to the Bayliffes sometimes to the Justices in Eyre sometimes to certaine persons named and sometimes to persons not named as to Bayliffes Justices and Sheriffes And every Plaintiffe used to have a Commission to his Judge by the Writ Patent aforesaid And now may Justices Sheriffs and their Clerks forge Writs thorough draw loose amend or empaire them without any prosecuting or punishment because the Writ are made close through abuse of the Law By that Seale only is jurisdiction grantable to all Plaintiffes without difficulty and the Chancellour is chargeable by his oath of allegiance to make such Writs and that hee do not delay or deny justice nor a remediall Writ to any one CHAP. IIII. SECT 4. Jurisdiction is a power to declare the Law THat power God gave to Moses and that power they have now who hold his place upon earth as the Pope and the Emperour and under them the King now hath this power in his Realme The King by reason of his dignity maketh his Justices in divers degrees and appoinâ—eth to them jurisdiction and that in divers manners sometimes certaine especially as in Commissions of lesse Assizes sometimes in certaine generally as it is of Commissions of Justices in Eyre and of the Chiese Justices of Pleas before the king and of Justices of the Bench to whom jurisdiction is given to heare and determine Fines not determined the grand Assizes the transations of Pleas and the rights of the King and of the Queen and of his Fees and the words of the Kings Writs whether they be named generally or specially Besides the Barons of the Exchequer have Jurisdiction over receivers and the Kings Bayliffes and of Alienations of Lands and rights belonging to the King and to the right of his Crowne Sometimes jurisdiction is given to Sheriffes for the defaults of others as appeareth in the Writ of Right where it is sayd That if he do not right that the Sheriffe of the County shall do it Sometimes to those who have the Returne of Writs Returnables Sometimes jurisdiction is given to the Justices of the Beach by removing of the Pleas out of the Counties before the sayd Justices and sometimes to Record the Pleas holden in meane Courts without Writs before the same Justices of the Bench But as those Records ought not to availe the Plaintiffes if not after judgement given that the Pleers be Returnable untill after their judgements And as the Pleas moved upon the Writs are to be remanded into the Lords Courts where the Lords have not failed to do right In like manner are the Pleas removed by Pone returnable in the Counties in case where the parties never appeared in Court for to Plead To the office of chiefe Justices it belongeth to redresle and punish the tortious judgements and the wrongs and the errours of other Justices and by Writ to cause to come before the King the proceedings and the Records with the originall Writs and before such Justices are all Letters Pleadable returnable and to be ended wherein mention is made before the King himselfe and the Writs not Pleadable nor Returnable before the King are returnable into the Chancery And also it belongeth to their office to heare and determine all plaints made of personall wrongs within twelve myles of the Kings house and to deliver Goals and the prisoners from thence who are to be delivered and to determine whatsoever is determinable by Justices in Eyre more oâ— lesse according to the nature of their commission On the other side there is a kinde of jurisdiction which is called Arbitrary which is not ordinary nor assigned as is such which is by the assent of the parties Of Jurisdiction commeth Judgement which hath many significations In the one judgement is as much to say as absolutions from offence In another sence as sentence which sometimes soundeth well as of discharge or acquittance from punishment and sometimes ill as Excomengment and in another sence as the end of the Plea and the end of jurisdiction Jurisdiction assigned may be for a time or for ever For a time as in some exception dilatory where the Action reviveth for ever as by a definitive sentence upon the Action Judgements vary according to the difference of offences In like offences neverthelesse there are the like Judgements For the mortall offences according to the warrant of the old Testament were assoiled by death For in the old Testament it is found That God commanded Moses that he should not suffer Felons to live But before more is to be spoken of punishments it is to see by what introduction offenders and contumacious persons are compellable to appeare in Court and by what judgments CHAP. IIII. SECT 4. Defaults punishable DEfaults are punishable many wayes In appeals of Felony they are punishable by Outlawry which judgement is such that after that any one hath been solemnly called and demanded to appeare to the Kings peace at three severall Counties for felony and he commeth not that from thence forward hee is holden for a Woolfe and is called Wolfshead because the Woolfe is a beast hated of all people and from thence forward it is lawfull for any one to kill him as it is a Woolfe whereof the custome was to bring the heads to the chiefe place of the County or of the Franchise and according to Law for every head of an Outlaw to have halfe a marke and such Fugitives Outlawes forfeited for their contempts the Realm Countrey friends and whatsoever belonged to the peace and all manner of rights which they ever had or could have by any Title not only as to themselves but to their heires for ever Also all confederations of Homages of alliance of affinity of service of oathes and all maner of obligations betwixt the Outlawes and others were broken severed and defeated by such judgement And all manner of Grants Rents and Contracts and all manner of Actions which they had against any manner of persons were void not only from the time of judgement but from the time of the Felony for which such judgement was given and such persons could never againe resort to answer the Felony if the Processe of Outlawry were not faulty if not by the great mercy and favour of the King Weomen were not plevisibles and put in dozens as men but were waves CHAP. IIII. SECT 5. Defaults IN personall Actions venialls defaules used to be punished after this manner The Defendants were distrained to the value of the demand afterwards they were to heare their judgements for their defaults and for default after default judgement was given for the Plaintiffe This usage was changed in the time of King Hen. the first That no Freeman was not to be destrained by his body for an action personall veniall so long as he had Lands In which case the judgement by default was of force till the time of King Hen. the third That the Plaintiffe should recover his seifure of the Land to hold the fame in demeasure
one of the houshold sueth another of the houshold and the Plaintiffe be put from his service depending the Suit the other shall shew the same and abate the Writ but quere if it be so if in case the Defendant be removed out of service c. The Coroner of the Marshalsey shall fit with the Coroner of the Country upon the death of a man and if the Plea may be determined before the King remove out of the Virge it shall be otherwise it shall be at the Common Law The Kings Bench. THere is another Court of high Authority called the Kings Bench and the Iudges of that Court have Authority to enquire of heare and determine Pleas and things touching the Crowne as High Treason Murder Man-slaughter Robberies Felonies at the Common Law and by Statute Law Mayhems Trespasses Burglaries and all deceits and falsities whatsoever but they have not authority to hold Plea betwixt Party and Party by originall Writ but in speciall cases They have power to proceed in and determine Indictments and Presentments taken within any County within the Realme where the Kings Writ runneth if it be certified by Certiorare or be delivery under the hands of the Iustices of the Peace or other Iustices before whom the Indictments or Presentments be whether it be of Treason Felony forcible entre Ryot or any other thing against the Peace and they have Authority to reverse Iudgements given in the Common Pleas by a Writ of Errour or before Iustices of Assize and in Liberties and Franchises but not in London for a Writ of Errour of a Iudgement given before the Sheriffes of London shall be reversed before the Major in the Hustings And erronious Iudgements given before the Major in London shall be reversed at St. Martins before speciall Commissioners assigned to that purpose and thereupon a Writ of Errour shall be directed to the Major to have the Record and proceedings thereof and the Record shall be certified by the Recorder c. And it is said that if an erronious Iudgement be given in Ireland it shall be reversed in the Kings Bench by a Writ of Errour for that in Ireland the Lawes of England are used And if an erronious Iudgement be given in the Cinque Ports it shall be reversed in the Kings Bench and the Writ shall be directed to the Warden of the Cinque Ports and he shall returne the Writ and the Record c. The King may have a Formdon in the Kings Bench Debt Detinue and every other Action and a Quere impedit at his pleasure And a common Person may bring an Action of trespasse Quare vi ermis in the Kings Bench and Actions for forging of false Deeds maintenance Conspiracy Actions of deceit upon the case or supposing any falsity and deceit where the King shall have a Fine c. And note that there are some Actions upon the case which shall be sued in the Kings Bench and some not as an Action upon the case against one supposing that the Defendant hath sold Land to the Plaintiffe for a certaine summe of Money and that he covenanted to infeoffe him by such a day and not by any Deed c. Or to build a house such a day and did not doe it e. such actions shall be brought in in the same Court but there are other Actions upon the case which shall not be brought in the Kings Bench as if a Horse be stollen out of the common Inne an Action upon the case lyeth against the Hosteler but not in the Kings Bench as it is said And so it is where a man is so bounden to keepe his fire that the same hurt not his Neighbours houses c. And note that the chiefe Iustice of the Kings Bench is made by Writ and not by Patent and it is to this effect Rex dilecto fidel fuo I Fitz-Iames Saltem Quia volumus quodvos sitis capital Iusticiar noster ad placita corem nobis tenenda vobis mandamus qnod officio illi intendatis but he shall be sworne by the Chancell or of England before he take upon him his office The other Iustices of the same Court are made by Patent viz. by these words Constituimus c. unwn justitiorum nostr ad placita corum no bis tenenda habend occupand officium illud quam diu nobis placuerit And if a King maketh a Iudge to hold and enjoy the said Office by himselfe or his sufficient Deputy for life the grant is void as to the Deputy and if the grant be to him and his Assignees he cannot make an Assignee c. The Common Pleas. ANd note there is another Court called the Common Pleas which Court hath jurisdiction to hold Common Pleas as well personall Pleas as reall or any other Precipe quod reddant of Lands or Tenements c of Debt Detinue Accompt and other personall Actions and they have power to hold Plea of any of those Actions which may be brought in the Kings Bench as Actions of Maintenance Conspiracy Forgery of false Deeds and Actions upon the case and trespasse against the Peace of such Actions wherein the King ought to have a Fine and also of Attaints but they have not power to hold Pleas of Appeales of Murder Rape Felony Mayhem nor to enquire of them nor of Riots And it is said That one may Sue the Peace against another before the Iustices of the Common Pleas and if the Party be in the Hall or in the Place or within their View they may send the Warden of the Fleet to bring the party before the Iustices to finde Sureties or else commit him to the Fleet and the reason why they may so doe is that good order and the Peace be kept about the Court but the Iustices have not power to award Processe to the Sheriffe to Arrest the party to appeare in the Court where the Common Plea is but it is otherwise of the Kings Bench as it is said c. And it is said That the Iustices of the Common Pleas have jurisdiction in some things which touch the Crown and to enquire and hold Plea of some felony and also of misprision and of deceit done within the Court and within the Record thereof And if one imbesell a Pannell after the Enquest passed and Iudgement given in the Common Pleas by which the Iudgement is reversable by Errour for want of that Pannell the Iustices of the Common Pleas have power to enquire of the embeselment of the Pannell by 12. of the Officers and Atturnies of the same Court and they shall be sworn before the Iustices to enquire of that default and if they endite the embesselors they shall be Arraigned thereupon and shall be compelled to answer thereunto as other Felons c. and if they be attainted they shall forfeit their goods and chattels tamen quaere c. And if one be condemned in Debt or trespasse in the Common Pleas and he be in the Hall the Iustices
Ports and such places which have Counsans of Pleas and also in Court Barons in which Courts is Iustice done according to Law c. And although they of the Cinque Ports ought to be empleaded of their Lands within the jurisdiction of the Cinque Ports yet that holdeth onely where the Tenant sheweth the same and taketh advantage thereof if he be impleaded in the Kings Courts of things which are within that jurisdiction but if the Tenant be sued in the Common Pleas for Lands within the Cinque Ports if the demandant doth recover by default or if the Tenant appeare and plead any matter which is found against him so that the demandant hath judgement for to recover the Land that judgement shall bind him for ever c. But the Tenant might have alleadged That the Land was within the Cinque Ports and by such Plea the Kings Courts should be outed of the jurisdiction c. And so it is of Lands within an ancient demeasne if a Writ be brought thereof in the Common Pleas if the Tenant appeareth and pleadeth and doth not take exception to the jurisdiction and the Plea be found against him so that the demandant recovereth the Tenant shall not reverse the judgement by a Writ of Errour because the Tenant might have taken exception to the jurisdiction of the Court and it should have been allowed c. But yet the Lord may reverse that judgement by a Writ of deceit and shall make the Land ancient demeasne as it was before c. And if one hath Counsans of Pleas in a Towne or in a Mannor and a Writ is brought in the Common Pleas of the same Land and the Tenant pleadeth and judgement is given against him the recovery is good for it is within the power of the King and the Writ of the Common Pleas doth take place there and if the Bayliffe or Lord doth not demand Cognusans the judgement is good But in another Action the Bayliffe shall have Cognusans for that the nature of the Lard is not changed and so see that where a man hath counsans of Plea c. it ought to be demanded by the Bayliffe or the Lord and the Tenant shall not demand the same if he be impleaded in the Kings Court but of the ancient demeasne there it behoveth the Tenant to shew the same and plead to the jurisdiction c. if he will have advantage thereof c. And so note that in the Cinque Ports there is such a liberty that the Lands and Tenements are pleadable there before the Barons c. and yet if one be impleaded at the Common Law of Lands within the Cinque Ports the Barons shall not have Counsans of the Plea but the Tenant may plead the same to the jurisdiction in abatement of the Writ c. The Court Baron NOte also that there is another Court which is called Court Baron in which Court the Suitors are the Judges and not the Steward and they hold plea of Contracts within the jurisdiction c. and yet it is said by some That the Defendant shall not shew that the Contract was made out of the jurisdiction and pray that the Plaintiffe be examined as in a Court of Pipowder The Judges of the Court Baron have Authority to hold plea before them of Debt upon Contracts or Detinue but not of detinue of Charters nor Actions of debt upon a judgement in a Court of Record but otherwise I thinke it is of a recovery in the same Court nor shall they hold plea of Maintenance forgery of false Deeds of deceit not of Decies tantum not of pleas of Accompts for they have not authority to assigne Auditors They shall not hold plea of Debt above the summe of forty shillings unlesse it be by prescription and they shall not hold plea of Free-hold by plaint but by a Writ of right they may But if a judgement be given of Free-hold upon a plaint it is said it is good untill it be reversed by a Writ of false judgement tamen quaere c. And note for what Suit a man shall be judged in a Court Baron and it is said That it is where a man is seised of Lands in Fee-simple and which he holdeth by service of Suit at the Lords Mannour that Suit is properly Suit-service and for such Suit he shall be judged in a Court Baron and for no other Suit as it is said c. And quaere also when erronious judgements are given how they shall be reversed viz. when by Writ of false judgement and when by a Writ of Errour And some say That in all Courts where the party might remove the plea by a Recordare upon a judgement given in such Courts a Writ of false judgement lyeth as in ancient Demeasne Court Baron County Court and Hundred but in other Courts which are of Record the plea shall be removed by a Certiorare and upon judgement given in such Courts which are of Record it shall be reversed by a Writ of Errour c. And if a man recovereth in a Court of Record by erronious judgement and Sueth not Execution some say That a Writ of Errour lyeth and the party shall have a Supersedeas if he will prey the same but if a man hath judgement in a Court Baron and taketh not forth Execution no Writ of false judgement lyeth Quaere the reason thereof and what the Law is in that case And note that sometimes the Sheriffe is Judge as in Reddisseisin Wast and Admeasurement and the Processe shall be served by the Baily as is said And note that the Sheriffe is an Officer â—o the Kings Court to execute the Processe thereof yet sometimes the Coroner is the Officer to the Court where defect is found in the Sheriffe c. so that he cannot by Law indifferently execute the Processe as for divers apparent causes yet if the Sheriffe dyeth the Processe shall not goe to the Coroner but shall stay till another Sheriffe is chosen c. And because the Sheriffe is an Officer appointed by the Law to attend the Kings Courts a man shall not take an Averment against the returne of the Sheriffe directly and the reasâ—n is because where Justice ought to be ministred and executed those who have the Government of the Law ought to repose trust and confidence in some person and if every one might averre against that which the Sheriffe doth then Justice should not be executed but should for ever be delayed c. The meanes and the remedy how a man may come to his due and to that which is wrongfully kept from him and that is by plea and this word is generall and hath divers effects implyed therein and may be divided into divers branches viz. Into pleas of the Crowne as appeales of Death Robbery Rape Felony and divers other things c. and into Actions reall whereby Lands Tenements Rents and other hereditaments are demanded as Writs of right Formed on c. Or Actions
is reproveable and distinguishable according as hath been said before The Statute to have view of Lands is but a wrongfull delay of the right of the Plaintiffes for the View appeareth sufficient by the Certificate of the Summons upon what Tenements the Tenants are summoned The Statute which forbiddeth that no Officer of the Court take any presentment of any Church not other thing which is depending in Plea or in debate is not kept Reprehensions upon the Statute of Gloucesier 16. E. 1. THe Statutes to recover Damages in Pleas of possession enacted at Gloucester or else where and of the horrible damages in waste are reproveable for that the Law giveth one no more then is his demand and therefore it behooveth that the damages be mentioned in the Writs if damages shall be awarded for a Judge cannot exceed the points of his Commission and so it would be needfull to use it according to the first Ordinance of Writs And the Statute of Tenements alliened of Lands in prejudice of others is reproveable for the remedy ought to be such as of Guardians allienors to the dis-inherison of the right Heires The Statute of Trespasse pleaded in Counties is reproveable for want of distinction for small Trespasses Debts Covenants broken and such other kinds not exceeding forty shillings Suitors have power to heare and determine without Writs by warrant of jurisdiction Ordinary and by Writs granted afterwards for Sheriffes have more jurisdiction in their Writs vicontiell then Justices of the Bench by the Pone And as to the recovery of twenty shillings or more in right of Essoigne of the Kings service not warranted the Statute is reproveable for that Essoigne might be cast where the Defendant would make default by the adverse Party and so he should have advantage of his malice The Statute which forbiddeth the abatement of Appeales is not observed The Statute which awardeth an innocent man to remaine in Prison or to have no manner of punishment for necessary Man-slaughter or by mischance where no offence is found is but an abusion The Statutes making mention of London ought to extend commonly throughout the whole Realme CHAP. V. SECT 6. The reprehensions of Circumspectè agates An. 13. E. 1. THe first point which saith That the Kings prohibition holds not in correction of mortall offences where a pecuniary paine is enjoyneable by Ordinaries is founded upon open errour and usage to enjoyne a pecuniary paine for a mortall offence notwithstanding to destroy the King jurisdiction The other points to compell the Parishioners by corrections to enclose Church-yards to offer to give Mortuaries Monies for Consessions Chalices Lights Holy Vestments and other adornement of Churche are more grounded upon interest then amendment of soules and note that after that they are offered to God that they are so spirituall that they are to be expended but in Almes and spiritually for they are never to be converted to Lay uses And then if any Parishioner for the hurt of the Parson of the Church keopeth back his Tithes or stealeth them away or doth not pay them duly or fully the same is not punishable by a pecuniary paine but by a corporall punishment For the Excommunicate no pecuniall paine was to be for restitution or satisfaction no more then of a Pagan or a Jew and if they doe demand a pecuniary paine there the Kings Prohibition lyeth and much more in the demand of Pensions or of damages of Trespasse or of defamation but of Pleas of correction where one Pleades onely Pro salute anima the Kings prohibition lyeth not CHAP. V. SECT 7. THe new Statute of Debts is contrary to Law as it appeareth in the Chapter of Contracts for every imprisonment of the body of a man is an offence if not for tortious Judgement and the Law will not suffer any Obligation or vicious Contract by intermixture of offence and therefore it was to be avoided as grounded upon an offence for no honest man ought to agree to such a Contract which causeth him to offend or to be punished Againe it is contrary to the Great Charter which enacteth that no man be taken nor imprisored if not by the lawfull judgement of his Peeres or by the Law of the Land Here endeth the Mirrour of Justices of the right Lawes of Persons according to the ancient usages of England The end of the fifth Chapter and of the whole Booke FINIS THE BOOKE Called The Diversity of Courts And Their Jurisdictions Written by an unknown Author in the time of King Henry the Eighth in the French Tongue Wherein many necessary and profitable things ate contained Translated out of the French Tongue into English for the use of many By W. H. of Grays Inne Esquire Imprinted at London for Matthew Walbancke and are to be sold at his Shop at Graies Inne gate 1646. The Booke called The diversity of Courts and their Jurisdictions IT is to be understood that the King is the fountaine of Justice and to that purpose ordayneth Judges that Justice be administred to all his Subjects The King himselfe for the excellency of his Person may fit and give Judgement in all Causes personall or reall betwixt Party and Party but he cannot fit in Person in Judgement in any Cause where he himselfe is Party or where the things of his Crowne or Dignity are concerned as upon an Indictment of Treason or upon as appeale of Murder or Felony or upon an Action brought by himselfe as Formdon of Land of which the right is descended to him from a colaterall Ancester or in an Action of Debt by reason of the affection moving him to be favourable to himselfe and therefore he maketh his Iudges to sit and heare such matters in difference and to doe justice to the parties And the place where the Judges sit to minister Justice are called Courts which are of divers kinds and the Judges thereof have severall Authority Of the Court of Marshalsey ANd first the Court of Marshalsey is an ancient Court and made for the well government and ordering of the Kings house for the preservation of the King and his Servants and this Court hath its bounds within which it hath jurisdiction and not without The Iudges of this Court are the Steward and Marshall of the Kings house for in them under the King is the ordering of the houshold c. The title of the Court is Placita Corone aula Hospitii Domini Regis leat coram seneschalle mareschallo hospâ—â—â—i Domini Regis c. And this Court hath power to enquire of Treason Murder and Felony and to take Appeales of them and of Mayhem if they be done within the Virge betwixt persons who are of the Kings house And if one of the houshold Sueth another who is not of the houshold he may plead to the jurisdiction of the Court and if they will not allow of the Plea he shall have a Writ of Errour and the Iudgement shall be reversed in the Kings Bench. And if
at the prayer of the Plaintiffe may send the Warden of the Fleet to bring him before them to satisfie the party the money or otherwise commit him to the Fleet. And when he appeareth and will deny that he is the same person then Quaere what shall be done if the Justices may commit him to the Fleet or not And some say not for that they know him not as Judges but as other men by information of the parties and the Plaintiffe cannot mainetaine that he is the same person because he commeth not in but by information of the party Plaintiffe not by Processe of Law Quaere what is to be done in that case And see another difference betwixt the Judges of the one Bench and of the other for it is said That if the Judges of the Kings Bench doe award Processe in a Formedon a Writ of right or execution of Land recovered in value the Sheriffe ought to execute the Writs although they have not any jurisdiction therein But if the Judges of the Common Pleas will grant Processe of Treason c. out of their place the Sheriffe ought not to execute the Processe for that authority is onely of Common Pleas c. The chiefe Iustice of the Common Pleas is made by Patent viz. by these words Constitutimus iâ—â—â—mcapital Iusticiar nostrum de Coi Banco c. Habendum illud own feodis vadiis regardiis eidem officio debit conâ—suet And the other Iudges of the same Bench are made by Letters Patents c. The Chancery ANd note that the Court of Chancery is a Court of a high nature out of which Court issue all originall Writs and there a man shall traverse Offices and such things and in that Court women who are widowes to the King shall be sworne that they shall not marry without the Kings Licence before the time that they be endowed and it is said That of errour there upon a Patent or a Traverse the same cannot be reversed else where but in Parliament Quaere c. And in that Court a man shall have remedy for that which he hath no remedy at the Common Law and it is called by the common people The Court of Conscience And therefore see of matters in Conscience how the party shall have remedy If a man hath Feoffes to his use and maketh his Will and thereby willeth that his Feoffes should make an estate to I. for terme of his life the remainder to C. in Fee if the said I. will not take the estate what remedy is for him in the remainder in conscience and how he shall helpe himselfe in Chancery c. A man shall have remedy in Chancery for Covenants made without writings if the party have sufficient Witnesses to prove the Covenants and yet he is without remedy at the Common Law c. And for Evidences when a man knowes not the certainty of them nor in what they are contained it is usually to be releeved in Chancery for he is without remedy by the Common Law c. If a man infeoffeth another of certaine Lands to his use and the Feoffee selleth the Land to another if he giveth notice to the Vendee at the time of the sale of the intent of the first Feoffment he is bounden to performe the will of the first Feoffer as it seemeth in the Chancery A man was bounden unto another by Obligation in a certaine summe of money and the Oblgee brought an Action upon the same Deed in another County then where the Obligation was made and had Iudgement to recover and the Obligor in Chancery sued to be releeved and it was surmised that by that forraigne Suit he was outed of diverse Pleas which he might have had if the Action had been brought in the County where the Obligation was made and it was conceived a good matter to releeve him in equity In the Court of Chancery a man shall not be prejudiced by mispleading or for want of forme but according to the truth of the Cause judgement ought to be given according to equity and not Ex rigore juris And note that there are two jurisdictions Ordinary and Absolute Ordinary is as positive Law and Absolute is Omnibus modis quibus veritas sciri poterit If a man be bounden by Obligation unto two men unto the use of one of them and one of them viz. is he to whose use it is not releaseth to the Obligor all Actions so as the Obligation is discharged he to whose use the Obligation was made hath good remedy in Chancery by Subpoena against his companion who released him but against the Obligor it seemeth he hath no remedy for every man is bounden to helpe himselfe and it is lawfull for a man to get a discharge of that which he is charged withall and in danger to others And if a man hath recovered against another debt or damages and he hath paid the same without any Acquittance or without having a release and notwithstanding the party taketh execution against him upon the same Iudgement he shall have no remedy by the Common Law and it was then said by the Chancellor that he shall not have any remedy in equity in this case and if the same should be remedied in equity then every Record should be examined before him and thereby the Common Law overthrowne And if I doe infeoffee one upon trust and the Feoffee doth infeoffee another of the same Land upon trust Quaere if I shall have a Subpoena against the second feoffee but where he is infeoffed bona fide there the first Feoffer is without remedy against the second Feoffee as it seemeth It is said That the Chancellor of England wheresoever he shall be in England hath power to command a man to prison and he shall not be bayled Quaere whether the Iustices of the one Bench or of the other out of their Courts have the same authority or nor The Exchequer THe Court which is commonly called the Exchequer is properly for Accomptants Sheriffes Escheators and the like and there they are compellable to make their Accompts according to the usages and customes of the same Court c. and it seemeth to be a Court which is much for the Kings profit for there all remedies are provided how the debts and duties to the King shall be levyed And in that Court the Barons are Iudges betwixt the King and his Subjects and they are sworne thereunto and Fines Issues and Amercements which are assessed in other of the Kings Courts the estreates shall be made thereof to the Court of Exchequer and there they shall write forth Processe against the parties to answer thereunto and to satisfie the King what is due to him and of divers other matters they have power and authority by reason of their Office c. The Cinque Ports THere are also divers other Courts and inferiour places where Iustice is ministred and in those places they have Iudges as in the Cinque
Exchequer THe Exchequer is a place which was Ordained onely for the Kings Revenew where two Knights two Clerkes and two learned men in the Law are assigned to heare and determine wrongs one to the King and Crowne in right of his Fees and the Franchises and the Accompt of Bayliffes and Receivers of the Kings Monie and of the Administrators of his Goods by the over-sight of one Chiefe who is the Treasurer so England The two Knights usually called two Barons were for to afferre the Amercements of Earls Barons and of the Tenant of Earldomes and Baronies so that none be amerced but by his Peers To this place there was a Seale assigned with a Keeper of it to make Acquittances upon every payment to those who desired them and to seale Writs and Escheates under green Wax issuing from thence for the Kings Revenue In this place there are also Chamberlaines and many other Officers who belong not very much to the Law CHAP. 1. SECT 15. Of inferiour Courts FRom the first Assemblies came Consistories which we now call Courts and that in divers places and in divers manners whereof the Sheriffes held one Monethly or every five week according to the greatnesse or largenesse of the Shires And these Courts are called county-County-Courts where the Judgement is by the Suiters if there be no Writ and is by warrant of Jurisdiction ordinary The other inferiour Courts are the Courts of every Lord of the Fee to the likenesse of Hundred Courts and also in Fayres and Markets where right is to be ministred without delay whether the matter concern the Plaintiffe or Defendant according to the first Ordinances in which Court they have counsans of Debts Covenant broken and of Trespasses and of such small things which passe not forty shilling value and also they have Counsans of Trespasses and forfeitures of the Fees betwixt the Lords Plaintiffes and the Tenants Defendants Et è contra There are other inferiour Courts which the Bayliffes hold in every Hundred from three weekes to three weekes by the Suters of the Free-holders of the Hundred All the Tenants within the Fees are bounden to doe their Suit there and that not for the service of their Persons but for setvice of their Fees But Women Infants within the age of 21. yeeres deafe dumb idiots those who are Indicted or Appealed of any mortall Felony before they be acquitted diseased persons and excommunicated persons are exempted from doing Suâ—t and although it be that such Free-holders may doe Suits at inferiour Courts by their Atturnies neverthelesse the Judgement is not to be given or holden for forraign and if any Plea be removed by Writ of Justities Replegiatie wast or of other nature that enable the Jurisdiction from which the Writ is originally sent and returneable CHAP. 1. SECT 16. Of the Sheriffes â—urnes THe Sheriffes by ancient Ordinances hold severall meeting twice in the yeere in every Hundred where all the Free-holders within the Hundred are â—ound to appeare for the service of their Fees that is to say once after Michaelâ—as and another time after Easter and because Sheriffes to doe this make their Turne of Hundreds such appearances are called the Sheriffes Turnes where it belongeth to Sheriffes to enquire of all personall offences and of all their Circumstance done within those Hundreds and of all wrongs done by the King and Queens Officers and of wrongs done to the King and to the common people according to the points aforesaid in the division of offences All Free-holders within the Hundred are not bounden to appeare at these Courts for King Hen. 3. excused some persons said That it was not needfull that Arch-Bishops Bishops Abbots Priors Earls Barons religious Persons nay such people not other who were exempted to doe Suit at inferiour Courts should appeare in proper person if their appearance were not necessary for some other cause then onely to make their appearance And if any one hath divers Tenements in divers Hundreds his presence is not to be excused notwithstanding the Kings grant CHAP. 1. SECT 17. Of viewes of Franck-pledges OF these first Assemblie it was also Ordained That every Hundred doe make a common meeting once in the yeere not onely of the Free-holders but of all Persons within the Hundred Strangers and Denizens of the age of 12. yeeres and upwards except of Arch-Bishops Bishops Abbots Priors teligious Persons and all Clerkes Earls Barons and Knights Feme Coverts Deafe Dumb Sick Idiots infected Persons and those who are not in any Dozien to enquire of the points aforesaid and of the Articles following and not by villanies nor by women but by the afferment of Free-men at the least for a Villaine cannot indict a Free-man nor any other who is not receiveable to doe Suite in inferiour Courts and therefore it was anciently Ordained that none should remaine in the Realme if he were not in some Decenny and pledge of Free-men it belongeth also to Hundredours once a yeare to shew the Franck-pledges and the Pledgers and therefore are the Viewes called the View of Franck-pledges The Articles are these BY the Oathes you have taken you shall declare whether all they who ought doe appeare or not If all the Free-men of the Hundred or of the Fees be present If all the Franck-pledges have their doziens entire and all those who they have in pledge If all those of the Hundred or of the Fees of the age of 12. yeeres and above have sworn fealty to the King and of the receivers of others wittingly Of all Bloud-sheds of Hue and Cry wrongfully leavied or rightfully leavied and not duely pursued and of the names of the Pursuers of all mortall offences and of their kinds and as well of the Principalls as of the Accessories Of all Exiles Out-lawes Warves and banished Persons returned and who have since received them and of those who have been judged to death or abjured the Realm Of Usarers and of all their goods Of Treasure tâ—ove Wrecks Waifes Estreyes and of every purpresture and encreachment upon the King oâ— upon his Dignity Of all wrongs done by the Kings Officers and others to the common people and of all purprestures in common places in the Land or in the Water or elsewhere Of Boundaries remsved to the common Nusance of the people Of every breach of the Assize of Breed Bear Wine Clothes Weights Measwes Beames Bushels Gallons Fills and Yards and of all false Scales and of those who have used them And of those who have bought by one kind of measure and sold by another kind in deceit of Merchants or buyers Of the disturbers of fâ—aming lawfull Judgements and of the framers of wrongfull Judgements and of the Abbettors and consenters thereunto Of every wrongfull detinue of the body of a mar or other distresse Of every false Judgement given by the View in the other Hundred oâ— in the Fee Of every Fore-stallment done in the common High-way Of wrongfull Replovies and wrongfull Recoâ—sses Of every
outragious Distresse in another Fee or in the Market for a forraign contract Of all Bridges broken and Causies wayes common Bridges and who ought for to repaire hem Of the makers of Cloathes dwelling out of great Towns in places forbidden Of Tanners and Curriers of Leather Of Butchers and who sell unwholsome flesh for that which is sound and of all those who sell corrupt Wine for sound Wine or Beare Ale raw and not well brewed for that which is good and wholsome Of small La eines Of cutters of Purses And of those who suffer people to use any Mysterie for reward or Fee Of Receivers of Thies-boot Of makers and baunters of false Dice Of outragious Tole-takers and of all other deceivers Of all manner of Conspiraters And of all other Articles availeable for the destruction of offenders And the Presentments are to be sealed with the Seales of the Jurours so that none by fraud doe increase or diminish them and that which cannot be redressed there by these Presentments is presentable at the Sheriffes first Turne and those things which the Sheriffes cannot redresse are to be presented by the Sheriffes into the Exchequer All those who are Presented for any offence which is mortall and banished Persons who are returned and their receivers and those who are not in allegiance under the King are to be seised upon and their goods to be seised into the Kings hands And although it be so that the Bailiffe can not heare and determine any Action at the Leete neverthelesse if any one present be grieved by any wrongfull Presentment and complain thereof or if the Bayliffe or Steward have a suspition that the Jurours be in some case perjured by concealing of any offence which is Presentable or of any offender It is lawfull for the Bayliffes or Stewards by twelve more disereet men to enquire of the truth thereof without delay and although that the last Jurours joy that the first are perjured neverthelesse because that no Decenery or Jurour is not attestable with lesse then two Juryes and because the latter Jurie is not taken but ex officio of the Bayliffe and not in the nature of an Attaint the first Jurours are not to be taken Attainted but are onely to be amerced And if any one profer himselfe to sweare fealty to the Kings he is first to be pledged in some Franck-pledgs and put in the Decenety and afierwards sworne to the King and then he is forbidden to offend and common with offenders and he is to be enjoyned to be obedient to his chiefe pledge And to take this Oath in those Views is none exempted who is past the age of 21. yeeres man or woman Clerke nor Lay-man except Alliens Strangers Mossengers or Merchants and those who are in custody At these Viewes of Turnes and viewes of Franck-pledges Essoignes hold where the absence of those who cannot be there is excusable and such Essoignes are adjournable to the next Courts following that the Essoigners have their Warrants The Contents of the Second Chapter OF Actions Of Judges Of Plaintiffes Of Rewards or Fees Of Pleaders or Countees Of Attachments Appeales and to whom Appeale is given Of Goales and Goaters Of Bayles in Appeales Of the Appeale of Majesty Appeale of falsifying Of Appeales of Tredson Of Appeales of burning Of the Appeales of murder Of the Appeales of Robbery and Larcine Of the Appeale of Burglary Of the Appeale of Imprisonment Of the Appeale of Mayhorn Of the Appeale of wounding Of the Appeale of Rape Of reall offences at the Kings Suit Of offences personall at the Kings Suit Of veniall offences and personall Suits Of the Assize of Novel dissesin Of Distresses Of Contracts Of villinage and Neifitie Of Summons Of Essoignes Of Atturnies CHAP. II. CHAP. II. SECT 1. Of Actions WHen it is said that Kings and Princes have the Government and Correction of Offenders with aide of the Prelates and to that intent they are Gods Vicegerant on Earth and to doe the same they have Jurisdiction over the offenders by paines and cheifly those offenders which are under their Jurisdiction neverthelesse Kings cannot not ought not to take notice of the offences of others without Actions of Accusers which well appeareth by the example which God shewed when he was in his Consistory and demanded who was the Accuser of the woman-sinner and because none presented himselfe an Accuser against her to give us a perpetuall example that right Judgement cannot be given without there be three persons at the least viz. a Judge a Plaintiffe and a Defendant God said to the woman-sinner That she should goe in peace or quiet since it belongeth not to a Judge to be both Judge and Plaintiffe and therefore it behooveth to speake of Actions and who are and may be Judges and who Plaintiffes and who Defendants An Action is nothing else but a lawfull demand of right and there are three manner of Actions which have their Introductions by Writs and by Plaints in manner as followeth viz. Personall Reall and Mixt. CHAP. II. SECT 2. Of Judges ALthose who are not forbidden by Law may be Judges To women it is forbidden by Law that they be Judges and thence it is that seme Coverts are exempted to doe Suit in inferiour Courts On the other part a villaine cannot be a Judge by reason of the two estates which are repugnants Persons attainted of false Judgement cannot be Judges nor Infants nor any under the age of 21. yeares nor infected persons nor Ideots nor mad-men nor deafe nor dumbe nor parties in the Pleas nor men excommunicated by the Bishop nor criminall persons for God when he was upon Earth entred into the Consistory where a sinner was to be judgeed to death when God wrote upon the ground and said to the Suiters who came to Judge her Who of you is without sinne and there gave a Judgement as an example to Judges who take upon them every day to Judge the people whereby he taught them That none should take upon themselves so high and noble a â—alling as to sit in the Seate of God to Iudge offenders when they themselves are guilty and Condemnable And those who are not of the Christian Faith cannot be Iudges not those who are out of the King Allegiance next those who have no Commission from the King cannot be Iudges not none whose Authority is repealed not any one after Iudgement is given in the Cause an example thereof appeateth in the Writ of Right Etâ—nist ficeris viceconnes faciat not none after death or the Returne none whose warrant is vicious not any one if his superiout will not have him A Iudge Commissary hath not power to Iudge but according to the points and within the words of his Commission and the originall Writ no more then the Arbitrary Iudge hath power to goe beyond the points of his submission CHAP. 2. SECT 3. PLaintiffes are those who pursue their right against others by plaint All may be Accusers or Plaintiffes
points aforesaid besides the exceptions which are to the person of the Pleader for no man can be a Pleader who cannot be a Plaintiffe or Actor CHAP. II. SECT 6. Of Attachments PErsonall Actions have their Introductions by Attachments of the body reall by Summons and mixt Actions first by Summons and afterwards by Attachments The Law requireth that offenders in case of death have not such mittigation or favour that they be brought or summoned or distreined to appeare in Judgement by taking of their Cattell if the offenders be knowne and notorious and the Plaintiffe pursue them to soone as he may And if any one fly for such offence then according to the Statute of Winchester he was to be followed with Hue and Cry with Horne and Voyce so that all those of one Towne who can are to follow the Felon to the next Towne and if any such Felon be attaint and convict of the felony let him be killed if he cannot be otherwise apprehended But it is otherwise in felonies not knowne for it is not lawfull to kill the offender without his Answer if he may be taken alive And if any one would complaine to have revenge or to drive the offender to the salvation of his Soule let him goe to the Coroner of the place where the offence was done and set forth his complaint there as he will prove it and the Coroner is to cause the same to be distinctly enrolled and if he cause him to record it as murder being corrupted to destroy his Neighbour by his plaint so that he have Judgement the like is to be done to him if he prove not his plaint At the next Court after the Appeale is enrolled it belongeth to such Plaintiffes to recite their Appeales and to finde Sureties to pursue them or to remaine in Prison till they have found Baile and to the Maine-prisors such Plaints are to be delivered by Coroners body for body that they shall pursue their Appelees and to cause them to appeare in Court to receive Justice when they shall be demanded if they doe not prove their Appeales The Personall offences are these Imprisonment Mayhem Wounding Battery Perjury Usury Rescusses Forestallings Breaking of Parkes Resistance of framing lawfull Judgements Executions of false Judgements and all wrongfull offences Carrying away of Treasure trove of Wrecks Waife Estrayes The Attachments of mortall offenders are by their bodies without Sureties and the Attachments of veniall Personall offenders are also by their bodies but yet they are baileable Reall offences are those upon which are grounded Writs of right of Cosinage of Dower of right of Advowson of Entre of Escheate Writs of Quo jure of Formedon and of all Writs feodalls Mixt offerices are those upon which these Writs are framed viz. of Customes and Services of Villinage of Covenant of Homage of rendring Distresses of Mesne and other Acquittances of Escheates and the like and by reason of the mixture of their Introductions they are called Mixt. CHAP. II. SECT 7. Appeales and to whom Appeale is given THe Action of Appeale is not given to all alike but every one is allowed to have his Action of Trespasse to whom any Trespasse is done except such as cannot have any Action at all Every one may have an appeale of Burning to whom the damage is done and the property of the thing burnt doth belong Parents Kinred and Allies used to be admitted to bring Appeales of Murder but the Appeale of the Wife of the killing of her Husband is to be received before all other and yet not of all his Wives but of her onely who lyeth betwixt his Armes which is as much as to say in whose seisage he was murdered for if he had many Wives and all were alive at the time of his murdet neverthelesse she only is admitted to bring the Appeales of all the rest whom he last tooke to be his Wife although in right she be not his Wife and the reason thereof is because it belongeth not to the Temporall Court to try which was his Wife of right and which in Fact and the Appeales of all other are to be suspended the pendant the same Appeale brought After the Appeale of the Wife is the Appeale of the Sonne lawfully begotten of the murder of his Father to be received before all other it is said lawfully begotten because a Bastard is not to be accounted amongst Sons for the Common Law only taketh him to be a Sonne whom the Marriage proveth to be so After the Appeale of the eldest Son the Appeale of the next of blood is used to be received and so from one degree to another in the right Line of Cosinage and if the blood faile in that Line then they of the Collaterall Line are admitted to bring the Appeale or the Kinted where the blood faileth according to the degrees of Consanguinity and Affinity and especially in the Line of the Fathers side but the Appeales of Murder were restrained by King Henry the 1. to the foure next degrees of blood And if any one within the age of 21. yeares doe bring an Appeale the Defendant is not bound to answer so high an Action untill he hath passed that age and therefore such Appeales are to be suspended till both the Parties be of full age if exception in the case be taken to the Nonage Men and Women Clerkes and Lay-men Infants and others of what condition soever they be may bring Appeales except those who are not suffered to bring any Actions and although it be that many doe bring Appeales yet one neverthelesse is admitted to continue and pendant that all the others are to be suspended And in all Cases the Appeales against the Accessories are to be suspended pendant the Appeale against the Principall be it one or many CHAP. II. SECT 8. Of Processe of Exigent in Appeales AT the first County the Coroner is to doe no more but to enter the Pledges who properly are Main-prisors and to Command that such take the Appeales and seize all their Possessions and their goods into the Kings hands as before is said and if they be taken that they be kept till due deliverance be of them and if they be not to be found and the Plaintiffe come at another County and recite his Appeale or Appeales then are such Appelees demandable only by their names and by such names as they are best knowne by that they appeare to Answer the Kings Peace for if any one be Appealed as Son of the Father and is knowne by another Sir-name the Appeale is insufficient and by consequence abatable at the perill of the Plaintiffe and at the third County they are to be demanded in like manner as before at which County Court if the Appelees appeare not not are taken into Main-prise to appear at the next Court Judgement is to be given against them for their contempt by the Coroners and those who doe appeare before Judgement of the Coroner are presently to be delivered
Ex officio to compell them to salvation the King used every seaven yeares to goe through all Shires in his Realme to make enquiry according as before is said further in aide of such Eyres were Coroners Sheriffes Turnes Viewes of Franck-pledges and other Enquests to enquire of those offenders as is said But because some are wrongfully slandered King Henry the 1. Ordained that none should be arrested nor imprisoned for slander of mortall offence before he were thereof endicted by the Oathes of honest men before those who had Authority to take such Indictments and then they were first to be seised upon by their bodies and goods as in Appeales and to be kept in prison till they cleared them of the infamy before the King or his Justices Of the Crime of Majesty in no kind was any Indictment but of Heresie or Romery whereof if any were indicted and brought to Judgement let there be an indictment for the King by some of his people in this manner according to that which is found in the Roles of ancient Kings I say Sebourge there is defamed by good people of the sinne of Heresie because that he of evill Art and beliefe forbidden and by Charmes and Enchantments he tooke from Brighten by name c. the flower of his Alc whereby he lost the sale thereof so that Judgement be not given of lesse then three persons or thus Molling who is there defamed by good people that such a day he denied his Baptisme and caused himselfe to be circumcised and became a Iew or a Saracen or offered or sacrificed to Mahomet in contempt of God to the Damnation of his Soule and this offence he did feloniously c. and so in every like Case for the King and if he will deny it I am ready to prove it upon him for the King as to the King it belongeth to doe that is to say according as an Infant within age Of falsifying thus I say for the King that Mimunde there is defamed c. for that he such a day c. falsifyed the Kings Seale or his Money in such a kind or such c. Of Trespasses Indictments now cease of Burnings thus I say c. that Seabright there is defamed c. for that at such a day c. he set a fire such a house or goods c. Of Murder thus I say c. that such a one with such a weapon struck Agole in such a part of his body by which stroke he is killed c. The degrees of Accessories are to be shewed after the Principalls according to their right Of Larcine in this manner I say that Cutbert there c. robbed such a man knowne or unknowne of his Horse or of other kind of goods c. or feloniously stole or was consenting to the offence of such Theeves knowne or of unknowne Theeves by taking of Theef-hoot which is a recept of Larcine which he wittingly took to suffer such a one to passe or to stop Suit or wrongfully to procure his pardon CHAP. II. Sect. 23. Of Offences personall at the Kings Suit A Personall offence is divived into two branches whereof the one extendeth to Persons and the other to Goods The Veniall offence which extends to Persons is divideable into great offences and small offences and although the King have Counsans of all offences yet he reserveth only the ordering of all grosse offences to himself and the Counsance of the lesser he leaves to all those men who have Courts within their Demesnes and upon this division of offences hath the King established the Peace so as such Lords Bayliffs have the ordering of the Peace for smal offences The Veniall offences Personall are these Perjury when one telleth a lye against the King and Perjury of his Officers The mortall offences not declared feloniously as Imprisonment Mayheim Wounding Battery are to be shewed without Appeales Allienation of old treasure sound Diffesin Reddisseisin and many others the declarations of Personall offences venialls infamatories are to be declared at the Kings Suit in this manner I say for our Lord the King that Y there is Perjured and lyed against the King that whereas the said I was the Kings Chancellour and was sworne that he should not sell not deny right not remediall Writ to any Plaintiffe the said Y such a day c. and sold to such a one a Writ of Attaint or other remediall Writ and would not grant it him for lesse then halfe a marke c. Or thus whereas he was one of his Iudges assigned and was sworne to doe Iustice c. he in this manner in such a Court gave Iudgement or awarded against such a Party or released such a Party or usurped such Iurisdiction upon the King or made himselfe Iudge Coroner or Sheriffe Bayliffe or other Minister of the Kings without Warrant or thus whereas he was Channcellor of the Exchequer c. he forbad to give an Acquittance of so much as such a one had paid of the Kings debt under the Exchequer Seale or delayed to give an Acquittance from such a day till such a day and would not give an Acquittance unlesse he bought it for so much or thus for that he holdeth Plea against the Kings forbiding or in prejudice of the King and his Crowne and the rather seeing it belongeth not to any Ecclesiasticall Judge to hold secular Pleas but only of Testamentary and of Matrimony or thus he disturbed the giving of Judgement or surceased so to do justice by negligence or by his consent In this manner are the Presentments to be made at the Kings Suit of Personall wrongs of all his Ministers great and small and also against all others not his Ministers of all wrongs done to the King by those who have sworne fealty to him CHAP. II. SECT 24. Of Veniall Trespasses and Personall Suits TO those who have cause of Action and will not pursue revenge according to their rights by Actions of Trespasse to recover damages for the Trespasses neverthelesse ye are to distinguish where the Trespasse is done to the person of a man and where to his goods And if to a mans person every one may have an Action to whom the Trespasse is done except those who can maintaine no Action without their Guardians And if to the goods then ye are to distinguish whether to his proper goods or to the goods which he hath with others in common And if to the proper goods then to distinguish if proper to a man or belonging to another thing as to the Crowne or to any Church If to a man then to distinguish if to a man free of himselfe or to a man who is in ward And if to a man free of himselfe he hath severall Actions and if proper to any other in ward the Action belongeth to the Guardian If to a man in ward the Action belongeth to the Guardian or to the next of Kin Parent Affine or Alley of his name to the use of
him who is in ward Of goods which are in common no severall Action lyeth and therefore of goods which belongs to men of Religion the Action belongeth to the Soveraigne of the house in his name for him and his Covent or in his owne name and the name of him who is in his custody if the Action be an Action personall veniall And there is a difference betwixt Actions which are to cause death and pardonable Actions for as much as to mortall Actions the Suit is to be brought first against the Principalls and afterwards against the Accessories and in Veniall Actions of personall Trespasses all ought to be comprehended in the Plaint in common the Principalls the Commanders the Conspirators and the Accessories for as much as a man shall not recover severall damages by severall plaints thereof neverthelesse none of the Accessories is to plead to the Action before the Principall hath pleaded or be condemned for his Contempt Personall Trespasses used to be heard and determined in inferiour Courts of Lords of Fees and then the offenders were Attachable by their bodies and they used to keepe them and bring them to Judgement if they were not bayled without offending the Law The remediall Writ of Trespasse requireth bayâ—e to them which whosoever could not finde was to remaine in Custody without his Keeper because they were bound to acquit their Pledgers And if any neverthelesse become Pledges of their owne will in such cases they are to be taken but if they are thereby endamaged by Non-suit of the party they had no recovery against the principall Surety a pursuing may be in divers manners sometimes by Pledges as it is of those who can finde them sometimes by trusting them as it is in case of Forraigners and poore who have not ability to finde Pledges and sometimes by the bodies of the Plaintiffes as it is of Appealees who have no other Suâ—eâ—ies but the foure walls of the Prison And for the durenesse which is used to be done to the bodies of offenders in personall offences or veniall King Henry the 1. Ordained That they should arrest them first by their bodies untill they justifie themselves by Bayle and if they be not found and if they doe not discharge their Bayle they are then to be distreyned by their Land to the value of the demand and if they then make default their Lands are to be delivered over to the Plaintiffes untill they have made satisfaction by a reasonable Extent if before they have not acquitted themselves by Law Of Pledges note that those are Pledges for pursuing who the Plaints affirme and those are Pledges who reprieve any other thing besides the body of a man for they are not properly Pledges but Maine-prisors because they suppose that those plevifables are delivered to them by Bayle for the body The ordinary Declaration of Veniall Plaints begins in this forme I shew unto you who am here that E. who is there wrongfully delayed his Action by a false essoigne which he cast such a day in such a place c. to the great damage of the Plaintiffe And of Trespasses done against the Kings Peace it is easie to shew and of Trespasses done against Lords or Bayliffes and in hatted of false Plaints King Henry the Ordained that audience were forbidden to Plaintiffes in veniall Actions and that none was bounden to answer such Actions if they had not present proofe of a lawfull Suit And there is such a difference between a Criminall Action in pleading and a Veniall that if a Serjeant put these words scil feloniously as a Felon c. in Declaration of Veniall Actions the Declaration are vicious and abateable because that no Judge hath power by a Veniall Plaint to determine felony and in the same manner is the Count vicious and abateable where the Count is upon the right of property and upon the plea of Possession Et è contra and there are some Actions wherein no Declaration or Count as in Disseisin Redisseisin Certifications of Assize false Judgements and Attaints CHAP. II. SECT 25. Of Assize of Novell Disseisin and Reddisseisin AMongst other personall Trespasses it is not to be forgotten to make mention of Dissesin of which it is needfull first to see to the Title why it is called Assize of Novell Dissesin An Assize in one Case is nothing else but a Cession of the Justice in another case it is an Ordinance of Certainty where nothing could be more or lesse then right for the great evills which is used to be procured in witnessing and the great delaies which were in the Examinations Exceptions and Attestations Randolphus De Glanvile Ordained this certaine Assize that Recognitions should be sworne by 12. Jurours of the next Neighbours and so this establishment was called Assize In the third case Assize is taken properly for an Action in foure manner of Pleas Possessories Scil. Novel Dissesins Moâ—ldamcester Darreis Presentment Juris utrum But such Assize are called Petit Assizes to make a difference from Grand Assizes for the Law concerning Fees is grounded upon two right of Possession and property And as the Grand Assize serveth to the right of property so the Petit Assize serveth to the right of Possession and because such Petzi Assizes are to be taken of the Counties where the Fees are by the Statute of King Edward called such Actions Assizes either for the generall Cession of the Justices and of others or from the propernames of such Actions It is called Novell to put a difference from those which are ancient for anciently Kings used to goe over the Shires to enquire heare and determine offences and to redresse the wrongs there and that which was not brought in such Eyres of personall Trespasses before remained to the Judgement of God alone and afterwards by reason of the multitude of offences and that Kings could not doe all by themselves therefore they sent their Commissaries who now are called Justices in Eyre who have not power to decree and determine a personall offence but for a thing brought and not determined in the last Eyre Then for as much as the Disseisin or the personall Action was brought before the Eyre the Action or Disseisin was ancient but if the Disseisin be done since the last Eyre then it is a Novell Disseisin Disseisin is a personall Trespasse of a wrongfull putting one out of possession it is said wrongfull to put a difference from rightfull which is no offence as if I take from my Wife or my Villain or from another who is my Ward that which is my owne or if you take from me that which is mine I take it from you againe I doe not offend for I am warranted so to doe by the Law of Nature seeing this usage is common to Men Beasts Fishes Fowles and other earthly Creature but I cannot doe so afterward for if I take from you forcibly any thing whereof you have had the peaceable possession I doe disseise you and I doe
wrong to the King when I disseise him of his right or use force where I ought to use Judgement On the other side that which is taken from me by the rightfull Judgement of any Judge Ordinary or Arbitraty is not taken wrongfully from me Wrong is here taken as well for deforcement or disturbance as for ejection Deforcement as if another entereth into anothers Tenement when the rightfull owner is at the Market or else where and at his returne cannot enter therein but is kept out and hindred so to doe Disturbance is as if one disturbe me wrongfully to use my seisin which I have peaceably had and the same may be done three waies 1 As when one driveth away a distresse so that I cannot distreyne in the Tenement lyable to my distresse whereof I have had seisin before 2 Another is where one doth Repleive his distresse by the Sheriffe or the Hundred wrongfully 3 As if one distreyne me so outragiously that I cannot manure Plow or the my Land duely in which Case it maketh one an outragious distreyner to disseise or for to eject the Tenant as if any one eject me out of my Tenement whereof I have had peaceable possession by discent of Inheritance or other lawfull title to the possession Note that all right is in two kinds either in right of possession or in right of property and therefore the right of property is not so determinable by this Assize as is the knowne possession or as that which altogether favoureth of a possessory right The remedy of Disseisins hold not of moveable goods nor of any thing which falleth not into Inheritance as Land Tenement Rent Advowson of a Church and a house of Religion Franchises and the Appurtenances and such other rights whether they are holden perpetually in Fee or for terme of life or yeares according to the Contract as well as the Land morgaged to such a one and his Heires untill so much be paid to such a Tenant or his Heires Eiection of a terme of yeares falleth into the Assize which sometimes commeth by Lease or Baylement or Loane and sometimes by right of Wardship by the Nonage of some Heire and to the recoverer it belongeth to hold them according to the Contracts Villinage in some Case falleth into this Assize as to Free-tenants who are ejected or disturbed to continue their seisin of lawfull Presentments and whereof a Bargaine is made betwixt any Doner and any Purchaser although that the Purchaser cannot present living the Clerke of the Doner instituted into the Church the Title neverthelesse of Contracts barreth not altogether the Donee so that afterwards he cannot present against the forme of the Contract and if he doe the Doner falleth into this Assize and the Bishop who gave the Institution to him who is not presented by him to whom the right of presentation doth belong in his owne name Into this Assize also fall Donors and Purchasers who make vicious Contracts of Lands and Possessions as also it is of Guardians and of Farmers who Lease their Lands for a longer time then their terme endureth in prejudice of the Lord of the Fee or of him to whom the Reversion belongeth as it is of those Lessors who have Fee rayle On the other side fall into offence those the Kings Officers and others who disseise a man or a Corporation of their Franchises whereof they have the Inheritance by lawfull Title if not through the default abuse or negligence of those or of their Bayliffes to whom the Franchises belong Into this offence also fall all Atturnies who yeeld up the Inheritance or Freehold of their Clyents in Judgement and the Justices also who yeeld to them and the Tenants also for it behoveth not Atturnies to lose their Clyents rights but it behoveth them to defend them till a rightfull Judgement be given Into this offence fall all those who commit any wast exile or destruction in Lands as that which is not justifiable by Law as those who assigne over Lands to others where in the Feoffments to themselves or their Ancestors there is mentioned but of Heires only and that may be two waies viz. to Heires generall or to speciall Heires named as in Fee tayle or not named as in Franck-marriages This Action all Persons may bring Men Women Clerkes and Laymen Infants and others of what condition soever they be who are not forbidden by the Law It is forbidden to Villaines to bring this Action without their Lord for as much as they are in the Custody of their Lords In the same manner to Feme Coverts and to others who are in Ward and to those who were never Tenants in their owne names but in the name of the Lord The Law also denyeth the Suit to those who have withdrawne themselves from the same action in Judgement or have released or quit-claimed their right And note that Retrahere sub-trahere is not all one Retrahere doth acquit a man from those things which are in his Writ or in his Action but neither the one not the other can utterly barre him if he doe not openly declare the same but subtrahere withdraw his Action every Plaintiffe may doe either by himselfe or his Atturney whether he be present in Court or absent and although it be that one will not pursue his Action yet he doth not so barre himselfe nor withdraw himselfe but that he may have a new Writ and a new Plaint if he doe not openly in Judgement say that he withdraweth his Action these remedies hold against a Disseisor and where there are many against all those who appeare in the force or in the aide CHAP. II. SECT 26. Of Distresses ANy Action rightfully grounded upon a Personall Trespasse accrueth to people wrongfully distreyned which is called a Distresse and because that none can cover his Robbery or his Latcine by Distresse it is 1 to be knowne what is the division of Distresses 2 Who may distreyne 3 When and of what things a Repleive lyeth A Repleive is nothing else but a reasonable distresse A reasonable distresse is to the value of the thing in demand without any other fault for no outragious distresse is termed lawfull There are two manner of Distresses a dead distresse as of Corne Wine and other such Chattels and a live distresse as of a Man a Beast and of such like things No man can distreyne who is not warranted so to doe by Law or by some other speciall deed 1 By the Law as for Damage feasance and for Debts and Contracts of Forraigners for Forraigners are distreynable by their moveable goods and summonable because they are not free Tenants in the places where they are destreyned and for as well a Debt recovered as any other and so for Amercements of damages and Arrerages of Accompt or other thing 2 By Deed as if you grant me any Annuity and doe grant me to distreyne in the Lands for the Arrerages of the same or other service and binde
Summonable none is to be summoned for a personall offence not any one who is not a Free-holder 3 A man is not summonable in all places for no man is summonable nor bounden to receive Summons out of the Fee of the Party who causeth the Summons nor elsewhere but in the Mannour appendant to such a Court where he ought to Answer nor in all places of the Mannour but only at the Tenement in demand 4 How farre one is summonable not out of the Fee of the Court where one is to answer 5 At whose charges at the charges of those who are the first causers of the Summons except in Juries and Enquests taken ex officio for no Free-man is compelable to travell and appeare in Judgements at his owne charges notwithstanding that the Law requireth that every Tenant obey the Summons of his Lord. 6 How often one is summonable but once in one cause neverthelesse re-summoned holdeth place in some case 7 Who may and ought to be Summonors no man is compellable to be a Summonor if he will not agree to it neverthelesse all those may be Summonors who will that are not forbidden by the Law Women not Villaines nor infants nor any infamous Person not any one who is not a Free holder cannot be a Summoner 8 It is a reasonable Summons when it is testified by two loyall free Witnesses Neighbours to the Person or to the House or Tenement contained in the Writ with warning given of the day place party Judge of the Cause and a reasonable respite at least of fifteen daies to provide his Answer and to appeare in Judgement In Juries neverthelesse nor Enquests there need not be so full time or respite given CHAP. II. SECT 30. Of Essoignes ESsoigne is an excuse of a default by any hinderance in comming to the Court and lyeth as well for the Plaintiffe as for the Defendant The Law of every Essoigne is That the cause of the hinderance be enrolled with the name of the Essoigner so that if the diverse Party or his Atturney or Essoignor will traverse the Cause he is to be received so to doe that if he be found false then that the Essoigne be turned to a default All those may be Essoigned who are not forbidden by Law uo Defendant in personall Actions not any after default can be Essoigned not any present in Court nor doth Essoigne lye in a Scire facias nor in a Venire facias nor in a Recordari facias toquelam nor in Admeasurement of Pasture nor after the Parties have joyned issue in Judgement though the Jury appeare not nor in case where the Plaintiffe hath not found Surety to pursue his Action nor where one hath Atturney in Court if both be not Essoigned nor where the Summons is not testified nor after an Essoigne not warranted nor to him who was not named in the Writ or in the Plaint except in Warranties nor any one who is re-summoned in Mort-dauncester and Darrein presentment nor when the day is not come nor where the Essoigner commeth too late nor any one whose adversary is dead or any of his Parceners nor he who is adjourned from day to day nor the Kings Officer as Officer nor he to whom it is commanded that he appeare if he please No Essoigne is justifiable if it be not orderly cast nor is it allowed to Infants within age nor to any who is in custody nor to many having one right if the Cause be not divers All may be Essoigners who the Law forbiddeth not it is forbidden to Women to Infants to Villaires and to all who are in Custody to Mad-men to Idiots to Excommunicated Persons to the Judges and uo the Parties in the Cause Essoigners at other times not warranted 〈◊〉 â—â—ainted of false delayes to criminall Persons and to those who are not of the Christian Faith or in the Kings Alleagiance it is forbidden that they be Essoigners There are chiefly two kinds of Essoignes the one of the Kings service the other of hinderance The first is dividable either into the service of the King of Heaven or of the King on Earth of the King of Heaven in three manners 1 Either for the generall passage of all to the Land of c. and this Essoigne is not otherwise adjournable but that the Parties goe without day and are to appeare againe by Re-summons of the Plaintiffes at the returne of the Defendant This Essoigne is not allowable to Plaintiffes nor to the Defendant reasonably Summoned before his going from his house in a personall action nor in other but in a Plea which toucheth Inheritance nor but in a Writ of Right Patent but not of Dower nor of Burgage The other Essoigne of the service of the King of Heaven is of a common Pilgrimage beyond Sea towards the Holy Land and this lasts for a yeare this holds not buâ— according as the other The third of a Pilgrimage beyond Sea as to Rome or to Saint James De compostella and takes place for halfe a yeare and these Essoignees are to appeare the next Courts following the Termes adjourned After Re-summons holdeth place the common Essoigne De mal venier and also after the terme of Adjournment but this common Essoigne never holds place before the Essoignes before said The Essoigne of the King on Earths service is in two manners 1 The one is of those who serve as Souldiers as Messengers or as Ministers and this Essoigne is not respited but from Court to Court or the common day to the example of a common Essoigne if it be not warranted at the next Court by the Kings Writ it is to be turned to a default 2 The other is of those who serve the King by Tenure of their Land for the defence of the Realme and he hath no day But the Plaintiffe is with out day and the Plea is to be re-continued in the same Estate when his Adversary shall be returned These latter Essoignes are allowable in Pleas summonable to Plaintiffes and Defendants except in Dower Vnde nihil habet Quare impedat Darrein presentment nor to Women nor to Infants nor to Idiots nor to Deaf nor to Dumbe nor Mad-men nor to any in custody nor to any who is not free of himself nor to any Atturney as Atturney nor where the Essoigner acknowledgeth the Cause in Judgement to be false nor after any Cape nor after distresse in the Land After the Essoignes of the Kings service lyeth an Essoigne of Malo veniendi but not è conâ—â—a The Essoigne of disturbance or hinderance is dividable either of sicknesse or of some other hinderance as of those who comming towards the Court are taken by the Kings enemies and so hindered or by Waters Bridges or enemies discovered or by Tempests or other reasonable disturbance so that they have not power to appeare at the day The Essoigne of hinderance and sicknesse is divideable either of languishing which is called De malo lecti and that holdeth place
for a yeare or of sicknesse in the Journey and that holds not but to the example of a common Essoigne in these Essoignes of hinderance are Essoignes De malo veniendi This Essoigne lyeth after every Summons and generall Râ—-summons upon Pleas except to Jurours and those who are summoned for the common-wealth But of Adjournments it is to distinguish for in the Eyre of Justices the Adjournement is for three daies or foure at the most or lesse according as the places are â—eare or containe and to this Essoigne is respited fifteen daies at the least The Essoigne of sicknesse in passage lyeth before the Essoigne De malo lecti and also after the yeare of the languishing and it lyeth before appearance and after appearance except in foure Assizes and where it lyeth in Actions it holdeth in Warranties This common Essoigne is not allowable in the cases aforesaid but once after the Parties have joyned issue not after the Parties have agreed to appeare without Essoigne nor where a Bishop is commanded that he have or cause such a Person to appeare nor there where many claime by one right or are Tenants of the same right nor to a man and his Wife not to all the paeceners but if a man dyeth without Heire after the Writ purchased and brought the Writ is thereby abateable because at the day of the date the Plaintiffe had no Action against the other parceners which are alive as to that of the Party This common Essoigne lyeth as well for Infants where they are impleaded of their Lands as for men of full age And as the same is allowed to the Tenant so is it warranted where no sicknesse is adjudged this Essoigne is allowable from day to day according to the common Adjournments in Writs of right till the sicknesse be Judged if the Tenant rise not before from his sicknesse neverthelesse none can doe it in such a case if not with the Plaintiffes leave or by the command of the King if the Plaintiffe will not give him leave This Essoigne holdeth in the Writ of Droit Potent sent to the Lord of the Mannour and in a Writ of Droit close of Lands holden of the Kings in Capite and in the Writ of Customes and Services after that the deforceor hath pleaded and said that the Batraile or the Grand Assize may be joyned The Essoigne De malo Lecti is in Court for two yeares when the sicknesse turnes to weaknesse this Essoinge lyeth not for the Plaintiffe and after the sicknesse adjudged it is adjournable by a yeare of respite to the Court of London Weakenesse lyeth not in any Writ of right after appearance but where Battaile may be joyned or the Grand Assize This Essoigne De malo Lecti was never allowable to any Atturney nor to any but those who had a Warrant before the common Essoigne cast by the Tenant nor to any after the weakenesse adjudged nor without â—â—sing nor in Justiâ—â—es nor in the Writs De quo jure nor De rationabilibus divisis nor Quo warranto nor Customes and Services before that the Court be certified that Battaile might be joyned or the grand Assize This Essoigne of De malo veniendi is called De malo villa and this lyeth in case where one appeareth the first day in Judgement and is suddenly taken with sicknesse in the Town that he cannot the next day appeare in Court This Essoigne may be cast the second day by one the third day by another and the fourth day by a third in which case the Judge ought to receive the Atturnies of those who are sicke but this Essoigne lyeth not but there where the Essoigne De molo lecti lyeth CHAP. II. SECT 31. Of Atturnies BEfore a Plea put into Court by Essoignes by Attachment or by appearance of the Parties none is to be received by Atturney no more then a Plea is removeable out of Court into a higher Court where the Plaint or the Writ is not brought nor any is to be received by Atturney in a Plea which was nor in a Plea which shall be but onely in a Plea which is Pendant in the County Court or else-where or is brought by the Kings Writ and this Plea be afterwards removed into a higher Court. By this removing the Atturney is not removed for no Atturney is removeable unlesse he whose Atturney is come into the Court in proper person and remove him if not in case where one hath generall Atturnies for generall Atturnies may appoint speciall and remove them nor any can receive Atturnies after the Plea brought but the King or other warranted by a speciall Writ if not in the presence of the parties All may be Atturnies which the Law will permit Women may not be Atturnies nor Infants nor Villaines nor any who are in Custody or any other who is not free of himselfe nor any who is criminous nor any who are not sworne to the King nor any in any personall Action nor in an Accompt nor in Nativo habendo Plaintiffes notwithstanding they have Atturnies in personall Actions are not to appeare not answer in Judgement by no Atturney but he disseiseth his Clyent when he doth it The Contents of the Third Chapter OF Exceptions What is Exception and the division and order of excepting Exceptions Dillatories Of Exception of Clergy Exception of Bigamy Exception of the power of the Judge Exception of time Exception of place Exception to the person of the Plaintiffe Exception of Prison and of Ward Exception of Summons Exception of vicious Counts Exception of Approvers Excedtion to Indictments Pleas to Treason Pleas to Bâ—â—ning Pleas to Murder To Larcine To Burglary Of Rape Of imprisonment Of Mayhem and â—ounding Juramentum Duelli The order of Battaile Exception of Personall Trespasse Of Purprestures Of Treasontrove Of Wrecks Of Vsury Of Driving Of Obligation Of Attaint Of Oathes Homage Fealty annexed to Homage Common Oathes Of finall Accords CHAP. III. CHAP. III. Sect. 1. Of Exceptions IT behoveth the Defendant to Answer the Plaintiffes Declaration and because the people commonly know not all the Exceptions in Pleadings Countors are necessary who know how to advance and defend their Clyents Causes according to the rules of Law and the Costoms of the Realm and the more needfull are they to defend them in Indictments and Appeales of Felony then in personall or veniall Causes and the better to helpe our memory which every day inclineth to forgetsulnesse it is necessary to shew what is an Exception and the division of it and the order of Excepting or Pleading for some account them guilty who Plead not or Plead ill or not sufficiently for example If any one Vouch one to warranty and Judgement passe if he tell not the yeare or before what Judges the Judgement passed it is as if he had said nothing and so of other Cases and although a Plea be requisire neverthelesse every one is not received to plead for some are admitted to Plead without Tutors
in all Actions and some not but in Felonies Every one may Answer without a Tutor who is not forbidden by the Law The Law forbiddeth Married women to Answer without their Husbands but then we are to put a difference in the Cases for if she be within the age of one and twenty yeares she is not admitted to Plead in any Case without her Husband but in Case where her dis-inheriting or that which doth amount to as much doth appeare by the malice or negligence of her Husband if she be of full age then she shall so Anawer alone in cases of death and Felony and so it is of men within the order of Religion and of Villaines and of all those who are in Custody and are not delivered CHAP. III. SECT 2. What Exception is and the order of Exception or Plea APlea or Exception is a thing alleadged for Answer either to delay or barre the Action And there are two manner of Exceptions Dillatories and Peremptories The order to Plead is such that the Peremptory Plea is in the highest degree or the Dillatory may have a recourse to the Peremptory but not è contra And of Dillatories some are principall and some are secondary and from the secondaries there is no recourse to the principalls and according to their degrees are they put in partly to helpe out remembrance And some Exceptions are in Counts in Replications and Re-joynders and so forth untill the truth be cleared in the proceedings of the Pleas whereby one may surely come to give cleare Judgements Voucher to warranty lyeth not in personall Actions although that averrements by Record and Minements and Witneffes availeth CHAP. III. SECT 3. Exceptions Dillatories THere are many Dillatory Exceptions whereof the first is to the Judge and that many waies one unto the power of the Judge and that may be in two kinds by reason of the two kinds of Jurisdictions or because the King or his Iudge Deligate hath no Power or Counsance in the Cause as it is of the person of a Clerke by reason of the Priviledges of the Church or because the ordinary Iudge hath not power or Counsans of a thing done out of his Iurisdiction nor any one within a Franchise of a thing done in guildable nor Kings nor those of one Country or of one Land of things done in another Land or Country CHAP. III. SECT 4 Of Exception of Clergy FOr the Priviledge of Clergy as if a Clerke be ordered in Court before a Lay Iudge to Answer to an Action for a personall Trespasse and especially in a Case criminall and mortall Plead that he is a Clerke the Iudge hath no further Counsans of the Cause for the Church is so enfranchised that no Lay Iudge can have Iurisdiction over a Clerke though the Clerke will acknowledge him for his Iudge and in such a case he is without delay to be delivered to his Ordinary Neverthelesse to give Actions to Plaintiffes against the Accessories in Appeales and Indictments it belongeth to the Iudge Ex officio to enquire by the Oathes of honest men in the presence of the Clerke whether he be guilty or not and if he be 〈◊〉 thereof then he is without delay to be delivered to his Ordinary and the Plaintiffe shall Sue against the Accessories in the Kings Court and in the Spirituall Court against the Clerke and the Clerke after his due Purgation made shall without delay have all his lands and moveables delivered to him CHAP. III. SECT 5. Replication of Bigamy THe Exception of Clergy is sometimes Counterpleadable by a Replication of Bigamy in this manner Sit he ought not to enjoy the benefit of this Priviledge for he hath forfeited the same by the sin of Bigamy as he who hath Married a widow or many wives and note that Matrimony is the lawfull Order of joyning together of a Christian man and woman by their assents and as of the Diety and Humanity of Christ there is made an undissolveable Unity so was Matrimony and according to such Unity was such coupling found to be and therefore none can remaine in that Unity who takes to himselfe a Plurality and of a Plurality ariseth this offence of Bigamy which offence draweth Clerkes nearer the Lay Power And note that Bigamy may be two waies one by a Plurality of 〈◊〉 Vives as he who Marrieth two wives or more the one after the death of the other or out-living the other the other is plurality of Husbands as well as wives as it is of a widow who suffereth her selfe to be Married to another man whether her widowhood came by the death of her Husband or by Divorce and because it belongeth to say in what point a Clerke is Bigamus the Bigamy is triable in the Lay Court if neverthelesse the Jury doubt thereof then the Ordinary is to certifie the same at the Command of the King as in the case of Matrimony when it is denyed On the other side a Clerke is incounterable by other Replications as he is for being a murderer or a notorious lyer or of such a condition as the Church is not to protect him against the Kings Peace CHAP. III. SECT 6. Exception to the Power of the Jadge AGainst the power of the Judge the Defendant may help himself by other Dillatory Pleas in this manner Sir I demand the sight and the hearing of the Commission whereby you claime Juriâ—diction over me and if the Judge doe not deny it or cannot shew it notwithstanding that no Judge Deligate is compelable to shew his power yet may the Party plead thus Sir I appeale from this Commission because it maketh no mention of the Cause for which I was brought to Judgement or not of that point Or because you have no Counsans in such a point or because it is vicious and that may be divers waies as if it be not sealed with the Kings Seale of the Chancery for none is tyed to yeeld obedience according to the Lawes and Customes of the Realme to the Kings Privy Seale or to the Seale of the Exchequer nor unto any other Seale but onely to the Seale which is assigned to be known of the common people and especially in Jurisdictions and Originall Writs if not for the King only Or it may be vicious because the Seale is counterfeited or falsified or because the King is not named in the Writ he not being out of the Kingdome not in Ward or because the Writ containeth Summons in the Action where it is personall or Attachment where the Action is mixt or reall or because the Seale is not fastned to the Parchment but one may remove it and take it from it at his pleasure Or because the Writ was brought too late or too soone Or because it hath rasure or enterlining and diversity of hands and of words or false Latine Or because the Writ is written upon Paper or Parchment which is forbidden Or for default found in the Writ as the omission or transposition of
a word fillable or clause as it is of abatable Writs Or because the King dyed before the Writ was brought or because the Writ is false in in the day of the date or because the Commission requireth the association of one who is not present Or because the Writ was never sealed or because the fact was not done within his Jurisdiction or in a place not there determinable or because the Iudge hath not power or Counsance either of the quality or the quantity of the thing CHAP. III. SECT 7. Exception to the Person of the Judge ALthough the Writ be good and the Power be sufficient yet there holds Dillatory Exceptions to the Person of the Iudge as it is said of such Persons who cannot be Iudges CHAP. III. SECT 8. Exception to the time OTher Dillotories there are of time of place of houres of manners c. And note there are three manner of times exempted from Pleas in which no Patries fit in Courts and give Iudgements whereof two are by Law and the other at the Will of the King One time containeth two Moneths viz. August and September which are assigned to gather 〈◊〉 the fruits of Corne c. The other times containeth the Feasts and the Sundaies which are appointed Feastivalls for the honouring of God and the Saints which Feasts are these 1 The day of the birth of Christ of St. Stephen of St. Silvester and the Epiphany and the Purification of our Lady Easter weeke of the Rogations which containe three daies of the Assention of Pentecost of the Nativity of St. John the Baptist of the twelve Apostles of St Lawrence and of the Assumption of the Mother of God and her Nativity of St. Michael and of all Saints and of St. Martin with all such Feasts which all Bishops hold Feastivalls in their Bishopricks for that they are Canonized besides these the dales of Reliques of the Anunciation of the Mother of God and of her Conception and of the invention of the Crosse And note that whereas God Commanded to keepe holy the Sabbath day it was Ordained after the Resurrection that we keepe holy the Sabbath Daies The third time is forbidden by the Kings Proclamation of Houres may arise Dillatories for after the houre of Noone or in the Night no Plea is to be holden CHAP. III. SECT 9. Exception of the place OF the manner arise Dillatorie for in Riding nor in Walking nor in Tavernes nor else where but in knowne places for a Consistory can any Court be holden CHAP. III. SECT 10. Exception to the Person of the Plaintiffe OTher Exceptions Dillatories arise from the Persons of some Plaintiffes as it is of those Persons who are rebukeable of accusations Other Exceptions Dillatories rise from the Persons of the Pleaders or of the Atturnies or of the Essoigners for none can doe that by his Atturney which himselfe cannor doe nor can any be an Essoigner Atturney or Pleader who may not be a Plaintiffe CHAP. III. SECT 11. Exception of Person and of his Custody OR he may take Exception against his owne Person and say that he is not within the Kings Power or if he be imprisoned for a greater offence or Appealed or Indicted of Crime or of a higher Crime Or he may say that he is not bound to Answer thereunto for as much as he is not brought to Judgement by a right course which willeth that no man may be attached by his body when he is distreyneable by his Lands or other goods if not for a personall offence Or he may say that he is not tyed to Answer to any Action which toucheth losse of life or member or right of property untill he be of the full age of one and twenty yeares or more and there are other Dillatories of the Persons of the Answerers which â—ppearebefore CHAP. III. SECT 12. Exception of Summons IN Pleas of Summons he may say he ought not to Answer because the Plaintiffe holdeth no Suit of Distresse nor hath any other manner of proofe present Or because the Plaintiffe hath not found Sureties to pursue his Plaint or because he was not summoned or not reasonably summoned or that he received the Summons by no Free-man or but by one Freeman Or because he was summoned too late or because he was never summoned what thing to answer to or because he was not summnoned against the Plaintiffe CHAP. III. SECT 13. Exceptions of vicious Couâ—â—â— AS Writs which are vicious are abaâ—â—able so also are vicious Appeales as if the Appeales be not brought within the yeare after the Felony done or not before the Coroner or not in the County where the offence was done or not in a right place or for variance or for Omission or Interuption or because the Plaintiffe is batred against others in the same Appeale Sometimes it happeneth that the thing which is robbed or stolne is found in the possession of a true man against whom the Owner of the property or of the possession frameth his Appeale as he who is a Robber of another in which case there is a difference for if it be found that such a thing was given sold or delivered to him without Coliusion in such case the possessor is acquitted or at least Bayleable untill the next comming of the Iustices and when the Iustices come the first possessor thereof is to be Arraigned and he may shew how it came to him neverthelesse if he would vouch one to warrant it he cannot nor deny the Title of his possession but in the name of Voucher he may say that it came to him by lawfull Title as that he bought it in such a Market or in such a place without mentioning of whom and the Sheriffe is thereupon to cause a Jury to be impannelled and if the Answer be found true then he is acquitted and if not then to be condemned as before as if the Plaintiffe had proved the felony And if any one appeare and justifie the thing to be his he is not to be received as a Party but the Cause is first to be tryed betwixt the two first afterwards he may make the estranger a Party if he will and if the case be that the buying was within a place within a Franchise and the Sheriffe returne that he cannot execute the Writ by reason of the Franchise of such a man or of such a place in such case the Sheriffe is to be Commanded that he forbeare not by reason of the Franchise but that he enter and execute the Writ And if the Possessor saith That he came to the thing from a man certaine and he be present and will maintaine the same without Collusion he is to be admitted thereunto and the other is to be discharged and if he deny the Contract this affirmative and this negative are tryable by Battaile or Jury neverthelesse at the Kings Suit the possessor ought make title to the Possession or cleare himselfe thereof for two things are necessary Conscience for us and
holds this Replication Sir such Avowry ought not availe him because he was not a knowne Bayliff in such a Hundred or because he did not any thing in the manner of a distresse as not in a due time nor had any warrant but tooke it in the night time or in such other manner feloniously robbed him and stole c. and in the like manner may a Replication hold against a robbery made by colour of disseisin CHAP. III. SECT 20. Of Burglary TO Burglary he may say That he entred into the Tenements without doing any Felony and not against the Peace as in to his owne demeane and free-hold CHAP. III. SECT 21. Of Rape IN Appeale of Rape he may deny the Felony and say that he ravished not her against her wil but that she assented and that appeareth because she conceived by him at the same time and there is no presumption that she was ravished against her will by fouling of her Garments nor shedding of blood nor Hue and Cry made or other manner of violence offered CHAP. III. SECT 22. Of Imprisonment TO the Appeale of Imprisonment he may say that he did it by force of a rightfull Judgement of such a Iudge but to that Plea is this Replication good that after there came a Warrant to him to deliver him he kept him in prison for the time named in the Appeale CHAP. III. SECT 23. Of Mayhem and Wounding IN Mayhem he may demand the View thereof for he cannot lawfully complaine when there is no Mayhem to be Iudged of and of Appeale of Wounding in the same manner By the death of the King all Pleas are suspended all Goales opened no Iudge Bayliffe or other Officer ought to entermeddle therewith for want or warrant and all Out-lawes and all Waives and those who have forjured the Realme and all banished Persons used then to returne except those who were exiled and banished for ever and if any recovered before for that he could not have Dett if he were not justâ—fied to the Peace and if he be brought to Iudgement and if he be accused of Outlawry he may say that he is discharged of the Outlawry by the Kings grant Or he may say that the Outlawry ought not to prejudice him because he was under the age of 2. yeares at the time of the Outlawry and therefore that he was not Outlawed for the felony Or because the felony was not done in such a County or because he was not Out-lawed in England or not within the Kings Dominion where the Writ runneth for an Outlawry prouounced against a man in the Bishoprick of Durham or elsewhere in the Land where the Kings Writ doth not run shall prejudice as one in the Land where the Kings Writ runneth Nec è contra Or because the felony was not done in the time of this King or not since the last Eyre in that County Or because the Processe of the Outlawry was false by a false Warrant or without any Warrant or because he lay sicke and was Essoigned De malo lectâ— or because he is alive for whose death he was Out-lawed or because he was Imprisoned the day of the Outlawry or because he was in the Kings service in the Holy Land or within the Realm for the profit of the Common-wealth Or because he had the Kings Protection or because he was a Mad-man or an Idiot or Deafe or Dumbe or professed in Reliligion in which cases if he pray to be received to Answer he is to be received And the Plaintiffe was to be demanded and it was to be proclaimed that if any one could shew why he should not be enlarged that he appeared at a certaine day All Parties in Iudgement are necessary to be present and they are to have Oyer of the Writs of the Originall the Plaintiffes Commission the quantity or the quality of his plaint And the Disseisor or their Bayliffes every one of them for himselfe may say in this manner he may Answer and say for himselfe that he hath not done any wrong or disseisin nor hath any thing in the Tenements put in the Plaint and he may so Answer and so of others till it come to the Tenant in whose name the disseisin was and he may Answer and say that he is not in by disseisin but is in by D. who infeoffed him who is not named in the Writ and it may be that D. entred by E. and so there may be many according to divers Feoffments betwixt the first Disseisor and the Tenant in which cases no Voucher to warranty holdeth place for a Personall Trespasse and therefore every one is well to looke not to make a Contract of a vicious thing and that he take Caution and such Surety in the Contract that he may have a recourse to recover if he lose the thing and therefore the Lords used so keepe their Mannours that none could enter by Intrusion Disseisin or by other vicious bargaines not otherwise unlesse the bargaines were entred in their full Courts whereby the Lords could not have received their enemies into their Mannours nor have taken their Homage against their wills nor any used to enter before they had found Sureties to restore to the Purchasor or his Heires the value of the thing if by rightfull Iudgement it belonged to him after his thing lost for the offence of Allienation or for his power of this warranty To the principall Disseisor it belongeth to have a regard if the Plaintiffe put more into his Plaint that he Answer not but to that which he may avowe he may say that there is varience betwixt the Originall and the Commission or that the Writ is vicious as it is in misprision of names or fit-names Of names as Renand for Harrand Margery for Margaret and such like or he may say the Writ is faulty for want of Sirnames or if the names of Dignity be omitted as if a Bishop Abbot Prior or other be disseised of any thing in the right of his Dignity and he makes his plaint simply of a Trespasse done onely to his Person and not to his Church or Dignity in this manner A. complaines to you wherea he ought thus to make his Plaint A Bishop of London and so it is of Disseisors Or he may say that the Writ is vicious because the Plaintiffe who is solely in the Plaint hath no cause of Action but with another who is not named in the Writ Or it may be faulty if it be not contained in the Writ Dissersivie eum where it ought to be Dissersivie eam or eos where it should be ewn or eam etè contra It is contained in the Writ wrongfully and without Judgement c. and to that one may plead not wrongfully but rightfully denying any other force And note that one may be disseised wrongfully and without Judgement and wrongfully and by Judgement as it is of those who are disseised of their Free-holds by the Judges who have no Iurisdiction and neverthelesse
after default untill due satisfaction was made so as the defaults were more hurtfull to persons in contempt then profitable Some Actions are personalls and not mixt in the introduction as of Neistie of Acccompt of leading away distresses and some actions there are that although they savour of the personalty and realty yet they hold not the rules of those actions As of Recognitions of Assizes in which if the Tenants make defaults for that there is no distresse nor seisure of the Land or other thing in the Kings hands but the Recognitions are to be taken ex officio and the Judgements are to be pronounced according to the Verdict of the Jurours in respect of such defaults CHAP. IIII. SECT 6. Of Personall Action IN personall Actions venialls where the Defendants are not Freeholders the defendants used to be punished after this manner First Processe was to bee awarded to arrest their bodies and those who were not found were put in exigent in what Court so ever the Plea was and were at three Courts solemnly demanded and proclaimed and if they appeared not at the fourth Court then were they banished the Lords jurisdiction or the Bayliffes of the Court for a time or for ever according to the quantity of the Trelpasses CHAP. IIII. SECT 7. Defaults in reall Actions THe defaults in reall Actions are punishable in this manner At the first default the plaintife is there seized to the value of the demand into the hand of the Lord of the Court and the Tenants are sommonable to heare their Iudgments of defaults Or after appearance the seisure is to be adjudged to the Plaintifes to hould in the name of a distresse untill by lawfull judgment hee be ousted thereof And if any one appeare in Court first he is to plenise the thing in demand and presently to answer the default In which case hee may deny the Summons because hee was never Summoned or not reasonably Summoned and thereof he may wage his Lawyer against the Testimoney of the Summoners although they be present and if he wage his Lawyer he is presently to plead to the Action or to the plaintife CHAP. IIII. SECT 8. Of Actions Miâ—t THe defaults of mixt actions are punishable in this manner The defendants are distrainable by all their moveable Goods and Lands saving that they are not put out of that possession from Court to Court till they apeare and Answere and the issues come to the profits of the Lords of the Courts CHAP. IIII. SECT 9. Of Pledge and Mainpernor PLedges and Mainpernors are of one signification notwithstanding that they differ in names But Pledges are these who baile other things then the Body of Men as in Reall Actions and Mixt Mainpernors are in personall Actions only those wâ—â— bayle the Body of a Man safe Pledges are those who are sufficient to answere the demand or the value and are true men and Freeholders to whom the Plaintife is and in whose Court the Plea is brought and if any one bring the Body or his Fees by default he is sufficient punished though hee bee not amerced but then the Offendor is first amerceable when he is brought to judgement and cannot excuse his wrong or save his default And as none who commeth before Summons is amecreable so no Plaintife is amerceable or his pledges de prosequendo for Nonsuit where the Tenant appeareth according to the warrant of the Summons or other wise maketh satisfaction for the same As in Case where the King Commands the Sheriffe that hee command such a one to appeare or to doe and if he do not and the Plaintifes put in sureties to prosecute his suit then that he summon or attach the defendant c. In which case if the Sheriffe had not warned the Tenant to appeare or to do according to the points of the Warrant if he take surety of the Plaintife to prosecute hee doth him wrong But the Plaintifes and their pledges are to bee amerced when the defendants offer themselves in judgment against them and they make defaults by Nonsuit And also those Sheriffs do wrong who forbeare to execute the Kings Commands in as much as the Plaintifes have found sureties to prosecute their Plaints when no mention is made in the Writts to put in sureties CHAP. IIII. SECT 10. Defaults after summons AS there is a default of persons in the like manner there are of things As of services issuing out of Lands where the Lands are in service and wherenot If Rent Suit or other service bee behinde to the Lord of the Fee The Tenant is not distraineable for the same by his moveable goods but it behoveth to sommon the Tenants to save their defaults or to make satisfaction or to answere wherefore those services due out of their possessions are behinde to the Lords and if they appeare not at the Sommon by the a ward of the suitors their Lands are to be seised into the Lords hands til they justify themselves by pledges And if they be againe summoned to heare the Iudgments for their defaults Although they come not at the second Summon they are not to bee amerced in as much as they came they may render the Land or alledge a priviledge or say something why they ought not to obey the Summons And if the Lord have not a proper Court nor suitors or hath not power to do Iustice to his Tenants in manner as aforesaid Then the same may bee done in the County or Hundred or elce in the Kings Courts Or at first by a Writ of Customes and Services and other Remediall Writts And if any one hath not any thing to acquit himself the Lord is not to loose his Right although hee be delayed thereof but the Lord may seize his Land as before is said and the Tenant is to recover his damages where he can and it shall be accounted his follie to enter or remaine in another Fee without the consent of the Lord. And if any one oust him of his Land and of his Tenement enforceth another person to hould of him and maketh himselfe mesne betwixt the Lord and the Tenant in prejudice of the Lord in such a case the law is used to hould the course after said CAP. IIII. SECT 11. Of champion IF any one do or say to his Lord of whom he houldeth any thing which turneth to the hurt of his body or to his dissinherison or to his great dishonour First by the Award of his Court or of some other such a one is sommonable if he be his Tenant and afterwards if he make default he is destrainable by his Land by the Lord till he appeare and if hee appeare and cannot discharge himselfe by his wager of Law by 12. men more or lesse according to the Award of the Court hee is to bee disinherited of the Tenancie which hee houldeth of the Lord in such a manner by the Judgment of the Suitors and so it behoveth that the Tenants leave their Lands and
two points one in the specialty of the Corporall punishment and of the Plurality punishments since the redemption by a pecuniary paine is but the buying out of the Corporall punishment The other to have jurisdiction against the Abettors without originall Writ The Statutes of Waste are founded upon Errour since waste is a personall Trespasse and requireth other manner of Processes as appeareth in the Chapter of defaults and to defend a personall Trespasse by Writ is but a vaine labour The Statute of not allowing a false cause in the Essoigne De malo lecti is defective for in no Essoigne for no Party is any false cause or any falsity to be permitted not ought to be profitable to any The Statute of Debt and Damages recovered is defective for not onely should such remedy be in the Kings Courts but it ought to comprehend in all other Lay Courts The Statute of those who are dead without Wills is defective for it ought to comprehend Felons and Fugitives as well as true men and the King and all others into whose hands their goods come as well as Ordinaties for none can forfeit the right of another The Statute for allowing one manner of Exception in the like Actions was not needfull to have been made if not for the negligence of Justices for every affirmative is encounterable with his negative at the perill of the party The Statute of detinue of service is a novelty daugerous to Lords of Fees as appeareth in the Chapter of defaults The Chapter of making new Writs had not need to have been made if the first Ordinances of Writs were observed The Statute to have remedy by Assize of Novel disseism is reproveable for as much as it comprehendeth not Lands charged with Villain Customes not Lands holden for terme of yeares The point needed not have forbidden false Exceptions if the Pleaders held themselves to the points given in charge And as to the point of Imprisonment the Statute is reproveable for the reasons aforesaid and also as to the paine of double damages for the Law giveth a man no more then is his demand And that which appeareth in the Statute of false Appeales is more errour then right in the enacting the award of amends to Defendants whereas it is not to the Plaintiffes And as to the Writ to the use of Sheriffes in Disseisin it is no Statute but it is a thing at pleasure and a wrong And that which is used to grant Damages in part or in all to Justices or to Clerkes or to Ministers or others should be forbidden as a usage very full of damage to the people And as punishments are reproveable in Novel Disseisins so are they in the Statutes of Disseisins Corporall punishments neverthelesse hold in such personall Trespasses but in Reddisseisins more then in Disseisins The Statute which forbiddeth that Writs of Oyer and Terminer be not Ligirment granted is not founded upon any Law Easily as being repugnant to the words of the Great Charter We will not sell or delay Justice to any man but commeth rather from the remporall Iudges who cause the same for their advantages as desiring to embrace all Pleas. The Statute of Caption of Assizes thrice in the yeare is reproveable as to the adjournment of the Parties out of the Counties before the Iustices of the Bench who have no jurisdiction over those Pleas since the Commissions are given to Iustices assigned And as to take Iuries and Enquests in their Counties so the Statute is not to destroy the Authours and indamage the people The Statute which forbiddeth Iustices that they cause not Iurours say but their advice is defective as appeareth in the Chapter of Iurours The Statute of Exceptions allowables rebutted by Iustices is not founded upon Law as appeareth in the Iudgement of false Iustices but is when it is in no part fixt The Statute of Rape is reproveable for none can ordaine by Statute that a veniall punishment be turned into a mortall without the consent of the Pope or the Emperour The Statute that the King hath the Suit in Rape or in Ellopment of women Married is reproveable for none is bounden to Answer to the Kings Suit if not by Appeale or by Indictment And that which is contained in it That Women should lose their Dower for the sinne of Adultery ought also to comprehend all Adulterours who claime to hold the inheritances of their Wives by the courtesie of England so that there be no exception of persons The imprisonment of the Alloppors of Nunnes and their ransome is no Law but is an errour in a double manner as before is said in many places The imprisonment for two yeares or more ordained for a Corporall punishment to Ravishers of Marriages is but errour for no Corporall punishment ought to be ordained but for common profit as before appeareth of open Penances And that which is ordained of Proclamations in personall Actions is but abuse of Law as it is said in the Statute of Moignes The Statute which awardeth Ransome is reproveable for Ransome is nothing else then the redemption of Corporall punishment The Statute of Distresses made by Baylisses unknowne is distinguishable for in torrious Distresses without warrant the Iudgement of Robbery holdeth and by warrant is every one receiveable whether knowne or unknowne The Statute of Iurours is reproveable for the Law wills that the Plaintiffes have the aide of the Courts to cause the Witnesses to appeare whereby they may the more lawfully helpe themselves without distinction of persons And that that jurisdiction is granted to Justices assigned to Oyer and Terminer Plaints without a speciall Commission is but abuse The Statute which awardeth that Writ of Judgement be made without warrant of originall Writ is nothing else then a Licence to falsifie the Kings Seale The punishment of Sheriffes ill answering is reproveable as to the punishment for dis-inheritors of the King offend of the crime of Majesly and are by consequence punishable by death which ought not to be in such cases And as to issues the Statute is reproveable for no issues are awardable but after defaults in Actions mixt and not to the Kings use but for the profits of the Plaintiffes The defaults made of the Statutes of Clerkes Cryers and other Officers of the Court are but idle because they aâ—e not kept at all The Statute that Cognizances and Enrolements which are made in the Chancery the Exchequer and before Iustices be established is an Authority of great ill for by false enrolements might every one in Authority destroy those he pleased which should be a great inconveniency Againe by this Statute Authority should accrue to Authority to the Chancellor and others to falsifie the Kings Seale by Writs to give judgement without originall Writs And therefore note that none but the King can receive Arturnies in the Kings Court nor recognitions bitwixt Parties without warrants of originall Writs The Statute of improvements of wasts and commons of Pasture