficiēt for her to haue the assēt of the cheefe lorde Also he saieth that wemen being in ward Si de corporibus suis foris fecerint which wordes as I vnderstand them bee if thei comit fornicacion and that be proued then they that offend shal be disherited so that her porcion then goes to the other sisters that haue not in the like offended And if they all offend then the lord shall haue the inheritance by waye of eschete Howbeit saieth he wher they be ons maried by the lordes assent and after becōe widowes thei shal be no more in ward but yet if thei marie again they must haue his assēt for the reson before made But then after thei haue bene once maried thei shall not forfet their inheritance for their incōtinencie so that it aperes plainly here by Glanuill that this hole statute of prerog should be but a confirmacion of the comō law And that the law was so as Glanuill toke yt it may partly apere by the said statute of Magna carta cap. 7. For the wordes are not onlie quod vidua securitatem faciet quod se non maritabit sine assensu nostro si de nobis tenuerit Bracton libro 1 de custodia sockmanorum but are also vel sine assensu domini sui si de alio tenuerit And Bracton agrees also with Glanuille Howbeit he saieth where a woman in the life of her auncestors maries without the assēt of the lord or wher the widow maries without the asseēt of her warrant that the inheritance or the dower shall not now be forfeted although in olde time yet was And farther saieth that the heier in socage being a woman shal be maried by the lord like as she should be if she weare heier of lands holden by knights seruise And farther saieth that the heier male shal be maried by the lord more thē once that is to saie as oftē as he shall come vnmaried in the time that he is vnder the age of xxi yeres But now by the statut of w. 2. cap. 22. the lords are abreged of their power in these mariages of the heires females for yf thei now be within the age of xiiii yeres at the death of their auncestor and the lord doth not marie them before thei come to xvi yeres then shall thei recouer their heritage without ani thinge geuen either for the ward or for the mariage And if their maliciously or thorough euel counsell refuse to marie where their lords doe apoint them without disparagement then shall their lord hold their land vntill thei come to the age of xxi yeres longer vntill they haue takē the value of the mariage Out of this statute if it be wel cōsidered a man may gather that the comon lawe was no lesse then is here recited And this statute was made about the .3 yere of king E. the 1. a litl◠before that Britton began to writ his boke for Britton f. 169. saies that the mariages should be offred to the heires females before they accōplishe the age of xiiii yeares and yf not the lorde shall lose his right in the saide mariages I suppose that the printer mistoke the nomber of the yeres and should haue printed sixteene wher it is but forteene and therfore it is good too see other copiees for this matter And Britton also sayeth that if he or she haue beene once marryed by the lorde or in the lyefe of they re father or once agreed with their lord for their mariage they shall neuer again be maried by him but maye marie
them selues where thei list so that they hold nothing of the king And fo 168. he saieth that the king shall haue the mariage of all the heires females where thei hold of the king of what age so euer they be as ofteÌ„ as thei shal be to marie so that they can not marrie wtout the kinges licence Thus is the last clause of this chapter expressely proued by Britton that the comon law did stil remain as it was for the mariage of the heires females in the kinges case and not altered or abreged by the said estatute of west primer therfore was the statut in the 39. yere of king H. 6. the last chapter made in this wise Item de auisameÌ„to assensu et aucthoritate pred ordinatuÌ„ est stabilituÌ„ qd mulieres existentes etatis 14. annoruÌ„ tempore mortis antecessoruÌ„ suoruÌ„ absque questione seu difficultate habeant liberacioneÌ„ terraruÌ„ et tenÌ„torum suorum sibi descensorum quia sic lex istius terrae vult quod tunc ipsi haberent How beit this statute prouides not wher thei be within the age of .14 yeres at the deth of their auncester ideo quere For as our late bokes go sins Brittons time the king hath lost his prerogatife vpon what occasion I know not but I woulde gladlie lerne 35. H. 6. 46. for Fortescue saies 35. H. 6. that when the heir female sues her liuerie she takes no oth that she shall not marie as the kinges widow doeth and therfore saieth he it should seme she should make no fyne yf she marie without liceÌ„se Howbeit Littelton saies that if the heir female be of the age of 15. yeres at the deth of her aÌ„cestor and marie her self without license that she shall make a fine for it amouÌ„teth to an alienacioÌ„ For after issue had the husband is become the kinges tenaÌ„t and he solie shall doe homage in his owne name And yet afterwardes in the 15. yere of E. 4. the same Littelton saies that the latter clause of the same statute is void for the doughter which is inward mariynge her self to an other wtout licence shal not make a fine to the king Thus by the argumeÌ„t of the said boke of .35 H. 6. it aperes that thei take the king to be bound by the said statut of w 1. and make him no better then a comon person wherat I haue no litle meruel sins he is not named in the said statute For in the said boke it is agreed by the court that if the kâ—ng after the age of 14. yeares and before 16. do marie the heir female she shal haue liuerie foorthwith vpoÌ„ the mariage H. 35. H. 6. in Fitz ti Gard. P. 71. althoughe she then bee not of the age of xvi yeares because that she was of full age before as it is there said that is to saie as sone as she was 14. And that ii yeres ouer is but only geuen for the mariage which when it is once had and the .14 yeres past the kinge or lord lese theire interest And so it was granted that if she were maried before the age of .14 and after her husbaÌ„d dies before the said age when she comes to the said age of .14 she shal haue liuery And there it was also said that these ii yeres were geuen to the lord to tender her mariage in for the tender before was void because it was wtin the age of 14. yeres But note that if the heire female being vnder the age of 14. yeres falleth in to the kinges handes as ward because of certen lands that her father held of the king in cheefe by reson therof the king hath also the lands inward which are holden of other in socage in this case when she comes to the age of 14. yeres and is vnmaried she shall not haue liuery of these landes holden in socage and yet by reson of them the king hath not the mariage of her But what then she cannot sue her liuerie by parcels and that is the cause that the hole land shal tary in the kings hands til a hole liuerie mai be sued of them all and this aperes in the newe Natura breuium fo 256. And last of all note that this latter clause extends not to women that clayme by purchase but onlie by disceÌ„t And therfore it aperes .15 E. 3. 15. E. 3. iÌ„ Fitz ti Liuere P. 31. that where it was found vpoÌ„ the Diem clausit that the wife was iointly infeffed with her husbaÌ„d she had an ouster le main without findinge any suertie of her mariage And note also that by the comon law yf one will mary the kings nief 33. li. ass in Fitz ti Trauers P. 36. that is to saie his bondwomaÌ„ wtout license he shal paie a fine vnto the king as aperes in 33. E. 3. li. Assisarum The fifth chapiter ET si vna hereditas quae de Rege tenetur in capite desceÌ„dat pluribus participibus tunc omnes illi heredes facient homagium Regi et illa hereditas quae de Rege tenetur participabitur inter heredes illos ita quod quil'z eorum extunc partem suam tenebit de Rege This statute is somwhat declared by a statute longe time made before that is to saye in the 14. yere of king H. the .3 called statutum Hibernie de coheredibus which for the better declaracion of this prerogatiue I haue also here noted HeÌ„ricus dei gratia rex Anglie dominê° Hiberniae et dux Aquitaniae et NormannÌ„ comes Andigauie dilecto et fideli suo Gerardo filio Maurisci Iusticiar ' Hibernie saluteÌ„ Cum milites de partibus Hiberniae nuper ad nos accedentes nobis ostenderunt quod cum hereditas deuoluta sit inter sorores in terra nostra Hibernie Iustic ' nostri in eisdem partibus itinerant ' incerti sunt vtrum post natae sorores tenere debeant de primogenita sorore et ei facere homagiuÌ„ an non Et quia predicti milites petieruÌ„t certiorari qualiter iÌ„ regno nostro ' Anglie iÌ„ casu consimili hactenus vsitatum fuit sic ad instantiam eorundeÌ„ vobis significamus quod in regno nostro Anglie talis est lex et consuetudo in hoc casu quod si quis tenuerit de nobis in capite et habuerit filias heredes ipso patre defuncto aÌ„tecessores nostri habueruÌ„t et nos semper habuimus et cepimus homagium de omnibus huiusmodi filiabus et singule earum tenerent de nobis in capite in hoc casu Et si infra etatem fuerint nos habebimus custodiam earum et maritagium singularum Si autem de alio domino tenuerint et ipsae sorores infra etatem fuerint earum dominus habeat custodiam et maritagium singularum et primogenita tamen faciet homagium domino pro se et omnibus sororibus suis et alie sorores cum ad etatem peruenerint
whether they be of full age at the death of their auncestour or within age or some of them of ful age some of them within age none of them that be of full age shal haue any liuerie but with a particion that for the kinges benefite because that vpoÌ„ the particion euery one of theÌ„ shal haue for his portioÌ„ some parte of the landes that are holden of the kinge in Capite For if some should haue for their porcion onlye the landes holden of â—ther then the king shoulde lose his prerogatiue in those landes hereafter for euer because that they that haue them when they shal dye hold nothing of the kinge in capite and so might the king be deminished of his auncient rights of the Crowne which were against all naturall equitie Wherefore the lawe was euer they should all holde of the king And that appeareth by the writs of Liuerie in which writes there is a prouiso that euery one of them shall haue in her purparte parcell of the landes that are holden of the king in Capite as you may see in the new Natura breuium fo 2â—â— And this liuery must be sued with a particion or else it is missued H. 16. E. 3. in Fitz. t. Liueri P. 29. it cannot be sued forth vntill such time as all the writes of Diem clausit extremuÌ„ are come into the ChauÌ„cerie returned as appeareth 16. E. 3. And then if all the coperceners be found of full age then a write shall goe out of the Chauncery to the Sherife to extende the landes after the extent retorned a write shal goe to therchetour to make particion and liuerie according to thextent therof made as appeareth in the newe Natura breuium fo 262. But if one of the coperceners be within age and in the kinges warde then the particion may be made in the Chauncery then to haue a write of Liuerie to thexchetour of her parte or else it may be wholly done in the Countrey by thexchetour like as they had bene bothe of full age that is to say shee of full age being there present in her owne person and she that is within age onlye by Prochein amye as it appeareth in the saide newe Natura breuium fo 26â— Whiche write shal bee retourned with the particion and afterwardes enrolled in the Chauncerie And it shoulde seeme that if after the write of extent retourned she that is of full age do praye a write of liuerie with a particion that she shall then neuer after haue a reextent if so be that before it were so highlye extended Like lawe is it if the particion be not egal and she notwithstanding will accept it But in all those cases she that was within age if she haue to litle for her porcion she may haue a write of participatione facienda against her other copercener or a Scire facias in the Chauncerie vppon the recorde of Particion that is there to shew why newe particion or extent shall not be made By which write if they bee warned and come not or come and saye nothing the land shal be receiued into the kinges hands and a newe extent made in the presence of the parties whiche if it be not extended as it shoulde be they may pray a reextent before particion made for after particion the prayer cometh to late And this may ye see in the newe Natura breuium fo 65. and in .2 E. 3. et 2. E. 3. in Fitz. ti LiuÌ„e P. 8. 13. E. 1. eodem ti p. 6. 13 E. 1. but learne whether she may defete the particion by entre wtout suyng any such writes or no because the other are in by matter of record the is to say by liuerie wherunto she is also after a maner party So is it not like the case of a straÌ„ger for a straunger that hath eigne title may enter vppon them after Liuerie notwithstandinge they haue the possession by matter of record á 7. E. 3. f. 36. And it is said by Hill 17. E. 3. that aduowson assigned in Purpartie may be defeated by puttinge debate vppon the presentment without any other Proces And note that sometymes the king is to take a detriment by the liuere with the particion As take the case to be where some of them be within age and in the kinges warde and some of full age and theyr auncestour dyeth seased not only of Landes holden in chiefe but also of Landes holden of other Lordes they of full age haue liuerie with a particion now the kinge leeses the wardwip of as much of the lands that are holden of other as they haue Liuerie of and yet if no particion had bene made the kinge shoulde haue had the Wardshippe of the whole til the heire had come of full age as Mombray affirmeth M. 21. E. 3. 32 21. E. 3. And note also that of thinges entier the kinge shall haue by nonage of one of them the whole and the other that bee of full age gett no parte of it ne yet liuerie therof ne particion as take the case to be this A maner holden of the king in chiefe wherunto aduouson is appendaunt discend vnto three coparceners and one of them is within age and in the Kinges warde the other two that be of full age maye sue theire liuerie for the lande with a particion but not for the aduowson For that shall whollye remaine to the kynge duringe the minoritie of her that is in warde 38. H. 6. f. 10. M. 21. E. 3 fo 34. And this appeareth 38. H. 6. et 21. E. â— And note that if vppon particion made thexchetour retourneth that some haue theire partes deliuered them and some not because they sued not to him for it they that did not sue maye at all tymes in the Chauncerie sue out a writte vntoo Thexchetour to haue the same deliuered vnto them in whiche write there shal bee enclosed a transcripte of the Particion as it appeareth in the saide newe Natura breuiuÌ„ fol. 2â—â— and there it appeereth also fol. 293. that liuerye with a particion was sued for landes holden in Burgage but by likelyhode it was no commen burgage for as it appeareth the heire did his homage for the saide landes And note also that if the Coparcener of full age take the parte of her sister whiche is in the kinges Warde by lease or graunt of the kinge Durante minore etate by this she suspendes the particion For notwithstanding she haue the one moitie deliuered her with the profites of the other moitie yet when her sister commeth to full age both they shal sue a newe lyuerie with a particion as appeareth in the saide newe Natura breuium fol. 2â—2 The sixth chapiter SImulier ante mortem antecessoris sui qui de rege tenet in capite ante annos nubiles maritat ' fuerit tunc rex habebit custodiam corporis illius mulieris vsque ad etatem
and strayfe and such like againste the kyng And allso it appearethe in the boke in 8. H. 5. that the kyng may surcesse his time as wher it is founde that tenant for terme of life hath forfaited hys estate to the king whereby the king ought to sease yf hys grace sease not but tarie till he be dead so that hee in the reuercion entreth he can not then sease so it may appere vnto you that though this be an auncien text quod nullum tempus occurrit regi yet in cases it dothe where this texte is onely apointed by this statut to serue wher the bishop taketh the benefice by laps yet by an equitie it is taken in some cases to extende to a plenartie that is to saye where a strauÌ„ger hath presented his clerk is in by six moneths As take the case to be where the king hath aduowson in ward a straunger vsurpes and his clerke is in by six monethes before the king bringe his Quare impedit yet shall this plenartie bee noe plea against his highnes but that he shal recouer and the reason of it is beecause els the kynge shoulde be witheout remedye For writ of right he cannot haue hauing but an estate in the thinge as gardeyn Wherefore in thys case nullum occurrit ei tempus for els it should appere that a straunger mighte holde a thinge merelye by wronge againste him withoute anye good grounde or beeginnynge that can bee intended of it whiche case is agreed .18 E. 3. et 43. P. 18. E. 3. fo 15. P 43. E. 3. fo 14. E. 3. But yet in this case the kynge maye not put oute thincumbent whiche is admitted instituted and inducted in the benefice without sute that is to saye Quare impedit beecause it is so prouided by the statute of .25 E 3. capitule .3 .3 R. 2. cap 1. Like lawe is it yf the kynges tenaunt be seased of a manner holden in chiefe to the whiche aduowson is appendaunt and alienethe the manner wythe the aduowson wytheout lycence after the churche beecommes voyde and a straunger vsurpes and so twentie vsurpacions one after an other and afterward these alienacions without lycence are founde by office and the churche becomes voyde the kynge shal present notwithstanding those vsurpacions and if the churche bee full H. 4. E. 3. in Fits ti quare impedit 33. hys highnesse maye haue a Quare impedit against thincumbent Causa qua supra And thys appeares in .4 Edwarde the thirde But yf the kynge bee seased of an aduowson in his demeane as of fee it seemes that plenartie shal bee a good plea againste hym for there his highnesse hathe remedye prouided hym that is to saye 18. E. 3. f. 15. 43. E. 3. 14. bye writ of ryghte and so is thoppinion of Sharde wylby 18. Edwarde the thirde Quere for in the bookes of .43 Edward the thirde the defendaunt durst not abide by the plea but trauersed the title that was made for the kyng And learne whether plenartie be a good plea against the quene whiche holdethe for terme of lyfe the reuercion to the kyng P. 18. E. 3. f. 13. for this case is also left at large in A. 18. Edward the thirde Now to the statut where the woordes be that no laps shal holde againste the kinge if he present within syx monethes These woordes yf he present within six monethes be voide for thoughe hee presente not yet title of laps shall not take place agaynste hym by this statute P. 18. E. 3. 21 and therefore the booke is .18 Edwarde the thirde that where the laps was incurred in the life of the kynges tenaunt and beefore the ordinaâ—â—â— presented the tenaunt dyed and yt was adiudged that the kynge coulde not presente wythein the syx monethes beecause his tenaunt was then aliue What say you then to this case yf the laps dyd incurre after the deathe of the kinges tenaunt and beefore office found the kynge not withstandinge shal haue the presentment after office found as it is greed 14. Henrye the seuenthe P. 14. H 7. 22 and yet ther the king might haue presented after the deathe of hys tenaunt before offyce founde and did not And in the saide booke of .14 H. 7. it is left for a question sins the ordynary caÌ„ not present by laps against the kinge howe in what manner the cure shall bee serued in the meane time that is to saye beetwene the laps and the kinges presentment somme thinke in that case that the ordinarye shoulde presente one for the meane time whiche shoulde bee remouable alwayes at the kynges pleasure and some other thinke he shoulde sequester the fruites to fynd the cure Ideo quere And Bracton li. 3. in the writte of Darrein presentment saiethe that this title of presentment by laps was geeuen to thordinarie by a constitution made in the councell of Lateranense The nynthe chapiter REx habebit custodiam terrarum fatuorum naturaliuÌ„ capiendo exitus eorundem sine vasto distruccione inueniet eis necessaria sua de cuiuscunque feodo terre ille fuerint post mortem eorum reddat eam rectis heredibus ita quod nullatenus per eosdem fatuos alieneÌ„tur nec quod eorum heredes exheredentur This prerogatiue beganne in the time of kynge E. 1. as yt shoulde seeme to mee beecause I fynde none that wrote of it before Britton for Bracton speakes but a lytle of Ideotts iâ— his fifthe boke in the title of exceptions againste the plaintife where he sayethe it is a good exeption to the parsone of hym that complainethe or bringeth anye accion to saye hee is a foole naturall quia tales non multum distaÌ„t a brutis qui ratione carent nec valere debet quod cum talibus agitur sed tamen discussio huiusmodi exceptionis discrecioni iudicis re linquitur and sayethe like lawe is it of hym that coulde neuer heere nor speake from the time of his natiuitie quod inuenienda sunt eis necessaria quoad vixerint per officium iudicis pro qualitate persone hereditatis quantitate si heres esse debeat si semel authoritate curatoris adquisierit si fuerit inde eiectus recuperabit per assisam sicut minor By this it appears that the kyng had no prerogatiue but the iudge Howbeit Britton f. 167 saiethe that the kinge oughte to haue his prerogatiue herein for these be his words Et pur ceo que ascun foites auient que ascun heire est sotte naste ê‘ quoy il nest my able a heritage demauÌ„der et garder volumê° qÌ„ tiels heires de qui que ils ne vnques teigoÌ„nt males females demurgent en nostre garde ouesque toutes lour heritages sauant a chescuÌ„ seignour touts auters seruices que a luy appendaunt de terre tenus de luy icy remainount en nostre gard tant come ils duront en lour sotie ceo
any suche accion against the kinge For Bracton which wrote in king H. 3. time or nere thereupon saith in his .iii. booke vnder the title Contra queÌ„ coÌ„petit assisa in this wise Inter cetera videndum est quis sit ille qui deiecit Princeps ex poteÌ„tia vel aliquis nomine suo vel iudex qui male iudicauerit an priuata persona si princeps vel rex vel alius qui superiorem non habuerit nisi deum contra ipsuÌ„ non habebitur remedium per assisam imo tantum erit locus supplicationi vt factum suum corriget et emendet quod si non fecerit sufficiat ei pro pena quod deum expectet vltorem qui dicit mihi vindictam et ego retribuam nisi sit qui dicat quod vniuersitas regni et Barronagium suum facere possit et debeat in Curia ipsius regis sed si alius ex facto et disseisina principis statim vel ex post facto in seisinam institerit quamuis talis incidat in assisam et in penam vel tantum ad restitutionem secundum quod seisina ad ipsuÌ„ peruenerit statim vel ex post facto sine principe tamen conueniri non poterit per assisam quia licet quodamodo disseisinam fecerit tamen non per se sed cum alio s. cum principe et ita quod sine eo respoÌ„dere non potuit et ita non procedit assisa Indirecte tamen et quasi ex incidenti et sine breui comprehendi poterit persona principis ad hoc quod factum suum emendet vel in ê‘sonam suam reduÌ„dabit iniuria manifeste vt ecce Esto quod impetretur assisa tantum super eum ad quem res translata est sine principe et qui tenetur ad restitutionem et ad penam vel ad minus ad restitutionem et ipse respondeat quôd sine principe qui fecit iniuriam per se vel per suos respondere non debeat quia ipse princeps per se fecit iniuriam vel ipsi duo insimul extunc erit factum et iniuria in manu domini regis qui dici debet in facto quasi warrantus et quod tunc poterit si warrantus voluerit factum suum emendare quasi a lege compulsus et quam in persona sua cum sit ei submissus debet firmiter obseruare So that by Bracton it appeareth that no accion lyeth against the kinge but the partye greeued is dryuen to sue to the king by peticion But the reason why that aduowsons shoulde passe in the kings case by the order of the common lawe thoughe it were not expressed in the graunt was this I suppose because that landes or tenementes were not then compted as thinges that touched the roiall estate or that made the kynges crowne lyke as Liberties or fraunchises did For the one a comon persone might haue as well as the kinge but the other none might haue but the king or suche as were able to shewe his grant therof and therefore saith Bracton in his first booke vnder the title que res dari possint that for landes currit tempus contra regem sicut contra quamlibet priuatam personam Which is as much to say that if the king had right to any such landes or tenementes and hadde surcessed his time so longe that it exceeded the time of limitation in a write of right his highnes hadde lost then his right for euer And herewith agreeth Briton fo 29. But that is saith Britton of landes parcell of the kinges eschetes or pourchased landes and not of the auncient demeasnes of his crowne for of those nullum currit ei tempus if hee haue anye righte to demaunde them So that by Britton this reason will not serue for landes parcel of the crowne Ideo quere veraÌ„ rationem Howbeit since this statute made what landes soeuer they be those thinges that are comprised in this statut passe not without making expresse mencion therof Hetherto we haue spoken of the reason why at the common lawe aduowsons shoulde passe by graunt of the manour without being named now let vs see how since the makinge of this statute it shal lykewise passe by graunt of the manour without being expressely named and how not And if the kinge render vp to him that was in warde at ful age his landes or to a bishopp his temporalties although he make no mencion of knights fees or auousons yet all passe therwith for like as the kinges seisine in suche case is by these woordes omnia terra et tenementa without speakinge of fees or auowsons euen so being sued out of his handes by these woordes omnia terre et tenementa Liuerie p. 7. T 16 E. 3. p. 30. fees and auâ—wsoÌ„z do passe without making any mencion thereof And this appeareth .5 E. 3. .16 of the same king Where after the death of an ydeot the king rendred againe the lands to the heire not making meÌ„tion of fees or auousons yet he had them And likewise 41. et 44. E. 3. the kinge graunted the temporalties to one that was elect bishop before he was coÌ„secrat H. 41. E. 3. f 44. E. 3. f. 22. aiudged that fees aduousons passed wtout making any meÌ„cion therof yet at the time of the graunt he was not bishop for he lacked consecracion And the reson in all these cases is for that the king was but seised in another bodies righte and by his liuerie he geueth nothinge vnto them but only restoreth theÌ„ to their right they had before Like law should it appere to be by Finchden .29 E. 3. H. 29. E. 3. in Fitz. ti Quare impedit p. 190. If auousoÌ„ of a church be appeÌ„daÌ„t to a Priorie which Priorie is seised into the kings haÌ„ds by resoÌ„ that an alieÌ„ is patron of it afterward the king dimiseth the saide Priorie cum pertinenÌ„ not makinge mention of thauouson vnto the saide Prior yelding a rent to haue to hold the same during the warre And his reason is this for that the right freehold in this case remaineth still in the Priour notwithstandinge any such seisin the kinge is but to haue an annuel profit therof no right but if anye bee to sue dower or liuerie with a particion out of the kinges haÌ„des they by that cannot haue thauouson if mencion be not ther of made no more than they can that claim by Graunt and yet the king rendreth them the thing in respect of a right be fore as he doth in the other cases But what then they claim not the whole lande that is in the kinges hands but only parcell therof then thauouson euermore abydeth with that that remaines if expresse mencion be not made therof and so not like the cases before where the king makes liuerie of the whole And this case appeareth also in the said booke of 5. E. 3. And note
goodes to the kinge without anye exception And hereuppon it is to be seene firste what is comprised in thys woorde catalla Catalla is a generall woorde whiche comprehendes as well Chatels mouable as not moueable For leases for terme of yeares are within this woord catalla as appeareth by Bracton in his seconde booke in the tytle of Forfaiture of Felons sayeng quod terminum annorum erit domini regis vt catalla Quia accipit terminum ad similitudinē catallorum And therewith agreeth the booke in 39 H. 6. 39. H. 6. 34 Also vnder this woorde catalla is taken the issues and profites of landes and tenementes of them that flye for felony vntill suche time as they bee attainted or acquited And like wise of the Landes and tenementes of clerkes conuicte vntill suche tyme as hee hath made hys purgacion I meane lands tenements as wel of their wines right as of their own right P. 4. E. 2. in Fitz. Forfaiture p. 16. 16. E. 3. Corone p. 356 296. et 344. so is the booke 4. E. 2. et 31. E. 3. Also vnder this word contra are takē the emblements that were growing vpō the ground at the time that the forfaifure of the goods first began to take place as appereth 3. E. 3. Also vnder this word Catalla is cōprised a right of acciō to goodes as wher goods be taken away wrongfully frō the felon or wher one is endetted to the felon by obligacion P. 6. H. 7. in Fitz ti Forfaiture p. 12. M. 19. H. 6. fo 47. et H. 30 H. 6. fo 5. P. 28. E. 3. 92 et t. Trauers 32. lib. Ass p. 33. or is accomptable to the felon for any receites or otherwise this appeareth 6. H. 7. et 19. H. 6. Also vnder this word Catalla is takē sometims goodes wherin the felon hath no propertie as if a man deliuer money out of a bagg or corne out of a sacke to one to kepe which is afterwardes attainted of felonye the money or corne in this case is forfaited Like law it is if a thief that steales goodes seuerally from sundry persons afterwarde is attainted for one of the said felonies by this one attainder the goodes that are stolen from the other bee also forfaited to the king Like lawe is it if one steale goods and before he be attainted therof he killeth him selfe or dyeth in prison or abiures the realme confessinge an other felonie then that for the which he fled to the churche in these cases he forfaiteth the gooddes that hee did steale So it is if the wife kill her husbande shee forfaites the goodes of her husbande 44. E. 3. f. 39. 26. li. ass p. 32 And these cases ye maye see in the title of Corone in Fitz. p. 317. 323. 334. 318. 162. 319. 380. 379. 423. And in the title of Auowrie p. 151. And in the title of Forfaiture p. 15. Then let vs see further what may be saide vppon this word Felonum If th offence that is committed be felony then is it properlye within the compas of this woorde Felonum he that committes th offence shal be saide Felo Notwithstanding that he therefore shal not suffer death as in a case where one killeth another se defendendo or by misaduenture this offence is felony and hee that committes it shal forfait his goodes notwithstanding that hee obtayne pardon of life Coron̄ 116. Felonie 599. Dower 183. For it was at the kings pleasure to graunt pardon or not And this appereth 15. E. 3. But so shal not he that killeth one that woulde robbe him in his house Or the officer that killeth one that will not be rested nor hee that killeth any thing not yet borne as a childe in his mothers bellye nor the parsone that is straught that killeth another in his madnesse For in all these cases it is not felonye The woordes bee further Damna torū fugitiuorum Sometimes the king shall haue his chatell although he be not condemned of the felony as if a man be arrested for felony and afterwardes breakes the arrest and the other ere hee can take him againe killes him in this case hee that is killed shall forfaite his goodes and yet hee was neuer attainted of th offence Corō p. 312. et p. 290. Like lawe is it if bee were killed in the first arrest where he woulde not bee arrested And this appeareth 3. E. 3. Howbeit since that tyme there was a statute made anno 34. E. 3. cap. 12. Whiche seemes to alter the lawe in these cases if it bee not that you will say peraduenture that he shall forfait them quia fugam fecit Ideo quere Hee that is felo de se shall forfaite his gooddes and yet hee was neuer attainted Like lawe is before H 34 E. 3. in Fitz. Eschet p. 10. of the clerk conuict And so is it of suche as stande mute or challenge aboue the nomber of 2 enquestes as appeareth 34. Ed. 3. Then further this woorde fugitiuorum is taken suche as flee or withdraw themselues for the felonye that they bee endyted appealed or accused of for that makes a great presumpcion against them as Bracton saieth in his seconde booke vnder the title Ad quae restituaturvtlagatus and for that presumption sake shall the vtlawrie proceade whether hee bee giltye of the felonye or not And also saieth hee in the saide booke quód vtlagati de felonia gerunt caput lupinum secum suum portant iudicium ita quod sine iudiciali inquisitione pereunt quia merito sine lege pereūt qui secundum legem viuere recusauerunt et hoc ita si in capiendo fugiant vel se defendant Si autem viui capti fuerint vel se reddiderint vita illorum et mors est in manu domini Regis et qui taliter captum interfecerit respondebit pro eo sicut pro alio nisi sit in locis vbi consuetudo se habeat in contrarium videlicet in com̄ Hereford et Glouc̄ And in an other place hee saieth Quod nullum crimen maius inobedientia quia pro contemptu et inobedientia porerit quis excommunicari sicut pro quolibet peccato mortale cum omnes subditi debeant esse Regi tanquam precellenti maxime in honestis et ducibus eius tanquam ab eo missis et sic concordat lex diuina aliquantulum cum humana And also saieth quod vtlagatus de felonia foriffacit patriam et amicos forisfacit quae pacis sunt forisfacit quae legis sunt forisfacit quae iuris sunt et possessionis et forisfacit actionem ante vtlagariam sibi datam Thus by the waye haue I noted vntoo you suche thinges out of Bracton as mee seemeth bee notable and make somewhat for this purpose Althoughe I needed not to haue gone so farre as to outlawrie for exposition of this woorde fugitiuorum but might haue rested at the flyenge For if one flee for the
deathe of a man and this presented before the Coroner hee shall forfait all his goodes that hee hadde the daye of that presentment or at anye time since till hee bee acquited of the saide deathe And notwithstandynge that an enquest vppon hys arrainement doth afterwarde acquyte him Forfaiture 32. et 35. Coron 296. 344 and also fynde that hee did not flee yet his goddes remaine still forfait as it appeareth 22. lib. Assise p. 96. et 3. Edwarde the thirde Lyke law is it where one arrayned of felonye beefore iustices is founde not giltye of the felonye Howbeit it is founde that hee withdrewe himselfe for the saide felonye nowe shall hee forfaite his goodes but no profites of landes as hee shall doo in the other case where it is found before the Coroner For when the forfaiture shall haue no further relacion but to the daye of the presentment and not to the daye of the flyenge then when at the same daye hee is acquited of the felonye then is the kynges title gone as to the landes and so consequentlye gone as to the issues And this appeareth 3. Edwarde 3. Coron 344 Also there is an other maner of fleeynge for the whyche a manne shall forfait his goodes and that is where in appeale or enditement of felonye the partye that is appealed or endited will not appeare but suffer the exigent to be awarded against him hee thereby forfaiteth hys gooddes and the profites of hys landes whiche he hadde the daye of thexigent awarded or at anye tyme after And notwythstandinge that hee afterwardes happen to bee acquyted of the sayde felonye yet the forfaiture remaines For when hee tarrieth the awardynge of thexigent it appearethe of recorde that hee hath withdrawen hymselfe and thys you shall fynde in 22. lib. Ass pl. 81. and 41. li. Assise 41. Ass p. 18 Howbeit herein is there heede to bee taken lest there bee errour in the awardynge of the saide Exigent For if there bee hee shall then forfait nothinge as if the exigent bee awarded againste the accessorie beefore it bee awarded against the principall or beefore the principall bee attaynted or if an exigent bee awarded againste one that hathe a charter of pardone for the felony of elder date than is the awardynge of thexigent and hath founde suertye accordynge to the statute and the same retourned into the chancerye before thexigent awarded P 43 E. 3. â—â— 17 For in these cases he shall auoyde the forfaiture vppon the matter shewed Contrarye lawe it is if after the exigent awarded the appelle doe abate for insufficience or for that that hee that is outlawed was emprisoned meane betweene the awardynge of the exigent and the outlawrie pronounced For in that case if he reuerse the vtlarie yet his goodes remain still forfait Forfaiture .31 et .19 Howbeit if he were emprisoned at that time of the exigent awarded otherwise it is this appereth .19 E .3 and .30 H .6 Also it is to bee noted that one maye flee for felonye and yet hee shal forfait nothinge as where one is arrested for suspicion of felonye and escapes yet for thys hee shall not forfait his goodes if hee were not taken with the maner or at the sute of the partie or endited of the same as it appeareth .42 Coron 224. li. Ass Quere if hee bee endited afterwarde whether hee shall then forfait them or not Also an accessorie after the felonye committed shal forfait nothinge vppon a Fugam fecit Otherwise it is of accessories beefore the felonye committed Forfaitur 10 as it appeareth .4 H. 7. But he that withdraweth him selfe but for Petit larcenie shall forfayte his goodes Coron 406 as it appeareth .8 E. 2. tamen quere And note for a generall rule that the towneship where the goodes of felones or fugitiues bee founde shal alwaies aunswere the kinge of them and the shiriue of the issues and profites of the landes and therefore the towneship may seise them for the kinge For it is no plee for them to saye they were not deliuered vnto them 22. Ass p. 81. 11. H. 4. 39 And this appeareth in Fitzherbert in the title of Corone pl. 390. et p. 366. 300. 347. 290. 308. 22. and in the title of forfaiture pl. 32. But at what tyme the goods of a felone or fugitiue shal bee seised it is further to bee seene and howe the attainder shall haue relacion When it is founde by enquest beefore the coroners quod fugam fecit by and by the shiriue shall seise his lands intoo the kynges handes by woorde onelye without taking anye enquest for the same purpose and also shall seise all his goodes into the kinges handes and take an enquest as well of free menne as of villeines to apprise them and cause them prise to be enrolled to the coroners and to deliuer them to the towneship to make aunswere thereof to the kynge And this appereth 22. lib. ass P. 96. And herewith agreeth the statute of Coroners and also Britton fo 4. Where you shall see this matter set fourthe more fully And in .43 M. 43. E. 3. fo 21. it is sayde that the kinges minister may seise the goods of a feloÌ„ before attaiÌ„der if the partie finde suertie then he to leaue them in the custodie of the partie or els in the neighbours custodie For the sayd minister ought not to carrie them awaye with him T. 7. H. 4. fo 41. 7. H. 4. Hull sayeth that yf one bee endited of felonie yet till hee bee attaiÌ„ted his goods shal not be remoued out of his house but in the meane time shal be in his neighbours keapinge and he to be found of the same And in the Register there is a write quod tenÌ„ta et bona taliter capta videantur imbreuientur et saluo custodiantur per balliuum ipsius capti qui se curitatem regi inuenieÌ„t ei respodeÌ„d ' si c. saluis inde ipsi capto et familie sue necessariis quam diu fuerit in prisona And so is Britton fo 17. Howbeit now by the statut made in the first yere of kinge Richarde .3 the thirde ca. it is ordeined that none shall seise the goods of any person arrested or emprisoned before that they be attainted or that the goods bee otherwise forfaited vpoÌ„ peine to pay the double value thereof This statute extendeth not to any other but too such as be in prison For by the statute de proditionibus 25. E. 3. ca. 14. If one bee endited of felonie which is not emprisoned the sheriue at the second Cape shal seise his goods and yet they bee not at that time forfaited And also the statut of R. 3. doth not extend to landes but onely to goodes Then for the relacion as for the goodes it hath no relacion but onely from the daye that the forfaiture is presented or verdit geuen and therfore it is sayd in 33. E. 3. that if he sell
driuen to sue liuerie Further then let vs see in what cases the kinge shall haue annum diem et vastum and in what not The kinge shall not haue annum diem et vastum of clerks coÌ„uict after verdit because hee forfetes no land Like lawe is it of lands in Gauelkinde where the father is hanged but otherwise it is if he be outlawed or abiured for felonie for there the kinge shal haue the yeare daie wast and this appereth 3. 3. E. 3. in Fitz ti corone P. 332. et Prescription P. 50. E. 3. et 8. E. 2. If the husband be atteinted of felonie the kinge shall haue the yeare daye and wast of the laÌ„ds of the wife and yet in the case the lordes shall not haue theyr eschetes But what then the husbaÌ„d might haue done wast and the wife had had no remedie for the same and by the same reason the kinge maye doe as much and this appeareth 3. 3. E. 3. in Fitz ti corone P. 327. E. 3. And also in Bracton in his second boke And also it shoulde there appeare that the wiefe is driuen to sue anouster le main after the death of her husbande If one be arested for felonie brekes the arest so that in the pursuyt of him he is killed because hee woulde not otherwise be taken 3. E. 3. in Fitz ti Corone P. 312. et 290 et 308. the king in this case shal haue the yere day and wast as it appereth 3. E. 3. If a man coÌ„mit felonie and hathe his charter of pardon yet the king shal haue the yeare day wast and the lordes theyr eschetes this appereth 3. E. 3. for the pardoÌ„ doth not restore him but to the lawe For though the kinge would pardon him with words of restitucion yet his grace could not therby restore him to the laÌ„ds holdeÌ„ of other And note that the king shal haue the yere 3. E. 3. in Fitz ti Corone P. 310. day wast of laÌ„ds in ancieÌ„t demesne if it so be that the tenaÌ„t myght haue sold the said lands against the will of the lord as it appereth 3. E. 3. and that notwtstanding that the sayd lands were alwayes vsed to be surrendred by the rodde to passe by surreÌ„der The words of the statute be further Exceptis hominibus quoruÌ„daÌ„ priuilegiatoruÌ„ indâ— ê‘regeÌ„ 46. E. 3. f. 14. 1. H. 6 fo 12. M. 8. H. 4. f. 1 Corone 31. That is as much to say except such as haue Bona et cattalla felonuÌ„ by the kynges graunte for a man can not prescribe to haue Bona et catalla felonuÌ„ as appereth 46. E. 3. 1. H. 7. 8. H. 4. nor none may haue this prerogatiue of yere day wast but only the kinge although hee would claime it by charter froÌ„ the kinge or otherwise as it appereth 3. E. 3. But when the king is seised of it he may coÌ„mit it ouer as appereth by Bracton in his sayd 2. boke But if the land wherof the kinge should haue the yere day and wast be vnder the yerely value of iii s .iiii. d it is vsed to bee remitted for the smallnesse and simplenesse of the thinge as appereth 3. E. 3. 3. E. 3. in Fitz ti Corone P. 327. for it shoulde cost more the suing of it out of the kinges handes than the thing is worth And note the custoÌ„e of Gloc ' comprised in this statut wherby it should appere that notwithstanding any such custome yet the king should haue annuÌ„ et dieÌ„ but not so of laÌ„ds in Gauelkinde as I haue sayd before ¶ Proces to bee sued after the deathe of the kinges tenaunt in chiefe By a statute made in the 33. yere of the late kinge of most famous memorie H. 8. the 22. chapter it is ordeined and prouided amoÌ„ge other things that no person or persons hauing lands or tenemeÌ„ts aboue the yerely value of fiue poundes shal haue or sue any liuerie before inquisitioÌ„ or office fouÌ„d before theschetour or other commissioner or commissioners by vertue of the kinges writ or commission too bee directed out of the kinges chauÌ„cerie or other courtes hauing authoritie to mak suche writes or commissions for suinge of liueries which writs or commissions shal not passe out of the chancerie nor any other courts but by a warrant or bill too bee assigned and subscribed with the handes and names of the master of the kinges wardes and liueries surueiour of his liueries or the attourne and resceiuor of the court of the wardes and liueries or three twoo or one of them to bee directed deliuered to the chanceller of England or to any other chanceler or officer hauiÌ„g power to awarde such writes And if the lands or tenements wherof any inquisition is to be had by vertue of any such writ or commission excede the yerely value of fiue poundes that then such as sue for such writes and commissions shal pay for the seale and writing therof such fees as hath ben accustomed And if the sayd laÌ„ds tenemeÌ„ts wherof any such inquisicions and offices ar to be found by vertue of any such writ or commission excede not the sayde yerely value of v pounde theÌ„ such as shal sue for such writs or commissions shall paye for the seale of euery of them vi d and for the writinge vi d and not aboue This statut doth not set fourth the name of the writ or coÌ„missioÌ„ that shal bee sued howbeit these words that follow that is to sayr for suinge of liueries do somwhat open the minde of the makers of this statute and declare that their meaninge was of the diem clausit and such other writs or coÌ„missions as serue for that purpose and not of euery writ or coÌ„missioÌ„ for so might an office be found by a wroÌ„g writ or coÌ„missioÌ„ which should want mater or be other wise insufficient to make liueries But learne and enquire if after a good writ or coÌ„missioÌ„ sued fourth the office that is found is not sufficient whether the partie shal haue his liueri or not without suing a melius inquirenduÌ„ or a new office because that some parauenture wil say that the words of the statut be performed that is to wite an office or inquisition is found But to that it may be answered and sayd that that it is no office when it is insufficient at least wise toward the partie that should sue liuerie therupon although it be a good office toward the kinge if any thing therin conteined be for his benefit And learne also if the kinges tenant dye seised of landes in diuerse counties whether by force of this statut he shal cause an iÌ„quisitioÌ„ or office to be fouÌ„d in eueri couÌ„tie where the lands lye for so is it vsed to be done vpoÌ„ al general liueries he that sueth his general liuerie otherwise missueth the same and is an intruder vpon the kiÌ„gs possessioÌ„ howbeit peraueÌ„ture you wil say that
if the laÌ„ds excede the yerely value of .xx. marks he must sue a specyal liuerie not a general therfore it makes no mater for the inquisitioÌ„ or office that the words of the statute wil beare it wel enough if there be but one office fouÌ„d But as to that it may be sayd that the meaning of the statute was not so for the kinge can neuer be fulli eÌ„formed of his title vnlesse ther be an office fouÌ„d in euery shere also by finding of seueral offices one record may be better for the kinge then an other whereof his grace may take auaÌ„tage for the best shal be takeÌ„ for the kinge Thus it appereth by statut how that of landes aboue the yereli value of vli inquisicioÌ„ must be made and an office found after the death of the kinges tenant be fore liuerie can be had and that must be by a writ of dieÌ„ clau sit extremum for that is the proper writ that is to be sued for that purpose if any sute be made within the yeare after the kinges tenants death or a special commission in the nature of the writ of diem clausit For vpon a general coÌ„missioÌ„ to enquire generally of all wards no perticular person can haue liuere And if he tarry till after the yere then he caÌ„not pursue any of these but for his remedie must sue a writ called Mandamus or a commission in nature of that writ and therupon to cause an office to be fouÌ„d and so to haue liuerie But if an office be once found by diem clausit and the heier dieth in the kinges ward his heir must sue Deuenerunt no Mandamus although it be after the yere of the death of him that dyed in ward and so is the rule in the register Sumetymes it happeneth that after deliuerie of the writ or commission and before office found theschetor dyeth or is remoued froÌ„ his office in which case then the proces that is awarded to his successor is a writ called Datur nobis intelligi but if office be fouÌ„d before his death or remouing which office is not returned then shall therbe a certiorari awarded to his executors to returne the same For it is a mater of record as sone as the iurrors haue put their seales vnto it notwtstanding it be not returned And note the thawardig of this writ of diem clausit or special coÌ„missioÌ„ is peremptorie to him the sueth for it For if he lese it or be taken froÌ„ him with force he gettes no moe writs or coÌ„missioÌ„s for the lands in that couÌ„tie and this appereth in the new Natura breuiuÌ„ fo 2â—â— Howbeit in 14. E. 4 it is touched by the waye that in such cases he should haue a new writ H. 14. E. 4. so 5. ideo quere But after office ones fouÌ„d by a dieÌ„ clausit or specyal commissioÌ„ as well the kinge partie therby are bouÌ„d as euery other straÌ„ger for somuch laÌ„des as are comprised within the office and neither the kinge ne that partie nor any other shal haue any moe writs or coÌ„missioÌ„s to enquire any further of these lands except it be in such cases as I shal hereafter recite for so the lawe shoulde neuer haue end but newe heires might be founde euery daye by office which were incoÌ„uenient and the king should not knowe to wheÌ„e to make liuerie this appereth .14 E. 4. and 2. et 4. 14. E. 4. f. 5 2. H. 7. f. 2. 4. 4. H. 7. f. 13. H. 7. But where after office found it is surmised for the kinge that his highnes hath a better title than was found for him by the first office whether the mater surmised may stand with the mater fouÌ„d by the first office or not yea although it be mere coÌ„trariaÌ„t or repugnaÌ„t it is not material But in such cases a new writ or coÌ„missioÌ„ shal be awarded As take the case to bee this By the first office it is found the kinges tenaunt in chiefe dyed seised his heir wtin age where in dede hee dyed without heir so that therby the lands ought to haue escheted to the kinge or that he was tenaÌ„t in taile dyed without issue of his body wherby the lands ought to haue reuerted vntoo the kinge in these cases the court shal awarde a new writ or coÌ„missioÌ„ for the kinge Like law is it where the daughter is fouÌ„d heir by office afterward the sonne is borne or where ther is but one daughter found heire by office where there ought to haue ben two fouÌ„d heires or if by the first office one is fouÌ„d heire of ful age which is not heir in dede but an other is heir which is within age In all these cases ther shal be a new writ or coÌ„missioÌ„ awarded Causa qua supra 14. E. 4. f. 5 4. H. 7. f. 13. as it may appere .14 E 4. et 4. H. 7. 12. R. 2 et 30. li. ass yea and a more stroÌ„ger case as it should appere in the new Natura breuium fo 2â—â— fo 2â—2 et f 295. that is to say where the kinge was to haue no benefit at all more then he had by the first office and yet a newe commission was awarded and therfore the case was there the second brother was founde heir by the first office of ful age now the eldest had a commission being also of full age to finde him heir and thervpon had his liuery So is it where 2. be fouÌ„d daughters and heirs to one maÌ„ of certain laÌ„ds where in dede parcel of the said land was geuen to one of the said 2. daughters in fraÌ„k mariage now she that claimed the frank mariage had a specyall coÌ„mission to enquire of the saÌ„e and yet by that second office the king had no benefit ideo quere For this Natura breuiuÌ„ semeth to impugne the bokes before rehersed And like as he may pray a newe writ or coÌ„mission in the cases aboue rehersed before liuerie had euen so may he do in the like cases after liuere had if the liuerie be a general liuerie therupoÌ„ as sone as the title is found the king shal rescise but not wtout a Scire facias because the statut made at Lincoln hath so prouided as I shall open more fully when I come too that place and that in all these aforesayd cases a new diem clausit may be as wel awarded as a new coÌ„mission as it appereth titulo Trauser in Fitz. pl ' 28. anno 29. li. Asss ¶ What thing shal be in the king without office or seasure what not and where by an office only without any seasure or other proces the kinge shal be in possessioÌ„ and where not and where he shal be in possession without an office but not before a seasure and how the kinge may be eÌ„titled by any other recorde as well as by an office and where a man may enter as well vpon the kynges
in this case if ther bee an other record found that proueth the landes to be holden of the kinge in capite vppō these .ii. records together proces shal be made against the partie by Scire facias to come and shewe why he should not make a fine for the alienacion Like lawe it is where there is a record to proue that he that aliened is but tenant in taile of the kinges gift and he pretendinge to be tenant in fee simple doth purchace a licence of alienaciō and a lienethe and after dyethe without issue which deathe is founde by office but nothinge of his state taile or lycence appeareth in the sayde office yet vpon all these recordes laied together the king shal haue a Scire facias against the alienee to show why the land should not be seised in to his handes and his highnesse aunswered of the profites since the death of tenaunt in taile for when hee was but tenaunt in tayle it appearethe that the lycence was pourchased vpon false suggestyon and so voyde 40. li. assise in Fit ti Garde P. 1. and thenne the landes ought to reuerte to the kynge beecause hys reuercion coulde not bee discontinued And this maye yowe see 40. li. ass Then laste of all it is to bee seene whether the possession may bee taken from the kynge bye entrye or not And as to that yf the kynges possession bee by matter of recorde noe persone can dysseise hym or take the possession from hym for lyke as the kynge maye not take by gyfte from anye persone but by matter of recorde noe more maye the possession departe from hym but by matter of recorde and therefore his hyghnes cā not haue assise or Electione firme siue custodie lyke as a common persone maye yea and thoughe the entrie bee not immedyatlye vppon hym but vppon his committee or fermer yet it is noe disseisin to his hyghnesse as it appearethe 4. H 7. folio 2. M. 2. H. 4. M. 14. E. 4. folio 35. H. 6. in Fits titulo Suggestion P. 9. 2 M. 35. H. 6. folio 1 Bye the whiche sayde booke of 35. it also appearethe that if the kynge or hys commyttee bee cast oute of the wardeshyppe of the landes that the remedy is in thys manner that is to saye vppon suggestion thereof made in the Chauncerye there shal bee awarded a wrytte called Amoueas manum and that vppon a certaine payne whyche wrytte maye bee awarded onelye vppon this suggestion wythoute anye presentmente or enquirie and thys writte maye bee graunted to the committee as well beefore possession hadde of the warde as after for where the kynge was once possessed by office and grauntes it ouer yet this possession styll remaines for the kynge abydeth stil gardeyne notwythstandynge anye such graunt And therefore this writte of Amoueas sub pena lyethe for the grauntee or committee although the graunt be absque aliquo inde reddendo And if vppon this writte of Amoueas the defendant do not restore the thing then shall goe out againste him an attachement vpon which writ the defendant maye appeare and shewe his title which if it be founde agaynste him he shall then make restitucion by iugement and paye a fyne and aunswere the meane issues profites Thus dothe it appeare that the king cannot be disseised or eiected if his highnesse bee once seised by mater of recorde Otherwyse it is before his seisin bee by mater of recorde for if beefore office a straunger entre by title or without title this is no intrusion vpon the kinges possession but in this case the heire may haue Assise of mort dauncester againste the straunger if hee will whiche proues that by his entrie hee hath gottē bothe a freeholde and a fee simple But as sone as the office is founde and the eschetoure entreth this possession of the straunger whiche entred witheoute title is clerely vndone and the freeholde and the fee simple reuested in the heyre But if the entrie of the straunger weare by title and afterwarde office is founde and the kynge seisethe whether then it bee so or noe learne And it shoulde seeme to bee all one or els the kynges seisure is not good for howe can the kynge seise in an other bodyes ryghte if the ryghte weare taken awaye beefore by an entrie therefore it shoulde seeme eyther hys highnesse hathe noe title in that case to seise or els by his seisure the freeholde and the fee simple muste reuest in the heire But note that if the kynge wyll bye coloure of a recorde seyse an other mannes lande whiche recorde geeues him noe title in deede notwythestandynge anye suche seysure yet hee that hathe righte maye entre vppon the kynge and bye his entrie reuestes agayn in himselfe bothe the freeholde and fee simple as where it is foūd the kynges tenaunte dyed seysed but of an estate for terme of lyfe the reuersion to an other and thys notwythestandynge the kynge seisethe in this case if hee in the reuersion entre vppon the kynge this is a good entrie and therefore the case was hee made a feffement after his entrie and it was thoughte to be a good feffemēt Like law is it where the kynge is entitled but onelye to the profites as vppon an vtlagarie in a parsonall action or vpon the conuiction of a clerke in these cases if the partie entre and make a feffemēt or if a straunger that hathe title to entre do entre hee dyschargeth the kynge of hys interest and of these maters Trauers 12. Assise 156. you shal find bokes 8. H. 4. f. 16. 21. E. 3. f 1. 3 H. 7. 10. E. 3. 27. ass P 15. 9. H. 6. f. 20. 21. H. 7. f. 7. Enterpleder SOmetyme it happenethe that by two seuerall offices founde in one countie seuerall parsones be seuerallye founde heires to one man wherebye forasmuche as the kinge is brought in doubt to whiche of them his hyghnesse maye make liuerie they therefore muste firste enterplede and when by enterpleder the priuitie of the bloode is tried beetweene them then his highnesse oughte to make the liuerye to him that is tryed to bee the nexte heire of him that dyed As for an example by one Diem clausit or specyall commission in one countie one is founde heire to hym that dyed the kyngs tenant and of full age and by an other Diem clausit or speciall commissiō in the same countie one other is founde heire also to hym that dyed and within age in this case the heire that was firste founde shal haue a Scire facias in the chauncerie against hym or her that was last foūd heire to come shew why liuerie should not be made vnto hym that last dyed seised thereof vppon whiche writte yf a Scire feci be returned and the partye defendaunt cometh not or yf he come and confesse that he hymselfe is not heire then the plaintife in the Scire facias shal haue hys lyuerie but if hee come
reuersion to an other in this case he in the reuersion hadde an Ouster le mayne withoute suinge anye Scire facias againste the patentee as it appeareth in .10 Edwarde the thirde and at this daye the case is more stronger for suche a graunt were voide beecause it is beefore office And therefore vppon anye suche voide graunt there neede no Scire facias And in .14 Edwarde the fowerth fo 1. it appearethe that one had trauersed an office whiche was sente into the kinges benche to trye and had forgotten to sue his Scire facias and yet hee was suffred to goe agayne into the Chauncerie to pray a Scire facias vpon the first trauerse for it was saide that the Chauncerie is a courte of conscyence and for that cause the thinge that was there amisse may be reformed at all times And learne if this Scire facias bee sued againste manye and one of them dyeth whether this shal abate the trauerse Monstrans de droit or peticion wheruppon it is sued or elles onelye the Scire facias It semes that nothinge shall abate but the Scire facias because no mentiō is made of the tenaunt neither in a trauerse Monstrans de droit of peticion And of this mater see the booke in M. 7 H. 4. fo ◠Ouster le mayne OVster le main is the iugement that is geuen for hym that tendeth a trauerse or sueth a Mōstrans de droit or peticion for when it appeareth vpon the matter discussed that the kinge hathe no righte nor title to the thinge he seised then iudgement shal bee geeuen in the Chauncerie that the handes bee amoued and thereuppon Amoueas manum shal bee awarded to theschetour whiche conteruailes as muche as if the iudgemente weare geeuen that hee shoulde haue againe his lande as appeareth in 24 E. 3 f. 3◠and this iugement sometime is geuen in the kinges bench and not in the chauncerie that is in case where the parties descende to an issue then for the tryall thereof theye of the chauncerie muste awarde a venire facias returnable in the kings benche at a certaine daye at whiche day notwithstandinge that the shirife returne not the writ yet the Alias venire facias shall not bee awarded out of the chācerie but oute of the kinges bench for there and no where els it is recorded quod vicecomes non misit breue as appeareth in .13 E. 4. f. 8. And when the issu is found for the partie they of the kinges bench shall gaue iugement awarde an ouster le maine without suinge for the same in the chaūcerie as appeareth in 21. H. 7. .29 Liuery P. 10 li. ass and yet the recorde of the issue that was tryed was not sent thether but onelye the transcript thereof but what then the iudgement is to be geuen vpon the verdit which is there of recorde and when bothe courtes bee courtes of the common lawe and the kynges courts theye vse not to remaunde anye thynge to the place from whence it came but to geue iugem̄t there where it is tryed and Sharde sayde that when a recorde comes once into the kynges benche it shall neuer go from thence Also note that sometime there goeth an Ouster le mayne as well to the kinges patentee as to the eschetoure and that is where the kinge hath graunted the thing that hee seised to any other but notwithstanding that there go such wryttes of Amoueas manum bothe to theschetor and to the partie yet the kynge is out of possession as sone as iugement is geuen in the chauncerie not forcing whether any of these wryttes bee awarded or not either to theschetoure or to the partye and thereupon the partie for whom iudgemente is geeuen may entre forth with into the landes and shal bee sayde noe intrudor Assise P. 156. as appeareth in H. 10. E. 3. and the reason of yt is because the iugement tyethe not the kynge to the delyuerye of the possession but onely to leaue hys handes of the possessiō And note that if a Diem clausit come to the eschetor he hy vertue of that wryte beefore he make any enquirie may seise the lande for the kynges beehofe whiche after he hath once seised if after by office noe title bee found for the king then the party that ought to haue agayn the land may sue for the same in the chauncerye where the office is returned and then Amoueas manum shall be awarded for vntill the makynge of a statute at Lincoln Anno .29 E. 1. called the statute De escaetoribus the partie hadde noe remedye in suche case but onelye to sue vnto the kinge himselfe as it appearethe by the sayde statute and nowe that statute geeues an Ouster le maine vna cum exitibus Howbeit this Ouster le mayne maye not bee sued by parcels no more than a liuery and therefore if diuerse writtes or commissions bee awarded into diuers counties to enquire after the death of A. B and in one countie it is founde that hee holdethe nothynge of the kinge but in socage and in the same countie and bye the same ēquest it is foūd that he holdeth of an other by knights seruice yet the lord by knights seruice gettethe noe Ouster le main vntil the other ēquests be also returned in Causa qua sup̄ for if he should then he should haue it for the lands and not for the body and so should haue it by parcelles for the bodie may not be deliuered as long as there is anye enquest to be returned in And the reason of it is beecause that enqueste may finde a tenure of the king by knights seruice in chiefe in which case his highnes ought to haue the whole landes and if it bee but a cōmen tenure by knyghtes seruice yet hys highnesse at the leaste oughte to haue the preferrement of the bodye yea thoughe the lorde of whom it is founde to be holden be the archebyshoppe of Caunt or suche a one against whō the kings prerogatiue will not hold for the landes yet because it holds for the bodies he getteth no Ouster le maine vntil al the offices be returned in for the reason before made as appeareth in 16. E. 3. Liuerie p. 29 Howbeit by fauour and grace of the court tharchebishoppe had his Ouster le maine beefore the other offices retourned And so note howe in tymes past men haue sued Ouster le maine vpon a seisin made for the kynge although the office founde afterward did not entitle his highnes Howbeit at this day it is not so vsed for theschetor will not seise vnlesse there be an office found although he might lawfullye do it by the words of the writ Diem clausit whiche vsage I do nothinge mislike consideringe the great trouble it auoideth that might els ensue to the kinges subiectes And note that in all cases where the king is seised or in possession of the lād by office or any other mater of recorde his highnes
default passed against an Ideot but execucion of the iudgement was stayed because of the kynges possessiō which proues that notwithstanding the kinge haue the possession durynge the Ideots life yet his highnes hathe noe freehold therby but onely a bare custody for the freeholde remaines in the heire And therewythe agrees 17 Edwarde the thirde H. 17. E. 3. 11 But what than this recouerye is not lyke to this alyenacion for by the recouerye the Ideottes heire is not dysherited by thact of his auncestoure yf so bee that the recouerye weare vppon a good title And it appeares in .33 P. 33. H. 6. f Henrye sixte that an Ideot shall not bee receaued to pleade by gardeyne or Procheyne amye but he hym selfe shall appeare in proper persone in euerye accyon broughte agaynste hym and whosoeuer wyll pleade beste for hym shall bee admytted and learne and enquire yf the Ideot bee but tenaunte for terme of lyfe or yeares yf the kynge shall haue hys prerogatiue therein or not beecause the Ideot cannot alien that lande to the disherison of hys heire and yf hee shall howe the lessour shall ponishe the waste doone in the kynges tyme. And learne allso whether the kynge shall haue the goodes of an Ideot as wel as lande thenne laste of all yf one bee founde Ideot whiche is none in deede The manner howe hee shall auoyde this office appeares in the newe Natura breuium folio 233 that is to saye hee that is falslye founde to bee an Ideot eyther by him selfe or his frinds shall come in to the chaūcerye or beefore the chauncelloure of Englande and the kynges counsell and praye to bee examyned of hys ideocye or hee maye sue a writte out of the chauncerye to hym that hathe the keepynge of hym to brynge hym beefore the kynge and hys counsell to be examined and if he be found vpon hys examination to be noe Ideot then by that is thoffice and all the reste of the proces auoyded wythoute anye farther trauerse howebeit where a Scire facias is awarded agaynste the feffee of the Ideot there the feffee appearing vppon the Scire facias maye trauerse the Ideocye as it appeares he dyd in the booke before of .18 Edward the third And note that by a statut made in the .32 of Henry the eight the xlvi chapiter Ideottes and theire landes bee in the surueye of the courte of wardes and the same courte maye let and set theire landes but not to graunt the custody of their bodyes for anye woordes that I can perceaue in the same statute The tenthe chapiter ITem rex prouidebit quando aliquis qui prius habuerit memoriam intellectum non fuerit compos mentis sue sicut quidam sunt per lucida interualla quod terre et tenementa eiusdem saluo custodiantur sine vasto destructione qd ' ipse familia sua de exitibus eorundem viuant sustineantur competenter residuum vltra sustentacionem eorundem rationabiliter custodiatur ad opus ipsorum liberand ' eisdem quando memoriam recuperauerint ita qd ' predicta terre et tenementa infra predictum tempus nullatenus alienentur nec rex aliquid de exitibus percipiat ad opus suum Et si obierit in tali statu tunc illud residuum distribuatur pro anima eiusdem per consilium ordinarij It appearethe bye Bracton in hys fifthe booke amonge thexceptions to the persone of the playnetyfe that it is a good exception to saye that hee that ys demaundaunt or plainetife is of Non sane memorie For these bee hys woordes Competit etiam tenenti exceptio peremptoria ex persona petentis si petens furiosus fuerit vel non sane mentis quod discere nesciat vel quod omnino nullam habeant discretionem tales non multum distant a brutis que ratione carent nec valet quod cum talibus agitur du rante furore Possunt enim quidam aliquando dilucidis gau dere interuallis quidam habent furorem perpetuum quod autem actum fuerit cum talibus tempore quo dilucidis gaudent interuallis ratum erit ac si cum alijs ageretur siue furorem suū simulauerint siue nō acquirere quidem non poterunt in ipso furore vel cum non fuerint sane mentis aliqui qui consentire non possunt nec adquisita alienare vel dare quia alienacioni non magis consentire possuut quam adquitsiioni sed seisinam retinent quia animum mutare non possunt quē acquirendo cum essēt sane mentis habuerunt furor superueniens nichil adimit non maius quam morbus incurabilis sicut lepra secundum quod dicitur quod multa impediunt contrahendo que non dirimunt contractum ita sunt multa que impediunt promotionem que non deiciuntiam promotum Et talibus de necessitate dandus est tutor vel curator So it appearethe by Bracton that in his tyme yt was thought◠expediente that folkes that weare destraughte shoulde haue a tutoure or one that shoulde take the charge of them whyche offyce sens is reuolued vnto the kynge and made parcell of his prerogatiue For as Fitsherbert in hys Natura breuium folio 252. verye well sayethe The kynge ys the protectoure of all hys subiectes and of all theire goodes landes and tenementes and therefore of suche as cannot gouerne them selues nor order theire landes and tenementes hys grace as a father muste take vppon hym to prouyde for them that theye them selues and theire thinges maye bee preserued And beecause that Lunacye or madnes ys not frome the tyme of ones byrthe as Ideocye is M. 3. E. 2. in Fits ti Gard P. 5. butte commeth sometymes bys fytes or courses hys grace therefore can clayme no certayne intereste in the lunatike persone lyke as hee maye doe in the Ideot and therefore it ys ordeyned that his booke f. 27. which nowe this statut hath made clere and without question The twelfthe chapiter ITem habebit escaet ' de terris Normanorū cuiuscūque feo di fuerint saluo seruicio quod pertinet ad capitales dominos feodi illius et hoc similiter intelligendum est si aliqua hereditas descendat alicui nato in partibus transmarinis cuius antecessores fuerunt ad fidem regis Francie de tempore regis Iohannis non ad fidē regis Angliae sicut con tingit de baronia Monumete postmortē Iohannis de Monumeta cuius heredes fuerūt de Britan̄ alibi de feodis aliorū recuperauerit Henricus plures escaetas de terris Normānorū occasione predicta eas contulit tenēdas de capitalibus do minis feodi per seruitia inde debita consueta It Appereth by the Cronicles that king Ihon was the last duke of Normandie that in his time Normandy was lost wherupon king Henry his sonne as it may appeare by the later clause of this chapiter recouered diuers escheates of