Iurors to enquire of riots rout or vnlawfull assembly shall be committed which shall be returned by the Sherife to enquire thereof shall haue lands and tenements within the same shire to the yearely value of xx s. of Charter land or freehold or twentie sixe shillings eight pence of copiehold or of both aboue all charges But in that case by the Statute of Anno 2. H 5. St. 2. H. 5. 8. if they be returned by the Coroners then euery of them shall haue lands and tenements or rents to the yearely value of tenne pounds at the least By the Statute of Anno 1. St. 1. R. 3. 4. R. 3. it was enacted That no officer shall returne in any panell to be taken or put in Iurors in the sherifs Turne or vpon any inquisition or inquirie before the Sherife in his Turne other than such which bee of good name and fame and which haue lands or tenements of freehold within the same countie to the yearly value of xx s̄ at the least or else copyhold lands to the yearely value of xxvj s̄ viij d. at the least aboue all charges By the Statute of An̄ 8. H. 6. Sta. 8. H. 6. 9 it was prouided That euery person which shall be returned to inquire of any forcible entrie into lands Iurors to inquire of forcible entrie or detayning of lands by force shall be a sufficient indifferent person and shall haue lands and tenements to the cléere yearely value of xl s̄ By the Statute of An̄ 1. H. 8. it was established Sta. 1. H. 8. 8. That euery Iuror which is returned before any escheator Iurors returned before Escheators or commissioner to inquire of lands or tenements or some other to his vse shall haue lands or tenements of the yearely value of xl s. aboue all charges in the same shire where the inquirie shall be made St. 11. H. 7. 21. 23. H. 8. 3. 37. H. 8. 5. And by the stat made An̄ 11. H. 7. An̄ 23. H. 8. An̄ 37. H. 8. The Iurors returned vpon an attaint in London or els where shal be of more or greater ability in lands tenements goods or cattels then is before specified 16 The law hauing first vsed al good deuises to cause shirifes vndershirifes Bailifes of liberties coroners al others authorized to return impannel Iuries to be indifferent to returne the said Iuries Iurors without al partiality that they shal be no furtherers maintainors nor assistors to periury subornation or embracery also hauing prouided that all those Iurors which be so returned vpon Enquests to try issues betwéen party party may again one by one be sifted tried examined whether they standing vnsworne be indifferent or not She doth then expect to receiue from those Iurors Veredictū a true tale that is to say a true verdit or presentment of such things as be giuen them in charge according to their euidence But if the same Iurors will decline from truth and make a false presentment contrarie to their euidence then is it not to be termed Veredictum but Periurium and it will be returned to them as Maledictum for by the common Law they being attainted by the verdict of xxiiij other Iurors shall receiue a cursed and villanous iudgement therefore viz. the said Iurors shall loose the fréedom of the Law their wiues children shall be thrust out of their houses Fit Ass 396. 46. Ed. 3. 23. 42. Ed. 3. 26 6. Assi◠p. 7. 30. Ass p. 24 40. Ass p. 20. 41. Ass p. 18. Li. Int. fo 92 The iudgement in an at the common law of a Iury proued periured their houses shall be pulled downe to the ground their orchards gardens shall be supplanted their trées shall be digged vp by the roots their meadowes shall be eyred vp All the goods cattels which they had at the time of the Attaint brought or at any time after shal be forfeited to the King The King shall haue all the profits of their lands during their liues And they shall be committed to perpetuall prison Which iudgement was deuised many yeres put in execution to the intent it might be knowen how much the common Law did detest and punish wilfull Periurie and falshood in those who shée trusted in place of justice and from whom shée accompted to receiue truth 17 But sithence by the Statute of An̄ 11. H. 7. and An̄ 23. H. 8. the said iudgement against a petit Iurie attainted is in some cases altered and qualified Sta. 11. H. 7. 21. for by the Statute of 11. H. 7. it is ordained That the party grieued by any false verdict giuen in any of the Courts of the Citie of London shall and may sue Attaint by Bill in the Hustings of London The iudgement in Attaint in London holden for common Pleas before the Maior Aldermen of the same Citie And if the graund Iurie sworne in the same Attaint find that the petit Iurie haue giuen an vntrue verdict then the iudgement shal be against the defendant as is vsed in attaint sued by writ at the common Law And the iudgement shall be against the petit Iurie that euery of them shall loose xx li. or more by the discretion of the Maior and Aldermen of the said Citie kéeping the Hustings to such vses as other issues and penalties béen forfeited in any action or plaint commenced before the Mayor and Aldermen of the said citie and his bodie to bee imprisoned there to remaine without baile or mainprise vj. moneths or lesse by the discretion of the Mayor and Aldermen and to be disabled for euer to be sworn in any Iurie before any temporall Iudge But the iudgement in such Attaint shall not extend to any lands or tenements St. 23. H. 8. 3 An. 13. El. 25. ne to other punishment of the petit Iurie And by the before mentioned Statute of Anno 23. H. 8. it was enacted That vpon euery vntrue verdit giuen betwéene partie and partie in any suit plaint or demaund before any Iustices or Iudges of Record where the thing in demaund and verdict thereupon giuen extendeth to the value of fourtie pounds An attaint where the thing eetendeth to xl l. and concerneth not the ieopardie of mans life the partie grieued by the same verdict shall haue a writ of Attaint against euery person so giuing an vntrue verdict and euery of them and against the partie which shall haue iudgement vpon the same verdict And euery one that shall passe in the same Attaint shall haue lands and tenements to the value of twentie markes by yeare of fréehold out of auncient demesne And if the graund Iurie find that the petit Iurie gaue an vntrue verdict then euery of the said petit Iurie shall forfeit twentie pounds whereof one halfe shall be to the King and the other halfe to him that sueth to be leuied by Capias ad satisfaciendum fieri facias
partie most interessed or grieued by the same murder or felonie is to prosecute sute against the saide offendor by Appeale and thereby to séeke reuenge against him for the wrong done to himselfe or his auncestor or else the offendor is to be indited at the Kings sute whose peace hée hath broken and whose lawe he hath offended and who hath a speciall interest in all manner of treasons and felonies to punish them to wéede them out of his kingdomes and dominions and to defend his subiects from them And therefore I am to expresse in this Chapter and the next what an Appeale of felonie is and what an Indictment is by whom for whom and against whom and in what cases they are to be begunne prosecuted and maintained what defences or pleas are to be made or pleaded by the supposed offendors vnto them and what counterpleas may be obiected against the same plees Appeale of death An Appeale is a plaint of one person made against another with an intent to attaint him of felonie by a course of Lawe prouided therefore which appeale may be brought against a woman couert without her husband against an infant and all others that can commit felonie and a woman may haue an appeale for the death of her husband Appeale by a woman of the death of her husband because the husband and wife be one flesh but of the death of none other by force of the Statute of Magna Charta which hath ordained That none shall be taken St. 9. H. 3.34 or imprisoned by the appeale of any woman for the death of any other than of her husband And therefore if a woman doe bring an appeale of the death of her father and the Defendant would admit it yet the Court will abate it 10. Ed. 4.7 Plow Com. fol. 85. because it is contrary to the said Statute Appellāt conueieth his title by a woman 2 As a woman shall haue no Appeale of the death of any other but of her husband No more shall any cosin of him that was slaine who maketh his conueiance in kinred by a woman haue any appeale of the death of him that is killed notwithstanding he be issue male and not female Appellant conueyeth his title by a woman and notwithstanding that the woman by whom he maketh his conueiance died in the life time of him 20. H. 6.46 Fi. Cor. 385 17. Ed. 4.1 of whose death the appeale is commenced As if a man haue issue one onely daughter who marrieth a husband hath issue a sonne and dieth and after the father of that woman is slaine In this case the sonne of the woman shall not haue an appeale of the death of his saide grandfather though hee be his next heire at the common lawe and inheritable to his land because his mother was foreclosed of it by the foresaid statute of Magna Charta and so likewise he which hath none other title thereunto but that which he deriueth from his saide mother Fi. Cor. 384 17. Ed. 4.1 But if he that was slaine haue none heire on the fathers side then the vncle or next of kinne on the mothers side shall haue the appeale yea though he doe conuey his title thereunto by a woman 3 By the auntient lawe of this Realme a woman could not haue an appeale of the death of her husband vnlesse her said husband were slaine betwéene her armes within the yéere and day before Neither could shée or any other haue an appeale vnlesse she or he were present at the death of the partie slaine and sée it But that Lawe was altered by the Statute of Gloucester St. 6. Ed. 1.9 whereby it was ordained That no Appeale shall be abated so soone as they haue béene heeretofore But if the appellant in an appeale doe declare the déede the yeare the day the houre The declaration in appeale of murder the time of the King and the Towne where the déede was done and with what weapon hée was slaine the appeale shall stand in effect And the appeale shall not be abated for default of fresh sute where a man doth sue within the yeare and the day after the déede done 50. Ed. 3.15 28. Ed. 3.91 27. Ass p. 3. 4 If a woman will haue an appeale of the death of her husband The woman must be the deads lawfull wife it is requisite that shée be not onely his wife indéede viz. de facto but also lawfully and in right viz. de iure for neuer accoupled in lawfull marriage is a good plea to barre her of her appeale And it shall be tried by the Bishop whether she be his lawfull wife or not 20. H. 6.46 12. El. Dyer 296. 5 It is requisite that a woman who will maintaine an appeale of the death of her husband shall liue sole and vnmarried The woman must liue vnmarried for by her second marriage her appeale is extinct though her second husband doe die within a yeare and day after the death of her first husband And if a woman doe bring an appeale of the death of her husband and hanging the Writ shée doth marry another husband her appeale shall abate for euer 11. H. 4.46 6 If a woman doe bring an appeale of the death of her husband A woman marrieth betweene iudgemēt executiō and doe pursue the Defendant vntill Iudgement And then after iudgement and before execution shée marrieth an other husband In this case shée shall not obtaine execution viz. the Defendant shall not be hanged at her sute for shée hath willingly lost the name of her first husband before shée hath obtained the effect of her sute and the reuenge which shée brought her appeale for Where appeale lieth but no dower 7 There be some Cases where a woman shall haue an appeale of the death of her husband though she be not endowable of the possession of the same husband As where her husband is attainted of treason 27. As p. 41 35. H. 6.58 and after one doth kill him his wife shall haue an appeale and yet she shall haue no dower And in like sort if a woman doe elope from her husband and after one doth kill him she may maintaine an appeale against the offendour but no writ of dower against his heire And many other Cases there be where a man was so seised of his lands that his wife is not thereof endowable by the Lawe And yet if hee be slaine she may maintaine an appeale against the manqueller Where the wife may haue appeale none other shall 8 Where a woman may haue an appeale of the death of her husband 20. H. 6.47 Kel fol. 120 none other shall haue it during her life nor after her death though the wife doe die within the yeare and day after the death of her husband and before the appeale commenced for that the appeale was once out of the blood it shall not be restored to his
21. H. 7. 39. As In what cases any pâ—rson may deâ—end himselfe and his by force if theeues or robbers do come to a mans house to rob or murther him he may defend his house by force and if he or his seruants do kill any of them they shall receiue no hurt thereby And if a man being in his house doe heare that another will come to his house to beat him he may lawfully assemble his neighbors and friends to assist and aid him in the defence of his person for his house is his castle and place of protection defence where he must dwell But if a man be threatened â—hat if he come to such a Market or Fayre or to such a place that then he shall be beaten in this case he may not assemble his neighbours and friends to go thither in safegard of his person for there is no necessitie that he should go thither seeing it would rather be a meane to seeke a quarrell then to eschew it but in that case he may take his remedy by surety of peace 16. Ed. 4. 17. 9. E. 4. 28. 19. H. 6. 31. 6. H. 7. 1. And if there be an atteÌ„pt made to maihem wound or beat a man his wife father mother or any of his children within age or to disseise him of his land or to dispossesse him of his goods or to disturbe him of his high way or to turne an ancient watercourse from his mill he may lawfully vse force to resist it 34 As the law hath prouided by the before rehearsed statute of 15. R. 2. St. 15. R. 2. 2. that wheÌ„ any forcible entry shal be made into any benefices or offices of the church a Iustice of peace shall take the power of the county and commit the offendors to the gaole So hath it further deuised that if there be debate betwéene two persons for one church and one of them doth enter into the church with a great power of lay men and holdeth out the other by force and armes then he which is holden out The writ of Vi laica remouenda to remoue force shall haue a writ of Vi laica remouenda directed to the Shirife commaunding him that he shal remoue the power which is within the church and the shirife shal be further commaunded that if he doe find any that doe resist he shall take with him the power of the county and attach the bodies of all the resisters and commit them to prison so that he may haue their bodies before the King at a certaine day to answer for their contempt Fitz. Na. B. 55. But by this writ the Shirife ought not to remoue the Incumbent who is in possession of the church be he in possession by right or wrong but only to remoue the force and to suffer the Incumbent to inioy his possession for if he do remoue the Incumbent the same Incumbent shall haue a writ to the Shirife to restore him to it againe Where force shal be remoued for the K. incumbent where not 35 If the King do bring a Quare impedit against the disturber and the Incumbent and the Kings title is found for him Br. force 20 whereupon his clarke is instituted by writ and after the first Incumbent doth enter by force great number of people and doth take the profits the Kings Incumbent shall not haue the Kings writ to the Shirife to remoue the force for that when the iudgemeÌ„t giuen by the court is executed the court hath no more power to deale in that cause But if the defendant had disturbed the Bishop to admit the Kings Incumbent then he should haue had such a writ ⧠Forgerie 1 HAuing vndertaken to write of the great and generall maladies of the Realme and the chiefe impediments of the iustice and peace of the kingdome I shall not farre digresse from my theame by treating of Forgerie Periury Maintenance Deceit Extortion and Oppression wherein though a man be not assaulted by the rapier and dagger pike-staffe or bilbow-blade as he is in a fray forcible entrie or riot yet a forged déed that conueyeth his land from him a false othe which depriueth him of his lease or vnlawfull mantenance that wresteth his credit or goods from him do longer disturbe the peace of his mind stick in his stomacke and infixeth a déeper and more durable impression of sorrow into his heart than a boxe on the eare a dust in the necke or a blow with a cudgell giuen on the sodaine will doe For the griefe of these later stripes is short and doe weare out of mans mind by little and little as his choller ceaseth and his hot bloud cooleth but the discontent and the wants which he receiueth of the former blowes doe continue with him and yéeld him most dislike when he is most patient and best aduised And therefore the wisedome of this Realme hath from age to age taken great care by lawes and statutes to represse them and to inflict vpon the offendors in euerie of them penalties correspondent to their deserts Our lawes doe chastise those that breake the peace by frayes assaults batteries riots or routs with imprisonment of their bodies vntill their hot blouds be cooled and their distemperat humors be qualified but they doe impose sharper and more durable punishments vpon such as doe forge déeds commit or procure periurie Forgerie periurie maintenance do ten 5 to the breach of the peace or bee maintainers of other mens suits or quarels accounting these last offences to tend more and for a longer time to the breach or blemish of the peace or hinderance of the iustice of the Realme than the former doe As hee that committeth forgerie in some cases shall bée set vpon the pillorie loose his eares haue his nostrels slit and pay to the partie grieued his double costs and dammages And in some other cases shall be hanged as a felon He that committeth periurie shall in some cases be one yeare imprisoned be set vpon the pillorie and neuer after be allowed as a witnesse And hee that maintaineth other mens suites shall in some cases be thrée yeres imprisoned and further punished at the kings pleasure And in some other cases sustaine other disgraces And therefore the preamble of the statute of anno 1. St. 1. H. 5. 3. H. 5. doth truely informe vs that forged déeds do trouble and change the lands of good people intending to be in peace And the statute of anno 32. St. 32. H. 8. 9 H. 8. doth teach vs that the suborning of witnesse for to maintain any matter or cause is to the disturbaÌ„ce or hinderance of iustice The enormity of Forgerie 2 The forging of false sealed Déeds Euidences or Writings or of Court Rols or of the will of any person or of any Obligation Bill obligatorie Release or other discharge or the pronouncing publishing or giuing in euidence of the same wherby any person shal be molested troubled charged
dispose or otherwise imploy or suffer or cause to be paid disposed or imploied to any of the foresaid vses or to any of the like vses aboue the terme of 20. yeares next after the first making and beginning of any such vses shal be vtterly voide But for the preuenting of collusion and fraud which might bee deuised for the further establishing or corroboration of such vses by the said Statute of an 23. H. 8. Collaterall conueyaunces to defraud the assurance to Churches it was moreouer prouided That if any person or persons in defraud of the said Statute doth bind or ordaine any of their heirs or successors or any other persons that they shall suffer such vses intents or purposes to continue contrarie to the said statute vpon paine of losse of any other lands or of any other thing or doe deuise by any colour craft or meanes any thing to make such vses declared contrarie to the meaning of the said Act to continue for any longer time then is aboue limitted for the same Then euerie such penaltie craft colour and euery other thing that is made or deuised in defraud of the said act shal be voide for the said Statute shal be interpreted as beneficiallie as may be to the destruction or vtter auoyding of the vses aboue remembred and of all other like other then such as are before expressed Co. lib. 1. 26 Notwithstanding the foresaid Statute of An̄ 23. H. 8. To what vses lands may be giuen it is lawfull for any person at this day to giue his lands tenements or hereditaments to any person or persons to his or their heirs for to find a preacher for the maintenāce of a Schoole for the reliefe of maihemed souldiers for the sustentation of poore people for the reparation of churches highwayes bridges cawseis for the discharge of the poore inhabitants of a towne of cōmon charges for to make a stock for poore labourers in husbandrie poore apprentices for the mariage of poore maids or for such other charitable vses for the said stat was made onely to restraine the assuring of lands to superstitious vses and not to charitable vses And in this case it shal be expedient that the feoffor which doth assure his land to any of the vses aforesaid doe reserue to himselfe some annuall rent or take some money of the feoffées at the first for then the feoffement or assurance shal be good to the feoffées and their heires though the vse be vnlawfull And it appeareth by the stat made an 43. Stat. 43. El. 4. El. that they be accounted good and charitable vses no superstitious vses to giue lands tenements rents annuities profits hereditaments goods chattels money and stocks of money for the reliefe of aged impotent and poore people or for the maintenance of sicke and maihemed souldiers mariners schooles of learning frée schooles schollers in Vniuersities or for repaire of bridges ports hauens cawseys churches sea-bāks high waies or for education or preferment of orphans or for or toward reliefe stocke or maintenance for houses of correction or for mariage of poore maids or for supportation helpe ayd of yong trades-men handicrafts-men and persons decaied or for reliefe or redemption of prisoners or captiues or for aid or ease of any poore inhabitants concerning paiment of fifteens setting out of souldiers and other taxes For the said Stat. of 43. El. doth giue authoritie to the L. Chauncelor the L. Kéeper c. to the Chauncelor of the Duchie to award commissions from time to time into all or any parts of this Realme to certaine persons to enquire of al singular such gifts assignments appointments and of the abuses breaches of the truce negligences misimployments not imploying concealing defrauding misconuerting or misgouernment of any lands tenements rents c. goods chattels money c. heretofore giuen or assigned or which hereafter shal be giuen limited or assigned to or for any the charitable or godly vses before rehearsed And after such enquiry hearing and examining thereof to set downe such orders iudgements and decrées as the same lands tenements rents goods money c. may be duly and faithfully imployed to and for such of the charitable vses and intents aforesaid respectiuely for which they were giuen or appointed by the donors and founders thereof 26 Because when tenants for terme of life tenants in dower or by the curtesie of England or tenants after possibilitie of issue extinct were impleaded they would often be of couin with the demandants that the tenemēts demanded should be recouered against them they would not pray in ayde nor vouch to warrantie them in the reuersiō but plead in chiefe such a plea wherby they knew the tenements should be lost for the preuention and eschewing of which couin St. 13. R. 2. 16. by a stat made an 13. R. 2. it was ordained That if any such tenant be impleaded and he in the reuersion come into the Court and prayeth to be receiued to defend his right at the day that the tenant doth plead to the action or before he shal be receiued to plead in chiefe to the action without taking delay by voucher ayd-prayer nonage or other delay whatsoeuer Couin by a particular tenant to defraud him in the reuersion so that after such receipt he shal haue no delay by protection essoine of the Kings seruice or common Essoine but the sute shal be hastened as much as it may be by the lawe And dayes of grace shal be giuen by discretion of the Iudges betwixt the demaundant and him which is receiued and not the common daies giuen in pleas of land except the demaundant will thereunto assent to the intent the demaundant shal not be too much delaied which must plead with two aduersaries And he in the Reuersion which praieth to be receiued shall finde sureties for the issues of the Land aswel where the receite is counter-pleaded as where it is grauted Stat. West 2. 13. Ed. 1. 3 And by the Statute of Westminster 2 it was established That if by default or yeelding of such tenant in dower or c. iudgement shal be giuen then the heyres or they which haue the reuersion shal recouer after the death of such tenants by a writ of Entrie ad communem legem The wiues receit vpon the husbands default And by the same Statute of Westminster 2. it is also ordained That if in an Action brought against the husband and the wife of lands which bee the right of the wife the husband will absent himselfe and will not defend his wiues right or will against his wiues consent yeeld the land If the wife wil come before iudgement and be ready to answere to the demaundant and to defend her right she shal be thereunto admitted And for the further auoiding of Couin in Recoueries suffred by particular tenants by the Statute of Anno 14. Eliz. it was enacted Stat. 14. El. 8.
writeth That he which is appelled of the déed doth come and defend all manner of felony and that the peace of the king is not broken whatsoeuer is against the K. peace and the death whatsoeuer is obiected against him and that he doth put himselfe vpon the countrey of good and euill that he is not guilty thereof if he do chuse the country Or that he is ready to defend himselfe by his body against the appellant as the kings court shall consider for if he will simply say that he will defend himselfe as the kings court shall consider vnlesse he will say more he shal not be defended for the kings court must not instruct him in what manner he ought to defend himselfe and if he doe say that he is ready to defend himselfe either by his body or by the countrey as the kings court shall consider he séemeth thereby to take from himselfe election And the kings court ought not to compell him to the one more then to the other nor to inforce him how he shall defend himselfe séeing he hath frée choice and therefore he must hold him to one of them But if he make his election to be tried by the countrey it shall not be in his choice what countrey he will take Fi. Cor. 121 83 A writ of Appeale shall abate for false Latine or for lacke of forme Pleas to the writ in appeal as in a writ of Appeale this word Habeas did want and therfore the appeale abated without amendment In an appeale brought against a principall and accessorie of the death of A. B. of C. in the County of D. the accessory pleaded 18. El. Dyer 348. that there was no such A. B. at the time of the writ brought neither was there euer any such as the writ supposeth and demaunded iudgement of the writ and this was adiudged a good plea in abatement of the writ if there were no such A. B. in the said County of D. though there was one at that time of the name of A. B. in another County Or if the said A. B. dyed before this appeale commenced 84 In an appeale of Rape the writ shall be The forme of the writ of appeale of Rape ad respondendum appellanti secundum formam statuti quare vxorem suam rapuit and not vnde eum appellat secundum formam statuti because the statute doth not giue the appeale for the appeale was at the common Law but hée ought to answere according to the Statute to this intent that he shall not wage battaile for the Statute sayth St. 6. R. 2. 6 Ad duellum vadiandum minimè recipiatur And though in his writ of appeale of Rape he doth not vse these words felonicè Rapuit yet is the writ good notwithstanding that for in this word Rapuit felony is implied If in an appeale of Rape the writ hath not this word Rapuit 3. Eli. Dyer 202. it shal abate Rapuit materiall although it hath words amounting to the same effect as carnaliter cognouit such like S. Felony by Statute 4. 7. H. 7. 6 Co. li. 4. 47. 85 One shall not haue diuers writs of Appeale Not two appeales for one offēce against one person depending at one time against another of one felony But yet before the writ be abated it is requisite that the court be satisfied that both those writs were pursued by the plaintife which must be proued by some act that the plaintife hath done as if he hath appeared to them both and counted vpon them for notwithstanding that one of them hath bin deliuered of record to the shirife to serue yet séeing that may bée done by a stranger as well as by the plaintife it shall be no conclusion to the plaintife to say that the said writ so deliuered of record was not his sute And the like law is 4. H. 6. 15. if an appeale by bill be commenced in the county before the shirife and the Coroners and is remoued out of the county into a court of record and there depending the plaintife doth purchase another appeale by writ this appeale by writ shal abate But it is otherwise if the appeal by writ be purchased before the appeale by bill remoued out of the county 10. H. 4. 4. for there the Court ought to send for the appeale in the county without abating the appeale which is cōmenced by writ and this is more worthy and of an higher nature then is the appeale by bill commenced in the county which is but as a plaint vntill after it be remoued for it is a common course in the K. Bench when an appeale is depending there by Writ to send for the appeale cōmenced by bill in the county and yet if the appellant be nonsute in his appeale depending in the county his Writ shall abate 86 In an appeale brought against two Pleading of one in appeale against two one of them may plead 21. E. 4. 71. 7. H. 4. 27. that his companion that was named with him in the Writ died at such a place before the Writ purchased Or that there was none such in Rerum natura as the other which was named with him in the Writ the day of the Writ purchased for if he that doth appeare should not plead these pleas there is none to plead them and in the foresaid cases and in all other cases of appeales against seuerall persons if the appeale doth abate against one of them 9. H. 4. 2. it doth abate against them all 87 In an appeale if the def do plead that the plaintife is misnamed The plaintife misnamed 9. H. 5 1 if the plaintife will confesse it the couin shal be examined viz. whether he doth it by couin betwéene him and the plaintife or not But if it be proued true that the plaintife is misnamed the appeale shall abate 88 In an appeale the defendant may haue two or thrée pleas to the writ Two or thrée pleas to the writ as the tenant shal haue in an assise But he must take care that one of them be not contrary to the other 89 To make a barre in appeale Barres in appeale is to run ouer the foresaid title to whom appeales be giuen and according thereunto to frame his plea in barre for if an appeale be commenced by one that hath no title to maintaine it that is good matter to plead in barre against the appellant As if a woman doe bring an appeale of the death of her husband it is a good plea to plead 28. E. 3. 9. 27. Ass p. 3 50. Ed. 3. 15◠that after the death of her husband she hath married another husband Appeale of death brought by the wife Or that shee was neuer accoupled in lawfull marriage to him of whose death shee doth bring the appeale 90 If an appeale of death be brought by the heire Barres in appeale of death
And Stewards and Bailifes of great Lords who by their seigniory office or power doe vndertake to maintaine or vphold other quarrels or suites then such which concerne their Lords or themselues A conspiracie must be by more then one 7 The foresaid statute doth define conspirators to be those St. 33. E. 1. which bind themselues by oath c. By which words it doth appeare that a conspiracy cannot be committed by one person alone but by two at the least and therefore this Writ of Conspiracy will not be maintained against one alone though it were begun against diuers for as soone as it shal appear 28. Ass p. 12 22. Ass p. 77 11. H. 4. 162 that all but one be discharged therof by their discharge that one shal also be discharged But this discharge ought to be such a one as may be a discharge to all intents as acquitall of all by verdict sauing one is an acquitall of that one also And so it is if al but one be discharged by matter in Law as if they plead that they were indictors or such like matter in Law which will discharge them for in those cases they be acquit of the conspiracie to all intents But if in a writ of Conspiracie sued against two 14. H. 6. 25. one of them is attainted and the other doth barre the plaintife by a demurrer in law yet that shall not discharge the other which is attainted Where one only charged in Conspiracy if the barre both not containe matter to proue that he did not conspire or could not conspire And so it is if in a writ of Conspiracy brought against two the one doth appeare plead and his plea is found against him in this case iudgement may be giuen against him 24. E. 3. 34. though the other be not attainted and yet in that case some doe affirme 27. E. 3. 80. that in a writ of Conspiracy against two one of thē shall not answere vntill his companion doth appeare for the inconueniency which may ensue viz. that the one may be foūd guilty and the other after may be acquit of the same conspiracy But if he that did first appear wil plead without his companion though the law doth not inforce him thereunto and that the verdict do passe against him and he found guilty of the conspiracy iudgement shal be giuen against him as is aforesaid though after his companion be acquited of the same conspiracy Nam volenti non fit iniuria 8 As a writ of Conspiracy will not lie against one person only no more wil it be maintained against two who do represent but one person No writ of Conspiracy against the husband and wife as the husband and wife 40. Ed. 3. 19. 38. E. 3. 3. for a writ of Conspiracy is not to be brought against them séeing the husband and wife by common intendment ought to haue but one will which will of the wiues is or should be subiect to the will of the husband So that when they conferre and speake together all shall be intended the spéech and act of the husband and nothing of the wife But it is otherwise if she do any act alone without her husband as if she doe commit Treason or Felony c. But a writ of Conspiracy will lye against the husband Fi. N.B. 116. L. his wife and a third person 9 The common forme of the writ of Conspiracy in the Register is this The forme of the writ of Conspiracie viz. Register fo 134. Rex vice comiti N. Salutem c. Si A. fecerit c. tunc pone c. B. C. quod sintcoram nobis c. ostensuri quare conspiratione inter eos apud M. praehabita praefatum A. de quodam equo furtiue apud R. capto abducto indictari ipsum ea occasione capi in prisona nostra N. quousque in curia nostra coram dilectis fidelibus nostris I. S. iusticiarijs nostris ad Gaolam nostram N. deliberandam assignatis secundum legem consuetudinem regni nostri acquietauts fuisset detineri falso malitiose procurauerunt ad graue damnum ipsius A. contra formam ordinationis in huiusmodi casu prouisae Et habeas ibi nomina plegiorum hoc breue Teste c. Which foresaid writ is founded vpon a verdict but if it be a writ of Conspiracy founded vpon the plaintifes Nonsute in an appeale then the words of the writ be these viz. Quousque idem A. per considerationem curiae nostrae inde quietus recessit Though in the Writ of Conspiracie it is not alledged 35. H. 6. 46 that the place where the Conspiracie was deuised was within the Countie and within the iurisdiction of those Iustices before whom the plaintife was acquit yet the writ is good notwithstanding the omission of that allegation for it shal be intended to be made within the same county vntil the contrarie shal be shewed But it must néeds be expressed in the writ before which Iust the acquitall of the pl. was 3. H. 6. 52. but not the manner of the acquitall nor how hée was acquited And neither in this writ nor in other writs of Conspiracie mentioned in the Register all the indictment néed not to be rehearsed 19. H. 6. 34. 47. Ed. 3. 16. but briefly the substance thereof and it is sufficiently in forme if the writ of Conspiracie doe agrée with the indictment which it ought to do 10 In the Register there is a writ of Conspiracie for the Accessorie A writ of conspiracy for the accessorie in felonie when hée is acquit by verdict and another writ for him vpon the acquital of the Principall if his life were put in ieopardie by the same Enquest that acquited the principall but yet these two writs doe differ in forme for the first is Quousque coram praefatis Iusticiarijs nostris inde secundum legem consuetudinem nostram acquietatus fuit And the other is Quousque principal ' secundum legem c. acquietatus fuisset idem accessorius quietus recessit And it is sufficient 33. H. 6. 1. if in the writ brought by the accessorie hee make mention of his owne imprisonment and not of the principals And this forme of quietus recessit is vsed also when a writ of Conspiracie is brought vpon an acquitall in an Appeale at the Kings suit after the parties nonsuit 22. H. 6. 49. In a writ of Conspiracie the plaintife may suppose that the conspiracie was made in two Townes Conspiracy in two townes because in one day the Conspirators may meete in seuerall Townes Barres in conspiracie 11 In a writ of Conspiracie it is a good plea for the defendants to plead in barre of the Action a concord betwéene the plaintife and them And so it is to plead any matter which will proue the acquitall of the plaintife erronious 21. H.
6. 28 for then was not the plaintife lawfully acquit according to the Statute of Westminst 2. Iudgement in conspiracie 12 When any is conuict in a writ of Conspiracie at the suit of the partie the iudgement is none other but that the plaintife shall recouer his damages 43. E. 3. 33. and that the defendants shall bée taken But if one be indicted and conuicted of conspiracie at the Kings suit the iudgement is more grieuous for then the iudgement is That they shall loose their frée law to the intent 27. As p. 59 46. As p. 11. 24. E. 3. 34. that they shall not after that time be put in Iuries or Assises nor otherwise produced as witnesses to testifie truth and if they haue to do in the Kings Court they shall make their Attourney to sue for them and that they shall not approach within twelue miles of the Kings Court and that their lands goods and cattels shall bée seised into the Kings hand and their houses wasted and their wiues and children thrust out of doores and their trées pulled vp by the rootes and their bodies taken and imprisoned And this is tearmed a villainous iudgement because it bringeth villanie and shame to him that receiueth it 13 And because that wicked offence of conspiracie should bee inquired of and punished as well by indictment as by writ there was a Statute made Anno 28. Ed. 1. called Articuli super chartas whereby it was ordayned St. 28. E. 1. That in right of Conspirators false informers and imbracers of Enquests Assises and Iuries the King hath prouided remedie by a Writ out of the Chauncery And from henceforth the King will that his Iustices of the one Bench the other and the Iust assigned to take Assises Inquirie of Conspiracies by Iustices when they come into the countrey to do their office shall make enquiry thereof at any mans plaint without writ Register fo 118. and shall without delay do right to the plaintifes And the Iustices may be commaunded by a writ directed vnto them out of the Chancery to execute the same statute although the statute of it selfe is a sufficient warrant and authoritie for them so to doe which remedie mentioned in the foresaid statute was intended to be ordained by another statute called the statute of Conspirators St. 20. E. 1. made Anno 20. Edw. 1. at Berwike vpon Tweed which doth prouide a writ of Conspiracie against conspirators maintainers of false quarels and champertors and expresseth the forme of that writ St. 28. Ed. 1 14 But because the foresayd Statute of Articuli super chartas did prouide onely a remedie at the plaint of the partie and did not giue the Iustices in the sayd Statute mentioned power to enquire of heare and determine conspiracies at the suit of the King neither did it giue authoritie to the said Iustices to adiourne the suit if for shortnesse of time it could not be determined in the countrey St. 4. E. 3. 11. Therefore by a statute made Anno 4. Edw. 3. Inquirie of conspirators at K. or parties suit the same enormities were redressed by these words viz. Where in times past diuers people of the Realme as well great as other haue made alliances confederacies and conspiracies to maintaine parties pleas and quarels whereby diuers haue béene wrongfully disherited and some ransomed and destroyed and some for feare beeing maymed and beaten durst not sue for their right nor complaine nor the Iurors of Enquests giue their verdicts to the great hurt of the people and slaunder of the Law and common right Therefore it is agréed that the Iustices of the one Bench and of the other and the Iustices assigned to take Assises whensoeuer they come to hold their Sessions to take Enquests vpon Nisi prius shall enquire heare and determine as well at the Kings suit as at the suit of the partie of such maintainers bearers and conspirators and also of champertors and of all other things contained in the sayd Article as well as Iustices in Eire should doe if they were in the same Countie And that which cannot be determined before the Iustices of the one Bench or of the other vpon the Nisi prius for shortnesse of time shall be adiourned into the places whereof they be Iustices and there shall be determined according to right and reason 15 Notwithstanding the foresaid Statutes there were such deuises and practises to execute malice and reuenge and desire to put others in perill of their liues lands and goods that some would frame indictments or appeales against others of the K. good and obedient subiects of Treason Felony or trespas in seuerall forrein counties liberties and franchises where the said persons did neuer dwel nor conuerse and there they were pursued to the Exigent and sometime outlawed before that they could know of it For the remedie whereof there was a stat St. 8. H. 6. 10 made Anno 8. H. 6. wherein amongst other things it was enacted That if any person shall be indicted or appealed of felony Procurers of an indictment or appeale in a forrein county treason or trespas in a forein county he shal in an action vpon the case recouer treble damages against euery procurer of such indictment or appeale after hee is duly acquited by verdict And the like proces shal be in the same as in an action of Trespas vi armis S. Appeales 61. An offence supposed to be in a place where there is none such 16 Because diuers people vpon malice enuie and desire of reuenge did ofttime cause the K. liege people to be appealed or indicted in diuers counties of Treasons or Felonies supposing by the said appeals or indictments that the said Treasons or Felonies were committed in one certaine place whereas there is no such place within the said county where the said indictmēt is found nor any such place in the county as is declared by the said Appeale Therefore by the stat made anno 7. H. 5. anno 9. H. 5. anno 18. H. 6. it was ordained St. 9. H. 5. 1. St. 18. H. 6. 12. That the said Appeals and indictments and the proces thereupon shal be void and adiudged of no force And that the said Appellées and Indictées may haue their writs of Conspiracie against their indictors procurors and conspirators and recouer their damages And that the indictors procurors and conspirators shal be punished by imprisonment fine and ransome for the K. aduantage by the Iustices discretion ⧠The Coroner and his Authoritie and dutie in Felonies c. 1 A Coroner is an antient officer of trust in this realm The Coroners Office ordained to be a principall preseruer and kéeper of the peace to make record of the pleas of the Crown and of his owne view and of abiurations and of outlawries and of Appeales and accusations of felons made before him and of nonsuits of plaintifes in Appeales and of all
or any of them in their Turnes or Lawdayes And as of other felonies 3. H. 7. 5. 5. E. 6. D. 69 9. H. 4. 1. so I. of peace may inquire of murder Murder because wilfull murder is felony But Iust of peace cannot inquire of treason Treason for neither the before mentioned stat of 18. E. 3. nor the words of their commission do authorise them so to do The Lord of a Mannor Iudge in felonie 13 There be some that haue libertie of Soc and Sac Tol and Them Bracton de Corona cap. 35. 2. R. 3. 10. Infangthéefe and Outfangthéefe these in their own courts may giue iudgement of him who is found within their liberty possessed of any manifest theft as if he be hand hauing and back bearing and that Sathaber viz. he whose the goods be do pursue him Kel fol. 150 for vnlesse he be in possession of the goods though another doth pursue him as a théefe yet that Court Hundred or Wapentake cannot hold plea of such a theft nor make inquirie by the Countrey whether such a man which was not possessed of the goods bee culpable or not Neither shall any wage battell without possession It is called Infangtheefe Infangthéefe where a Theefe is taken possessed of goods stolne within any such Manor or Libertie who is commorant and dwelling within the same libertie and one of the said Lords owne people Outfangthéefe Outfangthéef is a théefe that is a stranger comming from some other place into the Mannor of the Lord who hath such a libertie and is there taken with the manoure And yet he that hath such a libertie cannot fetch one of his owne people who hath committed larcenie out of his libertie and bring him into his libertie and iudge him there according to his libertie for euery person must receiue the punishment of the law where he hath offended the law But he may giue iudgement as well against his own people as against strangers committing larcenie that be taken within his libertie 46. Ed. 3. 15 14. H. 4. 15 And in this libertie of Infangthéefe and Outfangthéefe and in waife and stray and wreck of the sea a man may prescribe but so he cannot do in goods of felons and fugitiues for they do belong to the Crowne and cannot passe without the Kings graunt Fitz. Prescription 65 14 The custome of some countrey is such A felon first executed and then iudged that if one hath committed burglarie or other felonie and he be pursued by huy and cry from towne to town and so taken flying he must be beheaded in the presence of the inhabitants of foure townes and so by the vsage of that countrey he is accounted a felon And this must be recorded in the Coroners roll and after the Coroner must present it before the Iustices and they will adiudge him a felon And so he must be first put to death and after iudged a felon FINIS ⧠The generall Titles of this Booke 1MEnace Assault Batterie Jmprisonment Maiheming 2 Riots Routs vnlawfull and rebellious Assemblies 3 Force and Forcible Entries and Forcible detaining of possessions 4 Forgerie 5 Periurie and Subornation of Witnesse 6 Maintenance Champertie Embracerie 7 Deceit Couin Collusion Fraud 8 Extortion Exaction 9 Oppression 10 Treasons 11 Homicides 12 Felonies by the common Law 13 Felonies by Statute 14 Principall and Accessorie 15 Breaking of Prison and Rescous 16 Escapes of Felons 17 Pursute by Huy and Cry 18 Appeales of Felony 19 Jndictments 20 Mainprise and Bayle 21 Confession of the offence 22 Approuer 23 Sanctuarie and Abiuration 24 Pleading not guilty 25 Triall of the plea of not guilty by Battell 26 Triall by Peeres 27 Triall by the Countrey 28 Challenges 29 Euidence 30 The Verdict 31 Clergie 32 The Kings Pardon 33 Standing mute or answering indirectly 34 Judgement and Execution 35 Forfeitures for Treason or Felony 36 Corruption of Blood 37 Restitution of stolne goods 38 Dammages in an Appeale 39 A Writ of Conspiracie 40 The Coroner and his authority and dutie in Felonies 41 Who shall be Judge in Treason and Felonie ⧠A briefe effect of euery Braunch or Chapter in this Treatise Menace Assault Batterie Imprisonment Maiheming Fol. 1. 1 THe euill fruits of menaces Menacers shal be imprisoned The enormitie of libelling and defaming 2 The differences of Menacing Assault and Batterie 3 The declaration in trespas of menacing A rebuke accounted a Menace or Assault 4 Menacing a seruant wherby he departeth out of seruice 5 Menacing a tenant whereby he departeth from his tenancie Menacing of a Lords Freeholder 6 Menacing which is iustifiable 7 Menacing by going or riding armed 8 Wearing of a priuie coat a Menace 9 Labourers shall weare no weapons to preuent Menaces 10 Assurances made by Menace 11 What is an assault What is a batterie 12 Iustifying of beating in his owne defence Barre in trespas of Assault and Batterie 13 Iustifying of beating in defence of others The mastâ—rs remedy for beating of his seruant 14 Batterie in defence of his goods Battery in defence of his land lease or way 15 Batterie in resisting of a Iustice of Peace 16 A Schoolemaster beateth his Sholler 17 A Master beateth his Prentice 18 Beating of a man that is franticke 19 Beating of one that will not yeeld to arrest 20 Beating of a seruant departing out of seruice Beating of a Ward 21 Commaundement of Batterie 22 Battery or hurting at some exercise or disport 23 Battery by whipping of a vagabond Punishments by the order of Law 24 Battery for disobeying of a writ or warrant 25 Arresting one in a Church that is doing diuine seruice 26 Disturbing of a Preacher in his Sermon 27 Chiding in a Church or Churchyard Smiting in a church or churchyard Drawing or smiting with a weapon in a Church or c. 28 Drawing of blood within the kings palace 29 Assaulting one which commeth to the Parliament Assaulting the seruant of a Parliament man The liberty of the Clergie at a Conuocation house touching assaults 30 Assaulting a Iudge or Iuror Striking in time or place of iustice 31 Arresting by watchmen 32 Trespas for a battery before Outlawrie 33 A man first indicted for batterie and after sued for the same 34 What imprisonment is Voluntary consent no cause of imprisonment 35 Imprisonment by the commandement of the king or his Iustices c. 36 Imprisonment for notorious and grieuous offences 37 Imprisonment for offences done vi armis 38 Imprisonment for Riots 39 Imprisonment for holding land with force 40 Imprisonment of one that is pursued by huy and cry 41 Imprisonment of him that doth breake the peace Arresting of suspected persons 42 Imprisoning of him that doth attempt to rob 43 Assisting him to arrest that hath a warrant 44 Breaking of a house to arrest in what case lawfull 45 The shirife doth arrest and doth not returne his writ 46 Arresting vpon suspition of felony Causes of suspition of felony
to the plaintife was of the plaintifes owne assault and in defence of the defendant Iustifiing in his owne defence And likewise it is a good plea in barre in an appeall of maihem for the defendant to plead the plaintifs release made vnto him after the supposed offence done of all actions personals or of all actions The plaintifes release or of all appeales or of all demaunds for in this case the plaintife is but to recouer dammages 7. H. 4. 30. 66 If an appeal of maihem be brought against diuers Execusion in appeal of maihem one of them doth appeare in court and confesse the maihem and is committed to the Marshalsea and the plaintife hath iudgement against him he can not sue against the residue vnlesse he will suffer him that hath confessed the maihem to goe at liberty for if he hath iudgement and the body of him who confessed the maihem to remaine in prison that shall be an execution for this whole maihem 67 The Sages and Iudges of the land in former ages did hold it for law An action of Trespas after an appeal of maihem that if one doe assault Fitz. Coron̄ 110. 22. Ass p. 82 beate and maihem an other and the partie maihemed doth bring an appeall of maihem against the offendor and recouer dammages against him yet after he may haue an action of Trespas of assault and battery against the same offendor and recouer dammages for his beating and the recouerie of dammages in the appeal of maihem shal be no plea in barre against the plaintife for the appeal doth only medle with the maiheming not with the beating But if the plaintife do bring an appeal of maihem in the Kings bench 43. Ass p. 39 and after apparance be nonsuit in the same and then doe bring an action of Trespas of assault and batterie for the same fact Then the defendant may plead the same appeal and nonsuit in barre against the plaintife and it is a good plea. 41. Ass p. 16 Co. Lib. 4. 43. But of late yeares viz. An̄ 31. Eliz. it was adiudged that in this and all cases when the plaintife for one wrong and iniurie is but to recouer dammages he shall not be for that cause satisfied twice for one offence And in these two actions of appeal of maihem and trespas the plaintife shall onely recouer dammages And therefore it was adiudged a good plea in barre in an appeal of maihem to plead that the plaintife had before brought an action of Trespas against the defendant of assault battery wounding and had recouered dammages therein and to auerre that the same assault batterie and wounding and this maiheming were all one offence 68 As the law hath prouided remedies to punish those who by menace Restraint of affraies by Iustices of peace assault battery imprisonment or maiheming do breake the peace So hath it alwaies had a vigilant eie by anticipation to preuent many others that would breake the peace by any of the meanes aforesaid and therefore hath from age to age appointed méet magistrates and watchmen to whose charge specially as selected Sentinels she did commit the preseruation of the peace who in times past before the raigne of King Edward the third were called Conseruators of the peace Stat. 1. E. 3. 26. and sithence they haue béen termed Iustices of peace because they be Iudges of record or otherwise they be named Commissioners of the peace because they haue and deriue their authority by the Kings Commission who him selfe being the chiefe and generall Conseruator and Preseruer of the peace throughout all his Dominions doth by his seuerall Commissions commit some particles of his authoritie touching the continuance of the peace and maintenance of certaine of his Lawes to some chiefe and select men in all the parts of the Realme whom he taketh to be the most méete men for the same in respect of their integritie wisdome learning courage and liuelyhood The forme of so much of which Commission as toucheth the Peace and good Abearing is this Iacobus c. praedilecto fideli Conciliario nostro Thomae domino Elsmere domino Cancellario nec non praedilectis A.B.C.D.E.F.G. H.I.L.M.N.O.P. c. The Commission of the Peace Sciatis quod assignauimus vos coniunctim diuisim quemlibet vestrum Iusticiarios nostros ad pacem nostram in Comitatu nostro buck conseruand ' ac ad omnia ordinationes Statuta pro bono pacis nostrae ac pro conseruatione eiusdem pro quieto regimine gubernatione populi nostri aedita in omnibus singulis suis articulis in dicto comitatu nostro tam infra libertates quam extra iuxta vim formam effectum eorundem custodiend ' custo dire faciendum Et ad omnes contra formam ordinationū vel Statutorum illorum aut eorum alicuius in comitatu praedicto delinquentes castigandū puniendum prout secundum sormam ordinationū Statutorū illorum fuerit faciendum Et ad omnes illos qui alicui vel aliquibus de populo nostro de corporibus suis vel de incendio domorū suarum minas fecerint ad sufficientē securitatem de pace vel bono gestu suo erga nos populum nostrū inueniendam coram vobis seu aliquo vestrum venire faciendum Et si huiusmodi securitatem inuenire recusauerint tunc eos in prisonis nostris quousque huiusmodi securitatem inuenirent saluo custodire faciendum Et ideo vobis cuilibet vestrum mandamus quod circa custodiam pacis ordinationum Statutorum omnium singulorum caeterorum praemissorum diligenter intendatis Et ad certos dies loca quae vos vel aliqui duo vel plures vestrū vt praedict ' est ad hoc prouideritis super praemissis faciatis inquisitiones premissa omnia singula audiatis terminetis ac ea faciatis expleatis in forma praedicta factur̄ in de quod ad Iusticiam pertinet secundū legem consuetudinem Regni nr̄i Angliae saluis nobis amerciamentis alijs ad nos inde spectantibus 69 And though there be many other offences mentioned in the said commission which the Iustices of peace are by force of the said Commission to enquire of heare and determine and to punish the offendors therin according to the lawes and Statutes of the Realme Yet as it appeareth by the words of the said commission the same hath his chiefe care and respect of the peace to the preseruation thereof And to the intent that the said Iustices or commissioners should the better remember and respect their charge and dutie they are called Iustices or commissioners of the peace and not commissioners of justice of conscience or equitie c. And so their names together with their offices and duties be in a sort written in their foreheads And the restraining or punishment of all the other offences mencioned in the said
Eliz. doth repeale as well the before mentioned statute of 1. H. 5. and all other statutes before that time made and prouided for forging of false deeds Lib. in t fol. 359. and hath ordained a new action of forger of false deeds to be founded vpon that Statute and other new remedies yet seeing both those statutes were made and prouided to one end viz. to auoid and punish the enormities of forgerie of false deeds to the disherison or hurt of others though vpon seuerall penalties Notwithstanding in some cases the like reason and so the same law is to be retained in the said statute of 5. Elizab. which was before in the first mentioned statute of 1. H. 5. As in action of Forger of false deeds 9. H. 6. 26. 20. H. 6. 11. 19. H. 6. 29. 21. H. 7. 15. 37. H. 6. 37. brought vpon the said statute of 1. H. 5. Pleas in bar of forgerie it is a good plea in barre for the defendant to plead not guiltie or that he did not forge that deed or to plead that he gaue to the plaintife a gallon of wine in satisfaction of the said offence which he did accept And so it is a good plea in barre in an action of forger of false deeds brought vpon the statute of 5. Elizab. and the same plea being confessed by the plaintife or found by verdict shall not onely barre the plaintife of the recouerie of his double costs and dammages but shall also discharge the defendant of all corporall punishments to be inflicted and of the forfeiture of the issues and profits of his land to the king For this is not a release or discharge after verdict but a discharge before verdict whereby the whole Action and sute is discharged and so not within the compasse of the said statute of 5. Eliz. 14. touching the plaintifes release or discharge after verdict Where one shall haue an Action of forgery though he hath but a right to the land 18 There be some cases where a man shall haue an Action of forger of false déeds though he hath neither possession reuersion or remainder but onely a title to the land As if a man die seised of certaine land and a stranger doth abate and enter vpon the same land before the entrie of the heire and holdeth out the heire and after the same abator doth forge some charter deed or other writing sealed of the same land to the intent to disturbe trouble or defeate the estate of the heire in the same in this case the heire may haue an Action of forger of false deeds against the same stranger though he hath then no possession reuersion or remainder in the same land And so it is 4. H. 6. 25. 22. H. 6. 15. 15. Ed. 4. 24. if one man doe disseise another man of land and after doth forge false deedes c. of the same land to the intent aforesaid the dissesee may maintaine an Action of forger of false deeds against the disseisor vpon the Statute of 5. Elizab. as he might haue done before vpon the Statute of 1. H. 5. for that his right and title to the same land is molested troubled defeated recouered or charged by the same forged deed And the same law is if a man doe bring a reall Action against an other of certaine land 9. Ed. 4. 37. and before iudgement one claiming a lease for the terme of yeares of the same land praieth to be receiued to saue his terme according to the Statute of Gloucester and doth shew his said lease which lease is forged Stat. 6. Ed. 1 11. In this case the Demandant in the saide Action may haue a writ of forger of false deedes against him that claimeth the said terme though he hath as yet nothing in possession reuersion or remainder in the same land but onelie a right for this lease is forged to â—he intent to defeate him of his right viz. of his present possession 19 If a man hath neither possession reuersion remainder or title of in or to land Where no Title no Action of forgerie and yet will bring against another an Action of forger of false deedes of the same land it is a good plea in barre for the defendant to pleade 21. H. 6. 51. 8. H. 6. 34. that hée himselfe is seised of the same land without that the plaintife hath any thing therein for if the plaintife hath nothing in the freehold or inheritance of the land nor any estate for yeares copihold or annuity in the same then he cannot be the party grieued in that Action neither his right title or interest of in or to the same can be molested troubled or defeated recouered or charged And the same law is if a man hath in land no mediate or immediate estate expectant vpon any lease or leases for life liues or yeares nor profit right of entry but onely a possibilitie 33. H. 6. 22. As if A. doe giue land to B. and the heires of his body lawfully begotten the remainder thereof to C. and his heires for euer If E. doe forge a deede containing that A. gaue same land to the said B. and the heires of his body lawfully begotten the remainder thereof to him the said E. and his heires for euer In this case C. cannot pursue an Action of forger of false deedes against E. during the liues of B. or of any of the heires of his body lawfully begotten for the said forgery séeing that during the said time his right title or interest into that land is not molested troubled defeated recouered No Action in respect of a possibilitie or charged for that he hath therein during that time but onely a possibilitie which possibilitie it may be shall neuer come into Esse And further C. cannot for the said forgery recouer double costs and dammages according to the said Statute of 5. Eli. for that he is not as yet a partie grieued nor damnified nor hath sustained any dammages neither peraduenture euer shall if B. and his heires doe continue from one generation to another and not die without issue of their bodies c. And of a bare possibilitie no value can be made neither single or double dammages assessed 18. H. 6. 5. 9. H. 6. 26. Kel fol. 114 20 If there be two Ioyntenants or tenants in common of land and a stranger doth forge a déede concerning the same land Forging of a déed touching ioyntenants land if one of those Ioyntenants or tenants in common doe bring an Action of forger of false déedes against the offender and the Defendant doe pleade that another hath an estate in Ioyntenancie or in common with the plaintife who is in full life this writ shall abate for séeing this Action is but in the nature of an Action of Trespas wherein the plaintifes are onely to recouer dammages Ioyntenants and tenants in common must ioyne in the same Action for though their right in
thing and things in all points as other Iustices of Assise in their circuits or Iustices of peace in the Counties by vertue of this Act be limited and appointed to do and execute for the punishment and correction of like offendors as beforesaid is limited Sauing to the partie grieued by such deceit such remedie by way of action The remedie of the partie grieued or otherwise of for the same money goods cattels iewels or other things so obtained as he might haue had if this Act had neuer bin made Any thing in this Act c. notwithstanding 26 Forgerie of writings hath béene alwayes so hatefull in this realme that our law-makers haue pursued the practisers therof with sharpe and bitter punishment though in some cases the same was not put in vse to molest or euict any man of his land lease annuitie debt account action suit or other demaund nor to get into his hands any others goods cattels or iewels but only to escape the ordinance and censure of the law As by a statute made anno 5. Eliz. it is established St. 5. El. 7. That no person retained in husbandry or in certain inferior arts or faculties in the said statute mentioned shal depart out of one citie towne or parish into another nor out of the Lathe Rape Wapentake or Hundred nor out of the County or Shire where he last serued to serue in another Citie Towne Forging of a testimoniall c. vnlesse he haue a Testimoniall of the said Citie or town corporat from whence he departed or of the Constable or other officer c. And if any such person shall be taken with any counterfeit or forged testimoniall then he shal be whipped as a vagabond ⧠Periurie Subornation of witnesses Truth tried by the othes of men 1 THe Law of the Realme desirous to trie out truth in all causes called in question before her to the end she might procéed in iudgement and execute iustice accordingly hath in all ages prooued it to bee the best meanes to search out this truth by the othes of honest lawful and indifferent persons intending that the man who doth professe God to bee his Creator Redéemer and Sanctifier and hopeth to be saued by his blood when hee doth come in the presence of that God and his people and doth aduisely sweare that he will declare the trueth according to his knowledge in that matter in question as God shall help him which is to say as he will expect the blessing of God in this life and eternall saluation in the life to come is void of all partialitie and priuat affection in all respects to be credited and will tell the whole truth and nothing but the truth And therefore an othe is aptly termed Sacramentum a holy band or sacred tie or godly vow The credit of an othe some do call it firmamētum veritatis the foundation ground of truth and some other vinculum pacis a meane of the knot or lincke of peace And if it be taken and found by a whole Iurie consisting vpon twelue persons or aboue it is called veredictum viz. a presentment of truth And others doe hold it a ceremonie instituted by God wherein himselfe is a partie and therefore he will see it verified or sharply punished Wée know that the proofe of most of our acts déeds and writings doe depend vpon the othes of others and whatsoeuer men do for their owne particular account most certaine is altogether in most cases vncertaine vnlesse it may be iustified by the othes of others As if one doe commit murder rape burglarie robberie or other offence whatsoeuer and it be denied and cannot be prooued by the othe of some other the offendor shall escape vnpunished for it And likewise if a man do buy land of another if the feoffor doe make him a déed of feoffement thereof do seale and deliuer it and giue him possession and after will denie it vnlesse it can be prooued by the othe of some other the feoffée shall loose his land and money And so it is of leases annuities releases acquitances obligations bargaines contracts couenants promises offences entries disseisins and other matters in fait if they be denied trauersed and called in question the proof and validitie of them doth depend wholly vpon the othes and testimonie of others And there is no case so plaine which commeth in question betweene partie and partie but one of the parties to the sute may pleade such a plea as shall come to be tried by the othes of others 2 Therefore as the Lawe doth reuerently respect the othes of men What sorts of persons are to be deposed taketh her intelligence of matters in fait from them doth cleaue leane vnto them and giueth such credite and approbation vnto them that shée doth found and build her iudgements in most cases of greatest importance vpon them So shée retaineth a vigilant and carefull eye that those othes be taken by men of sinceritie of life and maturitie of iudgement persons not stained with Periurie or other gréeuous or foule offences men indifferently affected and such as will in swearing respect the trueth of their knowledge and not the face of the person for if shée espie any of those defects in him she doth either wholly reiect his othe or else shée giueth little or no credite vnto it and further inflicteth condigne punishment vpon him according to his desert Mag. Char. 9. H. 3. 29. 3 And because the King himselfe at his Coronation is sworne that iustice shall be solde deferred or denied to no man nor that any man shall be condemned but by lawfull triall and euery of his Iudges be sworne that hée shall doe equall Lawe and execution of iustice to all the Kings Subiects Sta. 18. Ed. 3 rich and poore without hauing regard to any person All the parties to the execution of iustice sworne Therefore the law hath deuised that those Iudges before whome any cause is called in question and is brought to an issue shall be informed of the trueth of that issue by the othes and verdict of twelue Iurors who are impannelled returned and sworne to trie that issue to the end the same Iudges may ground their iudgement thereupon and so doe equall iustice to the parties according to their oathes and also that the saide Iurors shall be ascertained of the veritie of the fact by the Othes of witnesses or other euidences that they may giue their verdict thereupon according to their Othes And séeing those Iurors being the greatest number of persons that be vsually sworne for the furtherance and execution of iustice be returned by the Shiriffe of the Countie where the cause dependeth in question his vndershirife or the Bailife of some Libertie or for some default in them by the Coroners Therefore the Lawe hath further ordained that the saide Shiriffe Vndershiriffe or c. shall be indifferent persons of themselues and also deale vprightly
in returning of those Iurors lest by their partialitie Truth may be concealed Periurie committed and so iustice subuerted Fitz. Challenge 113. 7. Ed. 4. 56. 33. Ass p. 12 12. Ass pl. 1. 26. Ass p. 56 12. Ass p. 36. 44. Ass p. 18 Plo. Com. fol. 425. 29. Ass p. 2. 28. Ass p. 22 7. H. 4. 10. Fitz. Challeng 94. 99. 8. H. 5. 5. 20. H. 6. 39. 11. H. 4. 26. 38. H. 6. 6. 24. Edw. 37. And for that cause the prouidence of the Lawe doth not allow that Shiriffe Vndershiriffe Bailiffe of Franchise Coroner Causes of suspition in Shiriffes in impannelling of Iuries or other person as indifferent or méete to impannell a Iurie who is a partie to the sute or matter in question or who doth maintaine either of the parties plaintife or defendant in the same sute or is of councell with either of them in that sute then in issue Nor who is within the distresse receiueth the yéerely fée or weareth the liuerie or robe of any of the parties to that sute Nor who is of kinred by nature or of affinitie by marriage to any of the parties to that sute Nor who doth returne that Enquest or any of the Iurors therein at the denomination or by the procurement of any of the parties to the same sute or of any other person whatsoeuer Nor who doth impannell that Enquest or any of the Iurors therein for the fauour which he doth beare more to the one partie than to the other Nor who was an Arbitrator in that cause in question and to be in triall and did treate and conferre of the same Nor who is then in sute of lawe with either of the parties to this question or triall for any matter of trespasse malice or euill will Nor who did baptize the childe of any of the parties to this sute and triall 4. Ed. 4. 11. or any of the parties to the same sute did baptize his childe All which the Lawe doth suspect as causes of fauor and affection in the Shiriffe his Vndershiriffe c. and to be moouers fauourers or consentors to Periurie and therefore vpon challenge of the Array so being impannelled and the same prooued the whole Array shal be quashed 4 As the Lawe hath great care that Shiriffes Vndershiriffes Bayliffes of Liberties Coroners and all others hauing authoritie to returne enquests should therein be voide of all partialitie or presumption or cause thereof to the intent that a gappe should not be left open by their meanes to those that be willing to enter into corruption of conscience and so to commit Periurie In like sort hath shée vigilantly foreséene that those Iurors which be returned by the said Shirifes c. may be so sifted tried and examined that they may be found in all respects Probi legales homines Euery Iuror must be an honest and lawfull man viz. honest vpright 33. H. 6. 55. 26. Ass p. 28 14 H. 4. 19. 9. Ed. 4. 16. 11. H. 4. 4. and lawfull men in the eie and iudgement of the Lawe and that none of them be an Alien a villaine or outlawe an excommunicate person and thereby not legalis homo nor conuicted in a Writ of Conspiracie or an Attaint and by that meanes not probus homo and so to be challenged in euery cause and by euery person and further that they may be prooued to bee men of indifferencie and voide of all partialitie and such as will wholy respect the trueth of the cause in question and in their verdict nothing regarde any that is partie thereunto And therefore if there be any lawfull cause to feare particular fauour and affection in any of the Iurors and that hée will rather incline to Periurie than giue eare to the trueth of the cause the Lawe doth allow to the partie grieued Challenges of Iurors suspected or suspecting the same seuerall Challenges to the same Iuror and thereby to haue him drawne and remooued out of that Enquest A witnesse 5 As if a man be a witnes in a cause in question he can not be a Iuror in the same cause for the witnes doth testifie vpon his certaine knowledge 23. Ass p. 11 12. Ass p. 12 11. Ass p. 19 and the Iurors of an Enquest must giue their verdict according to their euidence And besides he that produceth a witnesse expecteth at his hand a fauourable deliuery of his euidence or otherwise he would not produce him which fauor euery Iuror must be wholy voide of if he will auoide Periurie Periurie suspected by deliuering his verdict before hand 6 If a Iuror after he is returned and before he is sworne 20. H. 6. 39. 8. Ed. 3. 69. will say that he will passe for the plaintife or defendant and doth speake it for the fauour which he beareth to the one partie or the hatred which he hath to the other and not in respect of his owne knowledge of the trueth of the cause the Law doth feare periurie in him and therefore shée will remooue him out of that enquest if he be challenged therefore Periury suspected by lying at the charge of one of the parties 7 If one that is impannelled of a Iurie doth goe to the Assises with one of the parties to the issue and doth eate and drinke with him at his charges 8. Ed. 3. 69 13. H. 4. 13. Fitz. Challenge 177. the Law doth suspect the same Iuror of partialitie and so of inclination to Periurie in recompence of that kindnes receiued and therefore she will remooue him out of that Enquest if he be challenged therefore 20. H. 6. 39. 9. Ed. 4. 46. 7. H. 7. 18. 8 If two men be in question for any cause Periurie suspectcted by an Arbitrator in the cause in question and then do refer the matter in debate to be heard ended by two Arbitrators whereof the one doth make choice of one Arbitrator and the other of an other which Arbitrators doe méete together and confer of the cause but do not agrée whereupon the party grieued doth prosecute the said suit to an issue and one of the same Arbitrators is returned of that Enquest the law doth suspect the same Iuror of partialitie and so of inclination to Periurie and therfore she will remoue him out of that Enquest if he be challenged therefore for when he was chosen by one of the parties alone this election maketh him in a sort of councel with him that did choose him and so fauorable vnto him but if he had bin chosen by the consent of both the parties together 3 H. 6. 25. the law would haue made other construction of him and adiudged him indifferent 34. Ass p. 6. 9 If two men do combine themselues by Oath bond couenant or faithfull aduised promise that one of them will take an others part be his friend and assist him in all causes whatsoeuer And after there is a sute commenced betwéene one
of the stat of 18. El. 14 Maintenance Champertie buying of titles Embracery haue bin accounted so offensiue professed enemies to the iustice peace of the realm that though by the stat of an 18. El. it is ordained Stat. 18. El. 5 That euery informer vpon any other penall stat shal exhibit his suit in proper person pursue the same onely by himselfe or by his Atturney in court and that none shal be admitted to pursue against any person vpon any penall stat but by way of information or originall writ and not otherwise nor shall haue any deputy at all And that vpon euerie such information which shal be exhibited a speciall note shall be made of the very day moneth yere of the exhibiting therof into any office or to any officer which lawfully may receiue the same without any maner of antedate to be made thereof And that vpon euery such proces shal be indorced aswel the parties name that pursueth the same proces as also the stat vpon which the information in that behalfe made is grounded and that no Informer or plaintife shall compound or agrée with any person that shall offend or shal be surmised to offend against any penal statute for such offence but after answer made in court vnto the information or suit in that behalfe exhibited or prosecuted nor after answer but by the order or consent of the court in which the same information or suit shal be depending Yet in the said stat of 18. El. there is a prouiso That it shal be lawfull for any person or persons grieued by means of any maintenāce chāpertie buying of titles or other embracery to pursue vpō any stat prouided against maintenance champerty buying of titles or embracery as he or they might haue done before the making of the said act Which prouiso was made to the end that all persons grieued by reasons of any maintenance champertie buying of titles or embracery should be left at libertie to pursue chasten the offendors therin by all such means as former laws haue authorised thē not be restrained by any of the ordinances or articles before rehearsed for that the said offēces were by the makers of the said stat adiudged to be greater impedimēts obstacles to the execution of iustice than other penal stat were 15 As the policie of the realme hath deuised the foresaid popular actions and suits to enable euery person that will Assurances to haue mainte void in diuers cases to pursue prosecute maintainors champertors buyers of pretenced rights c. to the intent the sooner to root out extirpat those offendors who indeuor to wrest the execution of lawes out of their due course to subuert iustice thereby to hinder the peace of the realme so hath it in some cases gone further ordained that some assurances made for maintenance shal be presently void as it appeareth by the stat of an 8. St. 8. H. 6. 9 H. 6. wherby it was enacted Lands gotten by force assured to haue maintenance That if any person after his entry into lands or tenements holden with force do make a feoffement or other discontinuance to any Lord or other person to haue maintenance or to toll defraud the possessor of his recouerie in any wise If alter in an Assise or other action thereof to be takē or pursued before the Iust of Assise or other the kings Iustices whatsoeuer they be by due inquiry therof to be taken the same feoffements and discontinuances may be duly proued to be made for maintenance as is aforesaid that then such feoffements or other discontinuances so as before made shall be void St. 4. H. 4. 8. holdē for none And by the stat made an 4. H. 4. it was established That if any man great or small of what estate or condition they be Lands forcibly gotten by maintenance make any forcible entry in his own right or to his own vse or in anothers right to his vse by the way of maintenāce therof is attained at the suit of the party grieued he shal be one yere imprisoned pay to the partie grieued his double dammages And also he shall answer to the partie grieued damages for his goods cattels if vpon the said forcible disseisin he tooke away any 16 As by the before mentioned stat maintenance champerty What maintenance is punishable and what iustifiable embracerie buying of titles be in generall termes deciphered together with their seuerall penalties so haue the learned Iudges Sages of the law expounded the particular branches of euery of those stat as they grew in question were prosecuted in suit before them also resolued what maintenance is punishable and what iustifiable who may pursue an action writ bill or information c. of maintenance champerty c. against whom the same is to be brought for what offēce or cause the same is maintenable what pleas are to be pleaded to the writ or in bar of the said actions writs informations c. what iudgemēt shall ensue thereupon As euerie champertie is an vnlawful maintenāce prohibited by the foresaid stat of West 1. West 2. 9. H. 6. 64. St. 28. E. 1. 11. and punishable according to the before rehearsed stat of An. 28. E. 1. and euerie chāpertie is a maintenance the partie grieued may haue aswel a writ of Maintenance as of Champertie for by that meanes the champertor hauing bargained to haue part of the land or thing in question doth ofttimes moue further the suit suborneth witnesses corrupteth the Iurie and so subuerteth iustice but there must be a suit depending before it can be adiudged maintenance in any sort for if one man wil giue money to another to beginne and prosecute a suit against a third person 3. H. 6. 55. 8. H. 5. 8. 10. Ed. 4. 19. 30. Ed. 3. 3. this is no maintenance for that this mony was giuen when there was no suit depending and if there be a writ brought and neuer returned it is no maintenance No maintenance in a Iuror for giuing his verdict 17 If there be a suit depending betwéene two and they do ioyne an issue 18. E. 4. 2. 28. H. 6. 6. which is tried by xij men found for the plaintife in this case the defendant cannot haue an action of maintenance against the said Iurors or any of them for this verdit giuē for that they gaue their verdit according to their euidence and their knowledge of the truth of the matter and besides they did not thrust thēselues into that cause but were compelled to appeare by an ordinarie course of law being impanelled returned by the Sherife or some other lawfull officer Maintenance by a Iuror suing for iudgement but if after the verdit giuen any of the Iurie wil solicit or labor to the Iudge or Iudges of the court where the said suit
lessor of the remedy which the said statute of Anno 4. H. 7. did giue him viz. to make his entry or to pursue his action within fiue yeares which he could not do being ignorant of the lease for life which his tenant had made of this land to a stranger and also conceiuing that the lessée hauing land of his owne fée simple in the same towne he leuied a fine of that land which hee might lawfully doe And the deceit and fraud in this case is the more odious because it was practised by the lessée against his lessor and by the copyholder against his Lord who is by the law bound to do fealty to the lessor and Lord which is a bond of confidence and a linke of trust And if a man seised of land in fée Fit Fines 120. do make a lease to another thereof for terme of life and the lessée for life doth leuie a fine therof to a stranger he in the reuersion may enter into the same land for a forfeiture and put forth the conusée in the fine and auoid the fine for it was leuied by deceit to defraud him of his reuersion If a fine be leuied of lands to secret vses to deceiue the purchasor of the same land it may be auerred to be leuied by fraud and so by the statute of 27. El. 4. auoided St. 27. Eli. 4. And so if a fine be leuied vpon an vsurious contract and that be auerred the same fine shal be void by the stat of 13. Eliz. 8. St. 13. Eli. 8 A fine leuied of ancient demesne lands to defraud the Lord. 5 The law is as prouident to protect mens seigniories rents and seruices from euiction by deceit as she is their lands and tenements knowing that a fine in some cases leuied by couin of the one may be as preiudiciall to his inheritance as of the other hath therefore ordained seuerall remedies to redresse seuerall wrongs as if a man seised of lands in ancient demesne do leuy a fine thereof at the common law to another this is a deceit to the lord of that manor of whom the said lands be holden 21. Ed. 3. 20 Fit Nat. Br. 98. therefore he may haue a writ of Deceit against the cognisor and the tenant of the lord thereby auoid the said fine and then he that leuied the said fine shall be restored to the possession and the title which he had before in the same land and also the same land shall returne and become auncient demesne as it was before for that the said fine shal be vtterly void 21. Ed. 3. 56. And he that is lord of a manor of auncient demesne but for the terme of his life only may maintaine this writ of Deceit And so may he in reuersion if tenant for the terme of life doe not bring it during his life and either of them by his said writ may auoid the same fine for by the leuying of a fine at the common law of lands in ancient demesne 8. E. 4. 6. or by recouerie of them at the common law the same lands do become Franke fée and pleadable at the common law and so the lord should be deceiued of his right and loose his seigniorie in them And the writ of Deceit will auoid the said fine or recouerie because the fine was leuied and the recouerie was suffered coram non iudice in deceit of the Lord viz. not before that Iudge nor in that Court where they ought to haue béene 17. Ed. 3. 31. 7. H. 4. 44. 8. H. 4. 23. Fitz. Na. Br. 98. But if a man seised of lands whereof parcell be auncient demesne and parcell Franke fée doe leuie a fine at the common law of both parcels in this case though the Lord of the auncient demesne doe by his writ of Deceit auoid the fine for so much as is ancient demesne yet the residue of those lands which be Franke fée shall continue in force for a fine leuied of them was no wrong or deceit to any 6 And the same law is where land is recouered by deceit A writ of Deceit to auoid a recouery as if one man do bring a Praecipe quod reddat against another and demaund certaine land by force whereof the tenant ought to be summoned to be before the Iustices at a certaine day and the shirife doth returne the tenant of the land against whom the said Praecipe is brought Fit Nat. Br. 97. summoned whereas in truth he was not summoned by which false returne and deceit of the shirife the demaundant doth vpon the Graund Cape recouer seisin of the land by default of the tenant in this case the tenant to whom this deceit is done 3. E. 3. 28. Fitz. Deceit 49. may after iudgemēt giuen for the demaundant haue a writ of Deceit against him that did recouer and against the shirife for his false return And by this writ of Deceit the tenant shal be restored to his land againe 18. E. 4. 11. so that it be brought during the life of the summoners viewers and pernors or any of them for if it bee not brought vntill all the summoners viewers and pernors be dead it will not lye for after the death of them the tenant shall not haue a writ of Deceit for proces shal be awarded against the summoners viewers and pernors to appeare in Court and by the examination of them it is to be tried whether the tenant was summoned or not 50. Ed. 3. 16. 8. H. 6. 1. Fitz. Deceit 48. Fitz. Deceit 32. 33. 34. 46 for the summons must be made by two summoners at the least and two viewers And if any of them did not their duty then the writ was not executed as it ought to haue béene and therefore the plaintife in the writ of Deceit ought to be restored But the K. shall haue the issues of the land in the meane time And if the demaundant who did recouer by the shirifes false returne do make a feoffement of the land then the writ of Deceit must be brought against the demaundant the feoffée and the shirife and if the demaundant that doth recouer 8. E. 3. 6. 10. Ed. 3. 43. the shirife also be both dead yet the writ of Deceit may be brought against the heire of the demaundant and the tenant of the land if the summoners viewers and pernors be liuing And if a man do lose his land by default in a Praecipe quod reddat Fit Nat. Br. 98. Fitz. Deceit 43. 80. whereby he was not summoned and then dieth his heire may haue a writ of Deceit as well as his auncestor and shall haue restitution and the vouchée The vouchée may haue a writ of Deceit where he doth loose by default if he were not summoned 7 And so it is if a man sue a Scire facias against another Deceit to auoid a recouerie vpon a Scire facias
any person or persons or to his or their right heires Or at any time since the said 20. day of Iuly hath conueyed or hereafter shall conuey or make by couin contrarie to the true intent of the Act prouided 34. H. 8. for the making of Wils any estates conditions mesnalties tenures or conueyāces to the intent to defraud or deceiue the King of his Prerogatiue primer seisin liuerie reliefe wardships mariages or rights or any other Lords of their wardships reliefes heriots or other profits which should or ought to accrue growe or come vnto them or any of them by or after the death of his or their tenant by force and according to the Statutes made 32. H. 8. 1. 34. H. 8. 5. and the same estates and other conueyances béeing found by office to be so made by couin fraud or deceit contrary to the true intent of the said Acts Then the king shal haue as wel the wardship of the bodie and custodie of the lands c. as liuery primer seision reliefe and other profits which should or ought to appertaine to him according to the true meaning of the said acts as though no such estates or conueyances by couin had neuer béene had or made vntill the said office be lawfully vndone by trauerse or otherwise And the other Lord and Lords of whom any such lands c. shal be holden by Knights seruice as is aforesaid shall haue their remedy in such cases for his or their wardships of bodies and lands by writ of right of ward and shall distraine and make auowrie or cognisance by themselues or their bailifes for their reliefes heriots and other profits which should haue béene to them due by or after the death of their tenant as if no such estate or conueyance had béene had or made Sauing the right and title of the donees feoffées leasées and deuisées thereof against the said deuisor and his heyres after the interest and title of the King or other Lord therein ended 24 If the father doe make a feoffment of his lands holden by Knights seruice Fitz. Collusion 29. 33. H. 6. 14. Co. li. 1. 122. to his eldest sonne He that is not partie to a fraud shall sustaine no losse then by the foresaid Statute of Marlebridge the Lord of whom the same lands be holden is inpossibilitie to haue the wardship of the said sonne if the father die his said sonne being within age But if the same sonne doe after make a feoffment of the same land to an other bona fide and after the father doth die leauing his sonne within age there this possibilitie is destroyed for that the stranger who had no notice of this fraud hath purchased the land bona fide and therefore shall sustaine no preiudice by it And yet in that case if the sonne had made the Feoffment after the fathers death Co. li. 2. 94. this alienation had not depriued the Lord of his wardship which was once lawfully deuolued vnto him 25 And it is a deceit collusion and defrauding of the lawe and a great disheritance and preiudice to the Lords of the Fee of whome any lands bee holden to giue the same lands in Mortmaine or to doe any Act or procure any thing to be done whereby they may come into Mortmaine contrarie to the statutes of Magna Charta 7. Ed. 2. 13. Ed. 1. 15. R. 2. and 23. H. 8. for the Lordes doe loose the wardships mariages reliefes and other seruices of their Tenants by that meanes And therefore by the Statute of West 2. it was enacted That if any religious or Ecclesiasticall person doe impleade an other St. 13. E. 1. 31. by a Reall action of land and the Tenant will make default after default whereby hee ought to loose the land Then hee which doth recouer shall not haue Execution of the same Land recouered vntill he hath sued forth the kings writ of Quale ius directed to the Escheator of the same countie to make enquirie by a Iurie what right hee that recouered the land hath to the same And if he hath right Deceit and Collusion to bring land into mortmaine iudgement shal be giuen for him he shall haue execution of the same land And if it be found that he hath no right to recouer by his said action but that the lands were lost by collusion betwéen him and the tenant of the land then the land shall accrue to the next Lord of the fee if hée demaund it within a yéere next after the Enquest taken And if he doth not demaund it within a yeare it shall accrue to the next Lord aboue if he demaund it within halfe a yeare after the same And so euery Lord after the next Lord immediat shall haue halfe a yeare to demaund it successiuely vntill it come to the King to whom through the default of other Lords the land shall accrue For this recouerie of land by default by a compact and couin before agreed vpon betwéene the demaundant being a religious or Ecclesiasticall person and the tenant is to defraud the intent and meaning of the Statutes of Magna Charta and an 7. Ed. 1. whereby it was ordained St. 9. H. 3. 37 St. 7. Ed. 1. That if any religious person or other whatsoeuer will buy or sel any lands or tenements or wil receiue the same by colour of any gift or lease or by reason of any other title whatsoeuer or will by other practise or deuise procure the same to himselfe whereby such lands or tenements may come into mortmayne he shall forfeite the same lands And by the equitie of the foresaid Statute of Westminster 2. if any Ecclesiastical person doe recouer land against another by reddition 3. Ed. 4. 14. confession or action tried yet the collusion shal be inquired of for that the same recouerie may be by collusion before had betweene the demaundant and the tenant And because that by feoffments fines recoueries and other assurances made of trust of lands to the vse of parish Churches Lands assured in Mortmaine to churches chappels Guilds c. Chappels Guildes Fraternities c. there groweth to the King and other Lords and subiects of the Realme the like losses inconueniences and is as much preiudiciall to them as doth and is where lands be aliened in mortmaine Therefore for the eschuing and auoydance of them by a Statute made an 23. H. 8. it was enacted St. 23. H. 8. 10. That all feoffments fines recoueries wills and other estates deuised or in any wise made of trust of any mannors lands tenements or hereditaments to the vse of any parish churches chappels churchwardēs Guildes fraternities or brotherhoods erected or made of deuotion or by common assent of the people without any corporation Or that the Feoffees Conisees Recouerées or other persons and their heires thereof seised shall take leuie or perceiue or cause to be taken c. the issues and profites thereof and the same to
shall willingly and wittingly put in vre auowe maintaine iustifie or defend the same or any of them as true simple and done or made bona fide and vpon good consideration or shall alien or assigne any the lands tenements goods leases c. to them conueied or any part thereof shall forfeit to the Queene c. and the partie grieued by such fraudulent feoffement gift bond suit c. one yeares value of the said lands c. leases rents or other profits and the whole value of the said goods and cattels and so much money as shall be contained in such couenous and fained bond to bée recouered by A. I. B. P. c. wherein no W. E. P. c. And béeing thereof lawfully conuicted shall suffer imprisonment one halfe yeare Common recoueries without Baile or Mainprise But common Recoueries had against Tenant in taile or other tenant of the fréehold of lands the Reuersion or Remainder or right of Reuersion or Remainder whereof then shall bée in any other person shall as touching such person and his heires which hath the Reuersion or Remainder thereof be of like force and none other Voucher in Formedon as the same should haue béene if this Act had not béene made And no estate or conueyance by reason whereof any person shall vse any voucher in any writ of Formedon shall bée made void by this Act But euery such voucher in any writ of Formedon shall be of like force as if this act had not béene made Lands or goods assured bona fide and vpon good cōsideration Prouided alwaies that this Statute shall not extend to any estate or interest in lands leases goods c. lawfully assured vpon good consideration and bona fide to any person or persons bodies politique or corporat not hauing at the time of such conueyance c. any knowledge of such fraud or collusion as is aforesaid Fraudulent déeds to auoid forfeitures 29 If a man to preuent a forfeiture for a felonie or vpon an outlarie Co. li. 3. 82. will make a gift of all his goods and after is attainted of felonie or outlawed these goods shall be forfeited notwithstanding this gift for this word forfeitures specified in the foresaid Statute of Anno 13. St. 13. El. 5. El. shall not be intended onely of the forfeiture of an obligation Recognisance or such like but also of euery thing which by the Law may be forfeited to the King or to a Subiect And the same Act of Anno 13. El. shall not extend onely to creditors but also to all others who haue cause of Action or suit or to haue any penaltie or forfeiture And if a man do bind himselfe and his heirs to pay to another a certaine sūme of money at a day assigned and before the day doth come of paiment Co. li. 5. 60. the obligor dieth leauing to his sonne and heire sufficient land to pay the same debt the heire doth enter and alien the same land before the obligée doth commence his suit vpon the said obligatiō If vpon the suit of the same obligation the heire do plead nothing but discent and vpon the trial of that issue the foresaid alienation be found by the Iurie to be made by fraud to deceiue the said creditor of his debt or that be pleaded the said alienation shal be void by the foresaid statute of 13. El. and the plaintife shall recouer A déed of gift must be vpon good consideration and bona fide 30 In the said Statute of Anno 13. El. there is one Prouiso St. 13. El. 5. That the said Act shall not extend to any estate or interest in lands tenements or hereditaments leases rents commons profits goods or cattels which is or hereafter shall be lawfully had made conueyed or assured vpon good consideration bona fide to any person or persons or bodies politique or corporat not hauing at the time of such conueyance or assurance to them made any manner of notice or knowledge of such couin fraud or collusion By which Prouiso it appeareth that the gift which is within the compasse of the same Prouiso must be both vpon good consideration and also bona fide And therefore whereas A. did owe to B. CC. l. and to L. a hundred pounds Co. li. 3. 80. payable by two seuerall obligations L. brought an Action of debt against A. vpon his said obligation of a hundred pound during which sute A. being possessed of goods and cattells to the valew of two hundred pounds in secret made a generall déede of gift by writing of all his goodes and cattells Realls and Personalls whatsoeuer to B. in satisfaction of his debt and notwithstanding A. continued in possession of the same goods and sold some of them and did share and brand the shéepe with his owne brand and after L. had iudgement to recouer against A. and had a Fieri facias directed to the Shiriffe of the Countie where A. dwelt who by force of the Writ came to make execution of the same goodes but B. resisted him by force clayming those to be his goodes in respect of his said déede of gift and reported that it was a good déed of gift and made vpon lawfull consideration But in the Starrechamber this was adiudged a fraudulent déede and within the statute of 13. Infallible markes of a fraudulent deede of gift Eliz. for this déed of gift had all the badges and markes of fraud for it was generall and without any exception of his apparrell bedding or any other necessary thing and the owner continued in possession of all the goods and vsed them as his owne and the déede of gift was made in secret and not sealed deliuered nor published amongst his neighbours And it was made whilest the sute was depending betwéene L. and A. And héere was a trust betwéene the Donor of these goods and the Donée for the Donor possessed the goodes and vsed them as his owne and fraude is alwayes shaddowed with trust and trust is the couer of fraud and the writing purported that the déede was made honestly truely and Bona fide which be not accustomed words in a déede of gift and vnusuall termes in any Instrument doe bréed suspition And though this was a true debt due to B. and the consideration was good yet this was not within the before specified Prouiso for that the déede of gift was not made also Bona fide for no déede shall be adiudged to be made Bona fide according to the said Prouiso which is accompanied with any trust and the words of the Prouiso be in the copulatiue vpon good consideration and Bona fide So that good consideration will not serue vnles the gift be also Bona fide viz. to the intent that the Donée shall haue carry away and enioy to his owne vse the possession of the same goodes without any trust expressed or implied and therefore whosoeuer will make a déede
An. 38. H. 8. Bro. Treason 2. for ioyning the Armes of England before the Conquest and the Armes since to his owne Armes for some other offences Quaere within which words of the first rehearsed Statute of 25. E. 3. or of any other Statute at the time of his arraignment in force that offence was comprised and made Treason S. Triall by Peeres 2. ⧠Homicide HOmicide is a word compound and is deriued of these two words Bâ—acton de corona viz. hominis cedium and the most apt and proper definition thereof is when one man or moe men doe kill another man for if a man be killed by a dogge a beast or other thing it is not properly termed homicide The said homicide may be committed by seuerall meanes viz. by iustice Homicide by iustice as when a Iudge doth command or pronounce his sentence that a man attainted by course of law shal be put to death By necessitie Homicide by necessitie as when one man killeth an other with griefe and sorrowe of minde thereby to deliuer himselfe or that which is his or some other persons or things which he is bound to defend from further perill which he or they cannot otherwise escape By mischance By mischance as when a man casteth a stone at a bird or a beast or is in lopping or felling of a trée and another man passing by is slaine therewith without the foreknowledge and against the will of him who did the déede By will By will as when one man hath a will to fight with another and then doth kill him or some other that is in his company and doth take his part in that combate But of this Homicide by will there bée two sortes whereof the one is called Murder and that is By murder when one man vpon malice prepenced and forethought doth feloniously kill an other And the other is called Manslaughter or Chance medley and that is By manslaughter when two men fight together vpon a suddaine heat of blood without any malice precedent and one of them doth kill the other 2 If a man be adiudged by the court to be hanged Homicide by iustice and the Sherife is commanded by the Iudge to doe execution in that manner and he doth it accordingly this is Homicide by iustice But if the Sherife do behead him or cause him to be beheaded or by any other meanes to be put to death than according to the Iudgement M. 35. H. 6. 58. this is no Homicide by iustice but felonie in the Sherife The order of law not obserued in execution of Iustice for that he hath not obserued the order of the Law viz. the iudgement in putting the offendor to death And the same law is if one which is not Sherife or other officer thereunto lawfully deputed will put to death an offendor that is condemned to die vpon his owne authoritie for that is no Homicide by iustice but felonie in him who beeing not the Kings officer thereunto assigned hath killed one of the Kings Subiects without warrant of his law And therefore if the Iudge himselfe who gaue iudgement of death against an offendor shall after put the same offendor to death it is not iustifiable but beeing indited and arraigned thereof he must plead not guiltie And in this case the wife may haue an Appell of the death of her husband so put to death against the said Sherife or other person though the heire cannot haue an Appell of the death of his father so executed because his blood is corrupted by the Attainder 35. H. 6. 57. No man may kill him that is outlawed of felony or attainted in a Praemunire 3 If a man be attainted of felonie by Outlawrie it is Homicide by iustice for the Iudge before whom he is brought to command him to be put to death and for the sherife to sée executioÌ„ done of him according to the iudgement 2. Ass p. 3. 27. Ass p. 4. 35. H. 6. 58. viz. to hang him But it is felonie and not Homicide by iustice for any other man of his owne authoritie to kill him And for as much as it was doubtfull whether by the lawes of this realme there was any punishment for such as kill or slea any person or persons attainted in or vpon any Praemunire Therefore by a Statute made anÌ„ 5. El. 1. it was enacted St. 5. El. 1. That it shall not be lawfull to any person or persons to slea or kil any person or persons in any manner attainted or hereafter to be attainted of in or vpon any Praemunire by pretence reason or authoritie or force of any word or words thing or things contained or specified in any Statute or Law of Prouision and Praemunire or in any of them Any Law Statute Opinion or Exposition to the contrarie notwithstanding So that to kill any person attainted vpon a Praemunire is felonie and not Homicide by iustice Killing a felon that will not be arrested 4 A shirife a bayly 22. Ass p. 45 Fi. Cor. 261 or any other which hath warrant to arrest a man indicted of Felony may well iustifie the killing of him if he wil not suffer himselfe to be arrested but that he doth stand at his defence in such manner that the officer and his assistants cannot arrest him without killing of him And in this case the officer shal be discharged without the kings pardon for this is homicide by iustice done vpon him who refuseth to yéeld vnto and submit himselfe to the iustice of the Law And euery person as well he that hath no warrant as he that hath may apprehend a Felon and if he wil not yeeld to be arrested but stand to his defence or flie the pursuer may kill him without blame the arrest being for Felony and therein he shall commit homicide by iustice And by the statute of Anno 1. Killing of such as be vnlawfully assembled M. it is established That if any persons St. 1. M. 12. aboue the number of two shall vnlawfully assemble together to the intent with force armes to doe practise or put in vre any of the things in the said statute mentioned then it shall be lawfull to euery Iustice of peace and to euery Shirife Mayor Bailife and other head officer of any Citie or Towne corporat or to any other hauing the Kings commission or letters to raise assemble the Kings subiects in maner of warre to be arraied in such great number as he or they shall thinke méet or able to the intent by violence of strength to suppresse and take the said persons so vnlawfully assembled And if the said persons so vnlawfully assembled or any of theÌ„ shall fortune to be slaine maihemed or hurt in or about the repressing or taking of them then euery such Iustice mayor sherife c. and euery other person hauing authoritie as is aforesaid and euery person and
blood againe If the husband be killed by his wife The husband killed by his wife his sonne shall haue an appeale 33. H 8. Dyer 50 18. Ed. 4.1 And yet if in that case the King doe pardon the wife all treasons the sonne shall be barred of his appeale Appeale of death by the heire 9 If he that was slaine had no wife liuing at the time he was killed then his next heire by the common Lawe if he be male shall haue the appeale But if hée which bringeth the appeale be the next heire male to him that was slaine yet if there be another liuing which is his heire by the common Lawe though not his heire male his appeale shall abate As if he that was slaine had issue a daughter and no sonne 27. As p. 25. Fi. Cor. 384 his brother cannot maintaine an appeale against the offendor though hée be his next heire male because he is not next heire by the common Lawe to him that was slaine but his daughter is And by the same reason a Bastard nor the youngest sonne which doth inherite lands in Borough English A Bastard Heire in Borough English shall not maintaine an appeale because neither of them is heire by the common Lawe It was a custome in olde time if one were found guiltie in an appeale of murder that his wife The maner of a murderers death and all the nearest of his kinne which was murdered 11. H. 4.11 Plo. com 306 should drawe the felon who committed the murder by a long rope to the place of execution An appeale dieth with the Appellant or by his non-suite c. 10 This appeale of the death of the auncester is so tied and affixed to the next heire male at the Common Lawe of him that was slaine that if it be once attached by him although that hée die hanging the suite or be non-suite therein or doe discontinue the suite and that within the yéere 38. H. 6.13 9. H. 7.5 16. H. 7.15 yet the appeale is extinct for euer because it is but a personall action and not auncestrell for he that was slaine could not haue maintained it and therefore being but personall it doth die with the person of the appellant But it is otherwise if the appeale were not attached by the heire during his life 11. H. 4.11 â—0 H. 6.46 but that hée died before hée brought his appeale or died in the life of his auncester that was killed In that case hée which is next heire male liuing shall haue the appeale 9. H. 7.5 Stamf. fo 59 11 If the eldest sonne before the appeale commenced and within the the yeare doth release the appeale and then dieth The heire doth release and die the second sonne and euery other which claimeth as heire to the partie slaine shall bée barred thereby 16. H. 7.15 38. H. 6.13 12 If the eldest sonne doe bring an appeale and hath iudgement Recouery and death before execution and before execution of the offendor dieth his heire shall not haue execution for if he should he is to haue it as heire to him that recouered and not as heire to the partie slaine which cannot be for hée that demaundeth reuenge of his auncestors death must make himselfe immediate heire to the same auncestor which was slaine or otherwise his sute shall not be allowed which the heire of the eldest sonne in this case cannot doe 13 If the eldest sonne after the title of appeale accrued vnto him The eldest sonne disabling himselfe or during the life of his auncester that was slaine doe disable himselfe by attainder of felonie or by being a Monke a Priest or mayhemed by the Defendant Fitz. Cor. 235.322 or by any other cause So that by such disabilitie hee cannot haue an appeale yet the second sonne shall not haue it 14 If the eldest sonne doth kill his father or his mother Killing father mother brother or wife the second sonne shall haue an appeale against him Fi. Cor. 459. And if there be thrée brethren and the middlemost killeth the elder brother the youngest brother shall haue an appeale against him And yet in the foresaide cases hée that bringeth the appeale 18. Ed. 4.1 33. H. 8. Dyer 50. is not heire to him that is slaine And if the husband doe kill his wife his sonne shall haue an appeale against him 1. H. 4.6 Littl. vill 15 If the Lord doe kill his Villaine the heire of him that was slaine The Lord killeth his villaine may haue an appeale against his Lord notwithstanding that the Plaintifs in the appeale is villaine to the Defendant for the villaines heire doth not sue for the recouerie of lands goods or liberty from the Lord but onely for a lawfull reuenge of his auncesters death And if the villaines heire should not haue an appeale in this case the said offence should remaine vnpunished by appeale for none other may pursue it 41. As p. 14. 45. Ed. 3.25 27. Ed. 3.83 Kel fol. 120 32. As p. 8. 16 An Infant An Infant within the age of twenty and one yeares may haue an appeale of the death of his auncester and in like sort hée may haue any maner of appeale But notwithstanding the plea shall remaine to be tried vntill he come to his full age of one and twentie yeares for that in this case the Defendant cannot wage battell against him Attamen quaere A man of 70. yeares of age 17 A man of the age of thrée score and tenne yeares may haue an appeale of the death of his auncestour Fi. Cor. 385 and in like sort may haue any manner of appeale and yet being of that age hée shall put the Defendant from waging of battell with him Disabilities to bring an appeale 18 If the Plaintife which ought to sue the Appeale be attainted of treason or felonie or a Monke or a Priest or mayhemed by the Defendant Fi. Cor. 32â— he shall not haue an appeale Disabilities in the appellant 19 A man that is not of perfect memorie or that is deafe and dumbe Britton or a Lazar or a foole naturall shall not haue an appeale of death nor any other appeale For battell cannot be waged against any of them euery of them being vnperfect to performe the same Pleading that the appellant hath an elder brother 20 If one brother doe bring an appeale of the death of his auncestor 7. Ed. 4. 15 it is no plea for the appellée to say that the said auncestor at the time of his death and after the Writ purchased had an elder brother named B. to whom the appeale is giuen and not to him that is plaintife for it may be that the same B. was his brother of the halfe bloud And therefore the surest way is to begin his plea with the father of him that was slaine as to say that such a man tooke to
an appeale or an indictment then the matter commeth to be tried betwéene the King and him or the appellant and him whether he be guiltie Triall of the plea Not guiltie or not If it be in an appeale it may be tried by Verdict or by Battell as the appellée will sauing in certaine Cases But vpon an Indictment there is no triall by battell nor otherwise sauing onely by verdict In an Indictment of treason or felonie against one of the Péeres of the Realme the triall is by his Péeres which manner of triall in an appeale is not allowable The arraignment of a Peere of the Realme 2 When a Péere of the Realme 1. H. 4. 1. 13. H. 8. 13. 10 Ed. 4. 6. and Lord of the parliament is to be arraigned vpon any treason or felonie whereof he is indicted and whereunto he hath pleaded Not guiltie the King by his Letters patents shall assigne some great and sage Lord of the parliament to be high Steward of England for the day of his arraignement who before the same day shall make a precept to his Serieant at Armes that is appointed to serue him during the time of his Commission to warne to appeare before him eightéene or twentie Lords of the parliament vpon the same day And then at the day appointed when the high Steward shall be set vnder the cloth of Estate vpon the arraignement of the prisoner and hath caused his Commission to be read the same Serieant shall returne his precept and thereupon the Lords shall be called and when they haue appeared and be set in their places the Constable of the Tower shall be called to bring his prisoner into the Court who then shall bring the prisoner to the Barre And then the high Steward shall declare vnto the prisoner the cause why the King hath assembled thither those Lords and him and perswade him to answer without feare And then hée shall cause the Clerke of the Crowne to reade his Indictment vnto him and to aske him if hée be guiltie or not whereunto when hée hath aunswered Not guiltie the Clerke of the Crowne shall aske him how he will be tried and then he will say by God by his Péeres And then the K. Serieants and Atturney will giue Euidence against him whereunto when the prisoner hath made answer the Constable shall be commaunded to retire the prisoner from the Barre to some other place while the Lords doe secretly conferre together in the Court and then the Lords shall rise out of their places and consult among themselues and what they affirme shall be done vpon their honours without any othe to be ministred vnto them And when they all or the greatest part of them be agréed they shall returne to their places and sit downe And then the high Steward shall aske of the yongest Lord by himselfe if he that is arraigned be guilty or not of the offence whereof he is arraigned and then of the yongest next him and so of the residue one by one vntill he hath asked them all and euery Lord shall answer by himselfe And then the high Steward shall send for the prisoner againe who shall be led to the Barre to whom the high Steward shal reherse the verdict of the Péeres and giue iudgement accordingly But if an Earle the sonne and heire apparant of a Duke or a Lord the sonne and heire apparant of a Marques or Earle 38. H. 8. Br. Treason 2 be indicted of high treason he shall be tried by Knights and Gentlemen and not by Péeres for he is not an Earle by Creation but by Natiuitie But if he be of dignity by creation and a Lord of the Parliament hee shall be tried by his Peeres 3 The foresaid manner of Triall séemeth to be appointed by the Statute of Magna Charta St. 9. H. 3. 29. which hath ordained That no frée man shall be taken or imprisoned or disseised of his fréehold liberties or frée customes nor shall be outlawed banished or by any meanes brought to destruction Neither wée will passe or sit in iudgement vpon him but by the lawfull iudgement of his Péeres or by the lawe of the Realme We will not sell deny or deferre iustice or right to any It appeareth by this statute of Magna Charta By whom Péeres appealed shal be tried that a Péere of the Realme shall be tried by his Péeres onely in case where he is indicted at the Kings suite of treason or felony for the words of the statute be we will not passe or sit in iudgement vpon him but by his Péeres 10. Ed. 4. 6 But if an appeale of murder or other felony be sued by any common person against a Péere of the Realme he shall be tried by common persons and not by his Péeres And because there was no mention made in the said statute of Magna Charta how women Ladies of great estate because of their husbands Péeres of the Realme married or sole viz. Duchesses Countesses or Baronesses should be put to answer nor before what Iudges they should be iudged vpon indictments of treasons or felonies by them committed and for that the saide statute of Magna Charta doth onely make mention of a man Therefore by a statute made Anno 20. H. 6. 9. St. 20. H. 6. 9 it was enacted By whom ladies shal be tried That such Ladies of great estate viz. Duchesses Countesses and Baronesses which shall be indicted of any treason or felony by them committed whether they be married or sole shall be brought to their answer and put to answer and iudged before such Iudges and Péeres of the realme as Péeres of the realme should be if they were indicted or impeached of such treasons or felonies committed 4 None of the foresaid statutes haue béene put in practise to extend to Bishops Bishops though they enioy the name of Lords of the parliament for they haue that name of Bishops in respect of their office or function and not in respect of their nobilitie neither haue they places in parliament in respect of their nobilitie but in regard of their possessions being ancient Baronies annexed to their dignities If a Péere of the Realme be indicted of treason or felonie he may be thereupon arraigned in parliament Arraignment in parliament if it shall please the King 10. E. 4. 6 and then the Lords spirituall shall make one Procurator for them for that by the Cannon lawe they cannot condemne any man to death A Bishop was arraigned in the Kings Bench and not by any Lords of parliament for that hée came to the parliament by summons and departed without licence 3. E. 3. 19 and because this was an offence as well to the King as to the Péeres and the King may comemnce a suite where he please for a trespas done to him therefore this was accepted a lawfull indictment though the complaint was made in an inferiour Court for an offence done in an higher
nothing for that they be discharged of their charge and seruices which they did hold by which was as much as they receiued of the tenant perauaile And if they held of the King by lesse rent than their tenant perauaile held of them they shall haue the surplusage of that which was holden of them of the king by the way of petition Fitz. Assise 124. Fitz. Petition 19. And if the king doe not kéepe the land so escheated vnto him in his hands but will assure it to another hée must reuiue the tenure in the Mesne Lord to hold of them of whom it was holden before the attainder It appeareth by the statute of Praerogatiua Regis cap. 12. That the Kings and whole Court of Parliaments meaning was at that time when it was published and established by Parliament which were the Prerogatiues royall annexed to the Crowne of England by the common law That of such lands as did escheat to the King the seruice of the Lord of the fée should be reserued for the words of the Statute bee these viz. St. 17. Ed. 2. 12. The King shall haue escheat of the lands of Normans to whose sée soeuer they belong Sauing the seruice appertayning to the chiefe Lordes of the same Fée And King Henrie the third gaue the Escheates of Normans landes to bee holden of the chiefe Lordes of the Fee by Seruices and Customs due and accustomed thereunto Some of which Normans dwelling in Normandie at that time had lands in England and were subiects to the King of England and did forsake their obedience to the King of England and became subiects to the K. of Fraunce the King of Englands enemie and therby did forfeit those lands which they had in England by the common law and they did escheat to the king 48 In Petit Treason Who shal haue the forf in petit treason and felony and Felony the king shal not haue the escheat of the offendors land vnlesse it be holden immediatly of him but the king shal haue the profits of the said offendors land by the space of a yeare and a day and the land shall be wasted and destroyed in the houses woods and gardeins and in all things belonging to the same and then it shall bee deliuered to the chiefe Lord of the fée of whom the same land is immediatly holden And yet in some cases the King shall haue the forfeiture of the land of him which doth commit Petit Treason or Felonie though the land be holden of others and not of him St. 17. E. 2. 14. as it appeareth by the Statute of Praerogatiua Regis which hath ordained That the king shall haue the escheates of lands of Archbishops and Bishops fréeholders when such tenants be attainted of Felony committed in time of vacation whilest their temporalties were in the Kings hands to bestow in what sort it shall please him Sauing to such Prelats the seruice that to them is due and accustomed And therefore sauing in the cases aforesaid the mesne Lords of whom the lands be immediatly holden shall haue their escheats of their fréeholders lands that haue committed Petit Treason or Felonie which land after the King hath hath had the yere day and wast thereof they must haue deliuered vnto them out of the kings hands by suing out of a writ S. Br. 39. 49 If any stranger The Lords remedy for lands escheated vnto him or other sauing the King doth intrude into that land whereof the felon attainted was seised at the time of the felony committed the immediat Lord of the fée of whom the same land is holden may enter vpon him and put him out or else he may haue his writ of Escheat against him In the which writ he must rehearse the iudgement giuen against the person attainted viz. if he were attainted by outlawrie to alledge Eo quod praedictus A. feloniam fecit pro qua vtlagatus fuit and if he were attainted by abiuration to say Pro qua regnum nostrum abiurauit and if he were attainted by confession or verdict to say Pro qua suspensus fuit and if hee doe alledge one of those iudgements Fitz. Escheat 14. Fitz. Escheat 8. Fitz. Escheat 6. in the stead of another his writ shall abate And yet he néed not rehearse the manner of the felonie in his writ nor in his count but generally that he committed felonie And though there be error in the iudgement yet the Lord shall haue a writ of Escheat and the tenant shall not falsifie the iudgement by the errour 46. E. 3. 4. 50 Island escheat to the auncestor The heirs remedie for land escheated to his auncestor because his tenant was attainted of felonie and the auncestor dyeth before he doth bring his writ of Escheat or doth enter In this case the heire may haue a writ of Escheat and suppose that the partie attainted did hold of his auncestor Fitz. Escheat 17. 51 If a lease of land be made for the terme of life reseruing to the lessor a rent and the lessor payeth his seruices to the chiefe Lord and then the lessor is attainted of felonie Where the Lord shall haue his writ of Escheat and where he may enter and after the tenant for terme of life dyeth In this case the Lord paramount may haue a writ of escheat of the land for the rent which was reserued vpon the lease doth come in stead of the land and so in the consturction of law he died seised of the land But if no rent had béen reserued the Lord might haue entred into the land as escheated vnto him 6. H. 7. 9. but could not haue recouered it by a writ of Escheat no more than if his tenant being disseised had bin attainted of felony in which case his only remedy is to enter The forme of a 〈◊〉 of Escheat 52 This is the forme of the writ of Escheat Rex vicecomiti B. salutem Praecipe A. quod iuste sine dilatione reddat B. decem acras terrae cum pertinentijs in N. quas C de eò tenuit quae ad ipsum B. reuerti debent tanquam Escaeta sua eò quod praedict ' C. feloniam fecit pro qua suspensus fuit vt dicitur Vel pro qua vtlagatus fuit vt dicitur vel pro qua regnum abiurauit vt dicitur Et nisi c. And though the indictment was executed in other maner than is rehearsed in the writ yet the writ shall not abate Register fo 165. as if he were Decapitatus non suspensus for the execution of the iudgement is not material so that he had such a iudgement for the action is true though the writ be not true The K. remedie for land escheated to him 53 In all cases of felony if the king ought to haue the escheat he must haue an office found for him before he can enter for vntill the office found the king hath but a
doth acquite himselfe either at the appellants suit or at the Kings suit This suit of the K. is alwaies intended vpon an appeale when the def is arraigned vpon an appeale after that the appellant hath declared in his appeale and is Nonsute for if the def were acquite at the kings suit vpō an indictment of the same Felony yet he shall recouer no dammages And the manner how he shall recouer dammages being acquite at the kings suit doth somewhat vary from recouering of dammages at the parties suit for when it is at the kings suit he shall not recouer his dammages though he be acquite vntill he hath sued a Scire facias against the appellant to bring him into the Court againe being out of the Court before by his Nonsute But if he be acquit at the appellants suit he shall haue his iudgement to recouer dammages without suing of any further Proces And if a woman that is appellant be Nonsute and after doth take a husband Fit Damag 77. the Scire facias shall bée awarded against the wife onely B. What Iustices may inflict the penalty vpon the appellant 8 And though the foresaid statute of West 2. hath prouided St. 13. E. 1. 12 That the Iustices before whom the said appeale shal be heard and determined shall punish the appellant by a yeares imprisonment that punishment cannot be inflicted by the Iust of Nisi prius and yet by the statute of Anno 14. H. 6. St. 14. H. 6. 1 the Iustices of Nisi prius haue power to giue iudgement in Treason and Felony tried before them and that as well where the defendant is acquite as where he is attainted But yet they be not such Iustices as this statute doth meane 2. 3. P. M. Dy. 120. 14. E. 4. 14. 22. E. 4. 18. For that all the plea of Appeale was not heard before them but a parcell viz. the triall onely The dammages for seueral persons assessed seuerally 9 And whereas the said statute of West 2. would haue the Iustices in assessing of dammages for the defendant in an appeale St. 13. E. 1. 1◠to haue respect to his imprisonment arrest slander Therefore in an appeale brought against diuers if they be all acquite the dammages shal be taxed seuerally that is to say 8. H. 5. 6. Fi. Dam̄ 77. euery of the defendants shall haue his dammages taxed by himselfe for it may bée that one hath cause to recouer more then the other as if one were appealed as principall and the other as accessory or that the one were a gentleman or a man of greater estate and the other of a meaner degrée But yet this Recouery of dammages must be intended in one who is by the law enabled to recouer dammages for if an appeale be brought against a woman couert onely Fi. Cor. 276. without her husband as it must be vnles the husband committed felony with his wife the wife shall not recouer dammages though she be acquite And yet if the appeale be brought against the husband and wife together they be both acquite Fitz. Iudg. 108. then the dammages shal be seuerally taxed that is to say the husband shall recouer for his owne imprisonment and the husband and wife shall recouer iointly for the imprisonment of the wife St. 13. E. 1. 12 10 Though the foresaid statute of West 2. doth ordaine Where the appellant shall pay a fine to the king That the appellant shall be grieuously fined to the king yet that is to be intended where the appellant shall yéeld dammages to the defendant 9. H. 5. 1 for if the case be such as that the appellant shall not render dammages to the def then he shall not pay a fine to the K. but shal be amerced only as where an appeale doth abate by misnaming the appellant shal be only amerced And yet if the appellant be Nonsute after declaration 41. Ass p. 8. he shal pay a fine to the king and the Court will award proces against him for the same fine and though the defendant be after acquite at the kings suit by which meanes he shal recouer dammages against the appellant yet the appellant shall not pay a new fine to the king for that he hath paied it before And if the defendant be found guilty when he is tryed at the kings suit the appellant hath no remedy to recouer the fine which he hath paied before for by the common Law the plaintife in an appeale should haue paied a fine for his Nonsute which is the cause that a fine shal be paied by the appellant presently vpon his Nonsute St. 13. E. 1. 12 11 And for that the words of the said statute of West 2. be In what case inquiry shal be of the abettors If the appellants be not able to recompence the dammages inquiry shal be made by whose abetment the appeale was commenced by those words it is to be gathered that if dammages be not to be recouered against the appellant there shall neuer any inquiry be made of the abettors as in the cases aforesaid And where the words of the statute be If the appellant be not able to recompence the dammages it is intended all the dammages for if the appellant be sufficient to render part of the dammages 8. H. 5. 6. 8. Ed. 4. 3. but not the whole inquiry shal be made of the abettors and they shall pay the residue St. 13. E. 1. 12 12 The foresaid statute doth ordaine That inquiry shal be made of the abettors if the appellée do desire it so that the Court of Office ought not to inquire thereof but at the appellees request And if an appeale be brought against two and one of them is acquit by verdict if the Court do inquire of the abettors at the request of the same defendant and the Enquest doth find that there be no abettors and after the other defendant is arraigned and also acquite and if he do request also that inquiry may be made of the abettors the verdict of the former Enquest wherunto he was not priuy neither against which he shall haue any remedy being but an Enquest of Office shall not bind him but according to the words of the said statute inquiry shall be made againe at his request of the abettors for though it be commonly inquired of the abettors by the same Iury which doth trie the def yet their inquiry therein is but an Enquest of office for if they do find abettors the abettors when they doe appeare may trauerse all that the Enquest hath found As if they haue found that the appellant was not sufficient What pleas the abettors may plead or that such a man or such a one were abettors 8. Ed. 4. 3. because they that be supposed abettors may say by protestation not confessing the felonie for their plea that the appellant is sufficient or that they were no abettors for