seller c. shall forfeit the value of the land and likewise the buyer knowing the same provided he that is in lawfull possession by taking the yearly profits may buy c. anothers pretenced right c. Rule 7. Stat. 6. R. 2. 2. Debt accompt and all such actions shall be brought in the County where the contract c. was made Rule 16. Stat. 1. E. 6. 7. The Acceptance of a new name of dignity shall not abate the writ CHAP. 24. Rule 6. MErton 8. 20. H. 3. Seisin of ones Ancestor in a writ of right shall be from the time of H 2. In a Mortdancester writ of Nief and of entry from the last return of King John out of Ireland In an Assize of novel disseisin from Henry 3. his first passage into Gasciogne West 1. 38. 3. E 1. Seisin of ones ancestor in a writ of right shall be from the time of Richard the first In an Assize of novel disseisin and Nuper obiit from H. 3. his first passage into Gascoigne In a Mortdancester Cosinage Aywel entry and writ of Niefe from H. 3. his Coronation Stat. 32. H. 8. 2. Seisin in a writ of right shall be within 60 yeares In a Mortdancester or any other possessory action upon the possession of his ancestor or predecessor shall be within 50 yeares A writ of the possession of the Plaintiff himselfe shall be within 30 years An avowry or cognizance for rent suit or services of the seisin of his Ancestor or of his own shall be within 40 years Formedons in reverter or remainder and Scire facias upon fines shall be sued within 50 years after the title or cause of action accrued Stat. 1 M. 1. Parl. 2. sess 5. The statute of 32 H. 8. 2. shall not extend to a writ of right of advowson Quare impedit Assize of Darrein presentment Jure patronasus writ of right of ward writ of ravishment of ward nor to the seiser of the wards body or Estate but the time of the seisin to be alleadged in such cases shall be as it was in the Common Law before the making of the sayd statute Stat. 21. Jac. 2. The time of prescription for lands concealed from the King is sixty years before the making of that statute Stat. 1. Jac 16. In writs of Formedon in descender remainder and reverter and right of entry the time is 20 years after accruer and imperfections removed Rule 6. Stat. 25 E. 3 stat 5. 16. Non-tenure shall not abate the writ but only for the quantity Stat. 37. E. 3. 17. No writ shall be abated by acknowledgment of villeinage if the demandant or Plaintiffe will averr that he that alleadgeth the exception was freed the day of the Writ purchased CHAP. 26. Rule 4. WEstm 2. 2 13 E. 1. A Gui in vita given to the wife after her husbands death upon his loosing of the land by default and the Tenant that recovered against the husband must maintain his own right CHAP. 27. Rule 4. WEstm 2 20. In a Writ of Cosinage Ayel and Besayel the point shall be inquired whether the demandant be next heir as well as in a Mortdancestor Rule 10. Westm 2. 1. 13. E. 1. A formedon in Descender is also given by this Statute to the heir in tail upon a descent from his Ancestor dying seised of the estate tail Rule 12. Merton 1 20 H. 3. A woman deforced of her dower or Quarentine shall in a writ of Dower recover damages viz. the value of her Dower from her husbands death to the day of the recovery of her Dower and the deforceor shall be amercied Westm 1. 48. 3. E. 1. A writ of Dower unde nihil habet shal not abate though she have received part of her Dower before the writ purchased unlesse it were of the same party against whom the writ was brought and in the same Town Westm 2. 4. 13. E. 1. In place of a writ of right a Quod ei deforceat is given to tenant in Dower for life by the coutresie in Frank-marriage and in tail upon losing by default CHAP. 28. Rule 2. Marlebr 7 52. H. 3. In a writ de communi Custodia if the deforceor come not at the grand distresse the writ shall be renewed as often as may be within half a year and every time read and claimed in the county-court and if he come not in to answer nor the Sheriffe finde him within that halfe yeare he shall lose the Ward saving his action another time if he have right Westm 2. 35. 13. E. 1. In a writ of ward of land or heir or both either of the parties dying before the plea determined a re-summons shall be And in the grand distresse day must be given that three County dayes may be held before the returne in every of which Proclamation shall be made whereupon if the defendant appear not judgement shall be given for the plaintiff saving the right of the defendant if afterwards he will claim it So shall it be done also in a writ of ejectment of ward Rule 6. Westm 2. 2. 13. E. 1. If the tenant disclaim in the County-Court or other Court not of Record the Lord may remove the plea before the Justices to cause it to be of Record so as he may have a writ of right sur dlsclaimer Glocester 4. 6. E. 1. Explanat 4 When land is given in Fee farme rendering or doing so much as amounteth to the fourth part of the value of the land if he whose land is charged let it lye fresh by two years so as no distresse can be found in it nor render or do that which is contained in the writing the other shall recover the land by a Cessavit but the tenant coming before judgment if he render the arrerages and damages and finde sufficient to do from thenceforth that which is contained in the writing shal retain his land Westm 2. 21. 13. E. 1. If a man detain from his Lord his service due by two years the Lord shall recover the land by a Cessavit This lyeth also for the Lords heir against the tenant his heirs and Alience Westm 2 41. If religious houses that have land given c. withdraw the Almes c. by two years the donor shall have the like action CHAP. 29. Rule 7. MArlbr 9. 52. H. 3. The processe in a Sella ad molendinum is attachment venire facias and the grand distresse see also there the order of proceeding in that action Rule 9. Stat. 25. E. 3 Stat. 3. 3 tht Kings Collation to a benefice being found before Judgment to be untrue shall be repealed Marlbr 12. 52. H. the processe in a Quare impedit shall be Summons Attachment and Grand distresse Westm 5. 13. E. 1. A Coparcener being disturbed after Partition shall have a Scire facias and shall not be put to a Quare impedit If tenant in Dower or by the courtesie have presented the reversioner being disturbed shall have a Quare impedit
the Inheritance though he be prayed in aid and make default VII For after the death of tenant for life he may falsifie it by action of ad terminum qui preteriit or writ of right which is called falsifying of a recovery VIII In a writ of Dower feme Guardian in soccage against Guardian by Knight service she shal at his prayer be adjudged to endow her self wholy of the land in soccage and this is called Dower de la plus beale IX A debt acknowledged in a Court of Record either to the King or a common person is in the nature of a judgment and called a Recognizance X. In appeals of mayhem and in Indictments or appeals of felony the accessory shall not be compelled to answer till attainder of all the principals XI He that is or by possibility may be within Orders namely a Deacon at the least may have the benefit of his Clergy if he be found culpable of any bare-felonie where life and member is to be lost XII This possibility there being no other impediment shall be tried by the judges by his ablenesse to read a verse XIII Clergy is the delivering of him to the Ordinary to be kept in prison XIV If it be before judgment in which case he is called a Clerk convict he shall be tried there by a jury of Clerks and therefore purging himself shall goe at large XV. Not purging himself but being found culpable by those Clerks he shall be only degraded XVI But upon an appeal no purgation shall be allowed XVII A Clerk convict shall answer to any offence committed before XVIII A Clerk convict forfeiteth his chattells XIX Notice must be given to the King of the time before the party make purgation XX. If the Clergy be after judgment in which case he is called a Clerk-attaint he shall remain in perpetuall prison XXI Outlawry is a judgment in it self XXII So is abâ—uration XXIII The offender upon a presentment in a Leet or Sheriffs turn shall be amercied XXIV The Defendant in an appeal of felony being acquitted shall have iudgment also to recover damages against the Plaintiff XXV The Plaintiff recovering in a suit shall be allowed his costs XXVI These judgments have their judiciall Writs belonging to them both meer judiciall writs for the execution of them and new originalls in the nature of iudiciall writs to undo some matters concerning iudgments XXVII Meer judiciall Writs in reall or personall actions are either such as lie only within the year and day after the judgment rendred or a Scire facias XXVIII Those of the first sort are between the partie to the recovery and in the same Court where the recovery was XXIX Of this kind are upon recovery in reall and mixt actions XXX Habere facias seisinam to put him in possession upon a freehold recovered in an Assize Precipe quod reddat c. XXXI A writ to the Bishop to admit ones Clerk upon a presentation recovered in a Quare impedit or Assize of Darrein presentment XXXII Those upon a recovery in personal actions are of two sorts viz. to have execution of his possessions or against his body XXXIII .. Execution of his possessions is either of his lands or chattels or both XXXIV That of the land is either of the land it self or of profits out of the land XXXV Execution of the land it self is an Habere facias possessionem upon a term of years recovered in an Ejectione firmae c. XXXVI Executions of his chattels is a Fieri facias to levie execution of his goods and chattels onely XXXVII Execution of his lands and chattels is a Levari facias to levie execution of the profits of his lands and chattels XXXVIII Here execution shall be of any land which the party had the day of the judgment rendred but for chattels though it be a lease for years onely those which he had the day of the execution sued XXXIX But in Court Barons execution is onely by distresse and impounding till the party be satisfied XL. The King may have a distringas to levie an amerciament or such like by distresse and sale whether it be an amerciament in the Leet or Sheriffs turn or otherwise XLI Execution against the body is a Capias ad satisfaciendum to take the body in execution for satisfying of the partie XLII This is onely in a personal action where a Capias lay XLIII Here an Exigent shall be awarded upon the first Capias XLIV Of this nature are two speciall writs by the Kings Prerogatory Capias pro fine Regis and Capias utlagatum XLV Capias pro fine when the partie is adjudged to pay a fine to the King XLVI Capias utlagatum to take one that is outlawed XLVII These are the judicial writs within the year and day XLVIII A Scire facias is to warn the defendant upon recovery in real actions to shew cause why the plaintiffe should not have execution XLIX Here upon a Nihil returned execution shall be presently against the parties to the Judgement L. In case of life the Judge may command execution to be done without any writ LI. A woman quick with child shall for once anâ— no more be respited execution LII Here the trial shall be by a Jury of women and the writ for it is called A writ De Ventre inspiâ—endo CHAP. 47. A writ of Errour False Judgment Attaint Audita Querela I. THe new originals in the nature of judicial writs to undo some matters concerning Judgements are either writs grounded upon Errour or an Attaint and Audita querela II. Writs grounded upon Errour are a writ of Errour and false Judgment III. Both these lie upon any errour in the proceeding IV. But errour in processe may the same term be reformed in the same Court V. The processe here is a Scire facias VI. The party bringing a writ to reverse errour in the Judgment may have a super-sedeas to stay execution till the errour be discussed VII A Writ of Errour is upon an errour in a Court of Record VIII This may be sued in the Kings Bench or Parliament IX In the Kings Bench when the errour is in the Common place or other inferior Court of Record X In the parliament when the errour is in the Kings Bench and this is returnable before the King and the Lords onely XI A writ of false Judgement is upon errour in a base Court XII An Attaint is to enquire whether a Jurie of twelve men gave a false verdict XIII This must be brought in the life of him for whom it passeth and of some of them that gave it XIV It lieth onely in personal actions other then trespasses XV. The Jury here called the Grand-Jury are twenty four who are to be warned the first day XVI The processe against the party is summons re-summons as in Mortdancestor c. XVII The processe against the petty Jury is Venire facias and distresse XVIII The petty jury must be all present
Writs of admeasurement both of Dower and Pasture after the great distresse proclamation shall be made two County dayes whereupon if the party come the plea shall proceed if not admeasurement shall be made in his default Westm 2. 8. 13. E 1. when the same party after admeasurement another time surchargeth the Common a writ to enquire of that second surcharge shall go 〈◊〉 either judiciall if the former admeasurement were before the Justices or otherwise Originall out of the Chancery and the beasts surcharging the Common or their value shall be answered to the King Rule 24 c. Marlbr 21. 52. H. 3. The Sheriff may replevin beasts not only without but within a liberty also if the bayliff of the liberty will not do it Westm 2. 2. 13. E. 1. The sheriff or bayliff shall take pledges of the plaintiff before they make deliverance of the beasts not only de prosequendo but for return in them if a return be adjudged he that taketh pledge otherwise shall answer the price of the beasts Upon a return awarded to the defendant the writ de returno habendo shall have this clause that the Sheriffe shall not deliver them without writ wherein mention shall be made of the Judgment and thereupon he may if he will hare a judicial writ to the Sheriffe to deliver him the beasts but if afterwards the Plaintiffe desire to replevie his Beasts again he shall have a Judiciall writ viz a writ of second deliverance that the Sheriffe taking surety for the suit also for the beasts to be returned or their price if return be awarded shall deliver the beasts before returned and the distrainor shall be attached to come before the justices at a certain day and if he that replevied make default or for some other cause return of the dissresse is awarded being now twice replevied the distresse shal afterwards remain irrepleviable Stat. 1. 2. P.M. 12. Every Sheriffe of a Shire being no City shall at his first County-day or within two moneths after receit of his patent proclaim in the shir-town four deputies at least dwelling not past 12 miles one from another which in his name shall make Replevins as the Sheriffe might do himselfe Rule 30 Stat. 2. E. 3. 3. Commissions of Oyer and Terminer shall be only granted to the Justices of the one Bench or other or to Justices errants CHAP. 36. Rule 1. STat de quo warranto 18. E. 1. Pleas of quo warranto shall from hencforth be pleaded and determined in the Circuits of the Justices See also Stat de quo warranto novum Rule 3 c. Stat. 36. E. Stat. 1. 13. No Escheator shall take enquests of office but indented between the Jurours and him otherwise they are void Stat. 33. H. 8. 22. No Escheator shall sit virtute officiâ— only to find an office of lands holden of the King of 5 l. value or above in pain of five pounds Stat. 8. H. 6. 16. No escheator shall take inquests bâ— of people impannelled by the Sheriff and those enquests must be returned within a month after the taking in pain of 20 l. so also of Commishoners Stat. 23. H 6. 17. An Escheator shall take an inquest virtute brevis within a month after the delivery of the writ unto him his fees are there also set down Stat. 1. H. 8 8. He shall not sit unlesse he have land c. to the clear yearly value of 40 marks in pain of 20 l. He shall not delay to take the Verdict when the Jury offers it in pain of 100 l. so also of Commissioners He shall not be Escheator again within three years after that year ended Stat. 36. E. 3. Stat. 1. 13. A traverse is given to the party whose lands are seized by office of alienation without licnece or the nonage of the heir in Ward It shall be sent to the Kings Bench to be tryed Stat. 69. E. 3. Stat. 1. 13. Upon a traverse of monstrâ—â— de dron the Chancellor may let him that tenders it the lands holden to farm finding surety to do to waste Stat. 8. H. 6. 19. They shall not be let to farm till the inquests returned nor within a month after withoâ—â— which time the party grieved may have the benefit oâ— the former statute All Letters Patents within the moneth shall be void Stat. 18. H. 6. 6. All Letters patents made of lands oâ— tenements before office found and returned shall bâ— vo d. Stat 1. H. 8. 8. Divers good provisions concerning â—â—cheators Commissioners Jurors and Offices and thâ— manner of returning offices into the petty bagg Stat. 1. H. 8. 10. Lands soiled into the Kings hand by office shall be let to farm to him that tendred to traverse the same within three moneths after such office found notwithstanding the Statute of 8 H. 6. 16. Stat. 2 3. E. The estates and interests of others shall be saved though they be not found in the office where an heir of full age is found within age he shall have a writ de aetate probanda and may proceed to sue out his livery or ouster le main as his case is and receives the profits of his lands notwithstanding such office found Where after the Kings tenants death more hiers then one are found or if one be untruly found a Lunatick Ideot or dead the party grieved may have his traverse as in other cases of untrue Inquisitions A Traverse of Monstrans de droit is given without peition though the King be titled by double matter of Record When the Jury finds de quo vel de quibus Ignorant or per quae servitia ignorant the first shall not make a tenure of the King nor the last tenure in Caâ—ite but in such cases a Melius inquirendum shall issue forth traverse given to an ofice where a wrong tenure is found the rents of mean Lords shall be paid during the nonage of the Ward by the officer that receives the revenue of the Wards lands Artic de super cart 19. 68 E. 1. When the Sheriffe or Escheator seize land into the Kings hand without cause upon ousting of the Kings hands the party shall have the mesne issues Stat. de Escheatoribus 29 E. 4. 3. If the Escheator by writ out of the chancery seize land into the kings hand and after upon Inquisition no title is found for the king to have the Custodie an ouster le main shall be awarded for the party out of the Chancery Provided that if any thing afterwards may be found in the Chancery Exchequer or K. Bench for the King a scire facias shalâ— go out against the party and if the King have right 〈◊〉 shall be answered of all the issues from the time of thâ— Escheators first seisiing of the land Stat. 23. H. 6. 17. In a scire facias upon a traversâ— against any Patentee no protection shall be allowed Rule 11. Stat. 28. E. 3. 4 The rents given to theâ— that sue livery when the rent day
Court of Pipowders is a Court of Record incident to Faires and Markets for all Actions arising there and the suit must at the same time be commenced LXI The King by commission under his Letters Patents may erect other Courts at his pleasure LXII Such were Justices in Eyre and such are Courts of Record in Corporations and other places by speciall Charter LXIII These are the Courts of Record a Court Baron is the Court of a common person LXIV This Court is for personal accompts under forty shillings LXV These cannot be kept oftner then every three weeks LXVI The processe here is by precept to the Bailiffe LXVII The Suitors are the Judges LXVIII A Court-Baron is the Lords or a County-Court LXIX The Lords Court is either of a particular Mannor or of an whole Hundred XXX The Hundred Court is that whereunto all the Inhabitants within the Hundred owe suit LXX The County Court which is incident to the Sheriffe and hath Jurisdiction over the whole County CHAP. 23 Suits Original Writs Petitions I. OF an Action there be two parts the suit and the judgment II. Suit is the parties dealing in the Action III. Here for their help they are allowed Counceâ— learned in the law IV. The Suit hath two parts the beginning and the proceeding V. The beginning is the proper duty of the Plaintiffe VI This also hath two parts the first matter of the suit and the originall processe VII The first matter of the suit must alwayes be brought into that County where the cause of Suiâ— groweth VIII The first matter of the suit is for every man by writ out of the Chancery or in Courts where writs lie not by Plaint or Bill for the King alone by Inquiry IX· In all of the first kinde the Plaintiffe must finde surety by some that will be his pledges to prosecute the suit X. And these may be either to the Officer or to the Court where the suit is XI A poor man in stead of sureties shal give his faith to prosecute it XII Writs that begin the suit are original or commissionall XIII Original which appoint the first Processe 〈◊〉 the Plaintiffe finde pledges returnable in the Kings Bench or Common Place XIV This must be true Latine and also formal XV. And it must expresse the name of Baptisme and Sir-name or in lieu thereof the name of dignity both of the Plaintiffe and Defendant XVI Where there be many of one name diversity of the names must be put by addition of Elder younger and the like XVII The Kings servants in his Court or others by special grace of the Chancellor may here be admitted to finde pledges in the Chancery XVIII Writs original are concerning Common pleas or appeals that concern life XIX Those that concern common pleas lie not for or against a feme covert without her husband XX. Many having or giving joyntly cause of Action may sue or be sued together in one XXI Severall Actions of one nature may be joyned in one originall with severall Praecipes or commandements to be executed XXII Here in place of action against the King Petition must be made unto him in the Chancery XXIII And that in case of hereditaments though the King have granted the same away XXIV Whereupon processe shall go out against the Grantee to maintain his title XXV But whilst personall things seised for the King remain in the Officers hands the party that hath right may sue the officer or disturb him to take the profits XXVI Petition is a supplication declaring the parties right where mention must be made of all the Kings title XXVII The writs which concern common pleas are Real or personal and they both are again Praecipes or Si fecerit te securum XXVIII A praecipe is that which willeth the Sheriffe to command the Defendant to do somewhat in certain that the Plaintiff sueth for which if he do not then to serve the first Process XXIX The form hereof is Praecipe A quod reddat B c. Et nisi fecerit c tunc summon c. XXX A Praecipe is a Praecipe quod reddat or a Praecipe quod faciat XXXI A Praecipe quod reddat which lieth for things in render XXXII A Praecipe quod faciat which lieth for things not in render viz. in Fesance as a Writ de consuâ—tudinibus servitiis secta ad molendinam c. or sufferance as a Quod permittat c. XXXIII A Si fecerit to securum is that which willeth the first process to be served without more ado XXXIV The form hereof is Si A fecerit te securum de clamore suo prosequendo tunc summon c. CHAP 24. Actions reall I. REall Actions where a Free-hold shall be recoveed are Possessory or in the right II. Possessory which are to recover a Possession III. In the right which are to recover a Possession mixt with the right IV. And both these mâ—y be of a possession or right in himself or descended from his Ancestor V Reall Actions in the right are either founded upon the right or for the meer right VI. Reall Actions where the Free-hold shall be recovered lye only against the Tenant of the Freehold VII With the Free-holder may be joyned in Action any having Title to enter CHAP. 25. Ad Terminum quem praeteriit Entry ad communem legem Causa Matrimonii praelocuti Dum fuit infra aetateÌ„ Dum fuit non compos mentis I. A Reall Praecipe quod reddat is that which is for reall things in render and it is a plea of land or other like Praecipe II. A plea of land which is for land or other such things in demesne III. Where land in certain is demanded it must alwayes be brought in a Ville or place known out of any Ville IV. A plea of land is a writ of entry or a writ shewing the demandants title V. A writ of entry is that which is to disprove the tenants possession by the means of his entry VI. Wherein tenant in fee-simple demanding of the possession of his Ancestor shall say in the writ Quod clamat esse Jus hereditatem suam VII A writ of entry is either against the first party or in the degrees VIII Against the first party when it is against him to whom the first alination was or that made the disseisin IX That in the degrees is in the per or in the per and cui X. In the per when he against whom it is brought cometh in immediatly under the first party as heire unto him ot by alienation from him XI In the per and cui when he against whom it is brought cometh in immediatly under the first parties heir or aliance XII Writs of entry grow either without wrong at the first or upon a wrong XIII Those without a wrong at the first are grounded upon a determination of the first estate or upon a disability in the person that made it XIV Upon a determination
matter for the King is found by a Jurie called an Enqest of Office III. This may be before the Officers as Sheriffs Escheators Coroners c. Virtute officii Brevis or Commissionis to them directed IV. Here the number of twelve is not of necessity requisite V. An Enquiry is an office or presentment VI. An Office which findeth matter to intitle the King to some possession VII Upon as high a matter of Record to avoid the Office as the Office it self a man may traverse it VIII If the office be for personal goods the party may alwayes have a traverse or plead any matter unto it unlesse the Escheator have accounted for them and that although the office finde the Kings title to be by matter of Record IX The King upon office finding for him if his entry be lawfull and the possessions to be had at the time is presently in possession X. Also he shall be answered all the mean profits from the time of his title XI Upon an office found virtute Officii whereby the King is intitled to ones wardship the heir shall never have livery viz. the land delivered out of the Kings hands XII But upon a perfect office Virtute Brevis or Commissionis if it be a speciall writ or Commission not a general one to inquire of all wards he may XIII Therefore here the heir is allowed these Commissions following or writs in the nature of such Commissions viz 1. For finding of an office for the King 2. For the having of the land out of the Kings hand XIV Those for the finding of an office are Diem clausic extremum Mandamus and Devenerunc to inquire what lands holden of the King and what of others the ancestors was seized off the day of his death who is his next heir and of what age XV. The Diem clausit extremum is to be sued within the year after his death XVI The Mandamus is after the year and here it must further be inquired who took the profits XVII The Devenerunt is when the ancestor dieth in ward to the King XVIII Upon defect in Offices found by vertue of such writs or commissions these writs following shall issue out to make them perfect viz. XIX A Quae plura upon leaving of any land out iâ— these offices XX A Melius inquirendum upon any other defect iâ— the Office XXI A Datum est nobis intelligi upon an Office finding lands to be holden of any other person when there is a Record to prove that they are holden of the King XXII The writs for having the lands out of the Kings hands are an Aetate probanda and a writ iâ— Livery XXIII An Aetate probanda is to inquire whetheâ— he bâ— of full age or not XXIV A writ of Livery is after a perfect Office finding a tenure in cheif to have all the lands delivereâ— to him at once by the King XXV Two being found heirs by one and the saâ—â— title The King shall not make Livery until by enter-pleader the truth be discussed at his full age that waâ— found heir first XXVI Amongst Co-parceners the King upon Livery shall make partition XXVII He that holdeth of the King by Knight service but not in Chief shall not sue Livery Be when he cometh to his full age shall have an Ousterâ— main XXVIII A presentment is an enquiry finding some offence against the King which is also called an Indictment XXIX Every strong suspition of such offence appearing of Record hath the force of an Indictment XXX Without an Indictment the King can have no suit upon a wrong done principally to another but done to himsef he may XXXI For the preventing of divers offences viz. trespasses to the body and felonies and committing them that offend to prison untill they may be indicted and so duely punished every Hundred hath his High Constable and every several tithing within the Hundred hath his petty Constables or Headboroughs XXXII Any man suspecting another of a felonie committed or but intended may arrest him XXXIII With indictments of trespasse informations upon penal Statutes such as inflict a pecuniarie mulct or other penalty upon offenders have a neer affinity XXIV Indictments of the death of a man are to be taken before the Coroners CHAP. 37. Proper Original Processe I. HItherto of the first matter of the suit it followeth to speak of original processe II. Original processe is that processe which is untill the defendant do appear III. Original processe is proper or improper IV. Proper which is to bring some matter into Plea or solemn action and it is single or mixt V. Single which is by the possessions onely lands or goods or onely by the person VI. That by the land is of two soâ—ts first summons and Grand Cape in a real Praecipe quod reddat VII The summons is the warning of the tenant in his land by certain summoners VIII The summons upon an action brought against one as heir must be in the land that did descend IX If it be to recover the freehold of land it self it must be in the same land X. A Grand Cape is to take the Land into the Kings hands by the view of lawfull men with a summons of the tenant to answer as well to his default as to the demandants action XI If the tenant be returned summoned where iâ— deed he was not the writ shall abate XII Secondly it is summons and re-summons in a Mordancestor Juris utrum and an Assize of Darren presentment and upon default the enquest awarded XIII Original processe by the goods as in Assize of novel disseisin and nusance where the original proces is Pone per vadios c. salvos plegios XIV A Pone pervadios salvos plegios is a procesâ— to attach the defendant by certain of his proper goods being meer personal chattels which he shall forfeit iâ— he appear not and upon such default the Inquest summoned by the writ is presently to be awarded to recognize the Assize XV. The original processe by the person is a Capias which is a processe to imprison him then an exigent oâ— solemn demand at five severall County Courts immediately following one another and for not appearing Outlawry XVI This Judgment of Outlawry is given by the Coroner in the fift County and is onely in mayhem felonie and treason XVII If the Exigent be returned not fully serve without any folly in the Plaintiffe he bringing an Exigent de novo before any other County holden shaâ—â— have the benefit of the former Counties XVIII Outlawry disableth him from suing anâ— actlon XIX By Outlawry all his chattels are forfeit to the King even such as he hath but a right unto XX. In Mayhem there must be three Capias viz. Capias alias pluries tâ—o in Felonie viz. Stealth Robbery and Burglary and onely one in the death of a man and high Treason XXI In felonie and Treason they that tarry the Exigent forfeit their chattels XXII A mixt
them doth onely drive the defendant to make a better answer which is called a respondes ouster if it passe against him CHAP. 42. Appearance Continuance mesne processe I. THus far concerning pleading the other mean acts are appearance and continuance or judicial processe II. Appearance is the parties coming into the Court where upon common day given the fourth day after the very day is allowed III. When the defendant appears not as he ought he is said to make default IV. When the partie for not appearing should have some great losse or corporal pain he may appear though the Officers return force him not to it V. If the Plaintiffe will not appear when he is demanded at the day which is termed a Non-suit or say in Court that he will not sue forwards which is a retraxit this is peremptory and looseth him his Action VI. But in real Actions brought by many if one will not prosecute the rest may alone except in a writ 〈◊〉 nativo habendo and that is in favorem libertatis VII For executors also summons and severance lieâ— in personal actions VIII If the defendant will not plead which is caâ—led a Nihil dicit this in all actions is peremptory 〈◊〉 looseth the action IX So in personal Actions if he appear and afteâ— plea or demurrer joyned make default this is alâ—â— peremptory and imports a Nihil dicit X. Howbeit either of the parties may for once be excused of appearance if they demand it the first day or any of the four dayes unlesse the other enter an exceception that no Essoyn be received XI Also upon every mean appearance a new Essoin lieth XII And this is called an Essoin de mal venir or the common Essoin XIII Besides this Essoyn there are divers other for speciall causes allowed as of being beyond sea of going ad terram sanctam of the Kings service and de malo lecti XIV These last have a year and a dayes adjournment where upon an oath must be taken that the cause is true XV. But no such special Essoin lieth in an Assize of novel disseisin Dower Assize of Darrein presentment and Quare impedit XVI Continuance is from day to day till the end of the suit XVII Here if the Plaintiffe do nothing it is called a discontinuance XVIII and if any error be in the continuing as by awarding a Capias where a distresse should be it is called a miscontinuance XIX The suit of an excommunicate person shall be put without day termed parol sans Jour till he be absolved XX. So it is also in all other cases which happen without the Plaintiffes folly XXI After continuance taken the defendant may for once leave his former plea and plead any thing growing since this latter continuance XXII Continuance is by processe or upon the Roll. XXIII That upon a Roll is the dies datus or Emparlance XXIV Dies datus when the Court giveth thâ— parties day and this is alwayes before the Count. XXV Such a continuance by assent of both the parties is called a Prece partium XXVI But in Assizes the continuance is by a Justiciarii nondum avisantur and not by a Dies datus XXVII Emparlance is when the defendant demandeth day to see if he may end the matter without further suit which he may do once but not ofteâ— without the Plaintiffes consent and this is alwayeâ— after the Count. XXVIII After Emparlance he cannot plead iâ— the Jurisdiction or person neither yet in abatement either of the Count or writ nor demand Oyer of an Obligation or the like XXIX But after a special Emparlance Salvis oâ—nibus advantagiis he may plead to the Count or writ and also have Oyer but not to the Jurisdiction 〈◊〉 person XXX In an appeal that toucheth life if the defendant plead a plea whereby his life should come 〈◊〉 jeopardie the Plaintiffe shall not imparle unto it bâ—â— must answer sedente curia XXXI Default after Emparlance is peremptory and looseth the action in all actions reall and persâ—nall XXXII Judicial processe is a processe out of the Court where the original is returned prosecuting 〈◊〉 Action XXXIII Judicial processe are mesne processe 〈◊〉 in nature of new originals XXXIV Mesne processe which is for any necesary act to be done not onely for the Plaintiffe against thâ— defendant but for either of them against any otheâ— whose presence in the Court may be necessary for them XXXV Upon a fine levied before it be engrossed the writs to compel attornment are XXXVI Per quae servitia when the fine is levied of a Seigniorie XXXVII Quem redditum reddit when it is of a rent charge or rent seek XXXVIII Quid juris clamat when it is of a remainder or Reversion XXXIX In Petitions or whatsoever the King being made partie may be at losse A writ of search lieth which is to search in the Treasurie before the plea prooeed if by likelihood some matter may be found there to maintain his title XL. In real Praecipes where a freehold is to be recovered upon default after plea issue or demurrer a Petit Cape shall go forth to cause the tenant to answer to the default onely XLI So upon a voucher a Petit cape ad valentiam XLII In such as are for other hereditaments save in point of Seigniorie as annuity Quare impedit Quo jure Quod permittat c. upon default as before a distresse shall go forth in lieu of a Petit cape XLIII The processe against jurors is a venire facias to the Sheriffe to return them at which day if they appear not then a Habeas corpora and after that a distresse infinite XLIV In an action of trespasse alwayes whatsoever the issue be release justification c. and in debt detinue account and other personal actions which are for things in certain if the issue be taken upon matter in fait onely and the defendant make default the jury shall be taken XLV But if it be upon matter in writing the plaintiffe may there pray judgment if he will howbeit if he do not pray it the Jury shall be taken by default as in action of trespasse XLVI But in Assizes of novel disseisin nusancâ— Mordancestor Darrein presentment and Juris umeâ— the original writ commandeth a jurie as well as thâ— defendant to be warned which summons to the jurie seâ—veth in stead of a venire facias so that the processe herâ— against the jury is Summons Habeas corpor dâ—stringas XLVII And therefore here upon default afteâ— that original processe ended viz. the Atachments an Assize of novel disseisin and nusance and the summons and re-summons in a mordancestor Darrein resentment and Juris utrum the enquest shall be takeâ— by default CHAP. 43. Commandatorie Judicial processe in the naturâ— of new originals 1. THus far of mesne process Judicial process in thâ— nature of new originals in none of which 〈◊〉 II. Freehold shall ever be recovered but damageâ— onely are
do it by the form of his deed or he or his ancestors have used to do it before the Kings first voyage in Brittain being about 39 years and an halfe before the making of this Statute The eldest Coparcener shall only do suit of Court and the other parceners shall be contributary All one Jointenant or tenant in Common shall do the 〈◊〉 and the rest shall contribute Rule 38. Westm 35. Reasonable aid shall be 20 l. for a whole Knights fee and as much for 20. l. land iâ— soccage and so more or lesse according to that rate It shall be levied at 15 years age of the son and â— years of the daughter and if the Father levy it and dye before the marriage of the daughter the father executors shall be charged therewith and if they have not assets the heir shall be therewith charged Stat. 25 E. 3. Stat. 5. 11. Reasonable aid to make the Kings eldest son a Knight and to marry his eldeâ— daughter shall be levied of all lands holden of the King without Mean according to the rate in the former Statute Rule 43. Marlbr 17. 52. H. 3. Guardian in soccage shall make no waste sale or destruction of the heirs inheritance but safely keep the same to the use of the heir and when he comes to age shall answer the issues thereof by a lawful accompt saving his reasonabl costs neither shall such Guardian sell the marriage of such heir but to his advantage Rule 48. Magn. Cart 3 9. H. 3. The Lord shall take homage of the heir before he have the Wardship and such heir after he hath been in Ward shall at his full age of 21 yeares have his inheritance without relief or fine and if the heir within age be made a Knight yet his land shall remain in ward untill his full age aforesaid Marlebr 6. 52. H. 3. If one enfeoffe his heir within age to cause the Lord to lose his Wardship and die yet the Lord shall have the Wardship So when a fraudulent feoffment is made by a tenant upon condition to revert after certain yeares to him and his heirs if the feoffees pay not a certain sum to the value or more then the value of the lands In such case the Lord shall have a writ de Cuctodia reddenda And if being able to aver this matter he recover yet the feoffees shall have the land again when the heir comes to age Howbeit the Lord not being able to aver it shall render the feoffees their costs and damages Stat. 32. H. 1. Two Jointenants or more holding of the King and he that hath the fee dyeth the King shal presently have the ward-ship and marriag of the body of his heir if he be within age Saving to every woman her dower of two parts of those lands divided from the third part as in that Statute is directed and saving to the King during the wards minority the reversion of such Jointenants and tenants in dower Rule 50. Merton 6. 20. H 3. If any heir 14 yeares old or above marrie himself without licence of his Lord to defraud him of the marriage and the Lord of him a convenient marraige without disparagement thâ— Lord shall retain the land beyond the term of his fuâ—â— age untill he may receive the double value of the maâ—riage If a Lord marrie the heir within 14 yeares of age whereby he is disparaged he shall lose the Wardship and the profits of the lands shal by the Wards friends be converted to the Wards use Merton 7. 20. H. 3. If an heir will not marry at the request of the Lord he shall pay to the lord as much as his marraige is worth for of right the marraige of an heir within age pertaineth to the Lord. West 1. 22. 3. E. 1. The Lord may hold the land oâ— heirs female two yeares after their age of 14 within which two years if he marrie them not they shall gâ— quit without giving any thing for the wardship or marriage and If they will not except a convenient marriage tendred by the Lord he shall hold the land til their age of 21 yeares and over until he have taken the value of the marriage Stat 4. 5. P.M. 8. None shall take or convey or care to be taken or conveyed away any maid or woman child unmarried being within the age of 16 yeares or of the custodie and against the will of the father or mother of such childe or of the person to whom the father of such child by his last will or other act in his life time hath appointed the governance of such chilâ— except such taking shall be without fraud by or foâ— the Master or Mistris of such childe or her Guardiaâ— in Soccage or Chivalrie in pain of two years imprisoâ—ment with out Bail or else to pay such fine as shall be assessed by the Council in the Star-chamber None shall take away or deflower any such childe oâ— against the will of her father if he be living or of heâ— mother having the custody of her if the Father bâ— dead contract matrimony with any such Child except by the title of Wardship in pain of five years imprisonment or to pay a fine to be assessed by the sayd Councill The Fines are to be divided betwixt their Majesties and the prosecutor The said Council and Justices of Assize have power to hear and determine these offences If any such child above the age of 12. and under the age of 14 consent to any such contract of matrimony the next of the kin to whom her inheritance should come shall enjoy it during her life but after her decease it shall revert to the right inheritor other then to him that did so contract matrimony This act shall not prejudice any custome in London or any other Citty or town concerning Orphans CHAP. Rule 6. MErton 4 20. H. 3. Lords of wastes or commonable woods or pastures may approve against their Tenants part thereof so as they leave sufficient Common besides together with free ingresse and regresse to enjoy the same West 2 46 13 E. 1. Such a Lord may approve in like sort against his neighbours which have common appurtenance and for a Windmil Sheepcote Dairy enlarging of a Court or Courtilage none shall be grieved by Assize of novel disseisin If a ditch or hedge made for that purpose be thrown down and the parties offending be not discovered by the Townes adjacent they shall make it up again and render damages Stat. 3. E. 6. 3. Upon Iudgment for the Plaintiff in an Assize upon any branch of the said Statutes of Merton and Westm 2. the Court shall award treble damages This Statute shall not extend to houses built before the making thereof not having above three acres laid to them nor to a Garden Orchard or Pond not exceeding two acres Stat. 43. El. 11. All contract made betwixt Lords and Commoners of wasts c. subject to surrounding shall be good save where the Queen
regnum TABLE 40. The Proceeding which consists in The Count or Declaration The pleading which Pleas are The Defendants first Pleas viz. Dilatory by taking Exceptions In disability To the jurisdiction of the Court. To the person In Abatement To the Writ as default of form false Latine c. and here if the default be not caused by the Plaintiff a new Writ may be had by Journies Accounts To the Count as insufficiency variance from the Writ c. Forraign advantages In all Actions as Oyer of the Writ Condition c. In real Actions as View Ayde-prayer Voucher In certain personall Actions Garnishment Enter pleader which may also be in a Quare impedit Sanctuary and there continuing viz. for Treason and other Capitall Offences To the action as Pleas in Bar Confessions to which place Abjuration may be referred when one guilty of bare Felony flyeth to the Church c and there before the Coroner confesseth the Fact and abjures the Realm The mutual pleas of Plaintiff Defen Tab 41 Other mean Acts Tab 42. TABLE 41. The mutual Pleas of Plaintif and Defendant viz. The delating before issue as Replication Rejoynder Sur-rejoynder c. The Issue it self Of the Fact and then the tryall is 1 Of a matter done in the Country by Jury where challenges are allowed viz. To the Array To the Poles 2 In Writs of right or appeals for life by Battail 3. In a Writ of Dower when the issue is taken upon the death of her husband by witnesse 4. By wager of Law 1. When the Tenant in a reall praecipe quod readâ— was not summoned 2. In meer personal actions growing without deed or privity of others 3. In Plaints in Counâ— Barons Of the Law as a Demurrer which iâ— when admitting the matters alledged either of them resteth in thâ— Judgment of the Law TABLE 42. Other mean Acts as 1. Apparance where of essoins which are Common as Essoine de mal venir Speciall 1. Of going beyond Sea 2. Of going ad terram Sanctam 3. Of the Kings Service 4. Demalo lecti 2. Continuance By Process Upon the Roll Dies datus Emparlance 3. Judiciall process A Mesne processe which is for any necessary act to be done as against Vouchee Prayee in aide also 1. Upon a fine levied to compell Attornment as 1 Per quae servitia 2. Quem redditum reddit 3. Quid juris clamat 2 In Petitions a Writ of search 3. In real praecipe upon a default petty Cape 4. Upon default after Voucher a petty Cape ad valentiam 5. In such as are for other Hereditaments upon default a distress 6. Against Jurors 1. A Venire facias 2. A Habeas Corpora 3. A Distress infinite Processe in nature of new Originals Tab 43. TABLE 43. Process in the nature of new Originalls they are Commandatory viz. such as command something to be done 1 Resummons Re-attachment 2 All certificatory Writs 3 A Certiorari to remove a Record into the Chancery 4. Writs to remove Suits By Writ as a Tolt to remove a Writ of right out of the Lords into the County-Court Pone to remove out of the Lords Court into the common place in all other causes By Plaint as a Recordare to remove Plaints in the County-Court Accedas ad curiam to remove Plâ—ints in a Court-Baron 5 A Miâ—timus to send a Record out of the Chancery into another Court of Record 6 A Procedendo to proceed in Suits 7 A Consultation to proceed in the Spirituall Court 8 A Writ of Main-prise to set one at liberty upon Bail 9 A Recaption for him whose Goods are distrained for the same thing 10. A Writ de Magna Assisa eligenda 11 A Certificate of Assise to Jurors to give a more perfect Verdict 12 A Proprietate probanda Prohibitory Writs Tab 45. TABLE 45. Prohibitory VVrits or Proces as 1. Prohibitions of this kind is an Indicavit 2. A Supersedeas of which kind are 1. A VVrit of Peace 2. A Libertate probanda 3. An Identitate nominis 3. Protections Cum clausula uolumus as Protectio quia profecturus Protectio quia moratur whither also may be referred Protectio quia in prisona 4. Essoine de malo lecti 5. A Ne admittas 6. A Quare incumbravit TABLE 46 Judgment which hath Judicial Writs belonging to it viz. Meer Judiciall and they are Such as lye within a year and a day after the Judgment In reall actions 1. Habere facias seisinam to puâ— him in possession upon a Free-hold recovered 2. A Writ to the Bishop to admit ones Clerk In personall Actions to have Execution of his Possessions as 1. Fieri facias to levy execution upon his Chattels 2. Levari facias to levie execution of the profiâ—â— of his Land and Chattels 3. Habere facias possessionem upon recovery of a term for years in aâ— Ejectione firmae c. 4. A Distringas for the Kings Amerciaments c. Bodily as Capias ad satisfacienduâ— Capias pro fine Regis Capias Utlagatum For the King A Scire facias to warn the Defendanâ— afteâ— a year upon recovery in real Actions to shew cause why the Plaintiff should not have Execution New Originals Tab. 47. TABLE 47. New Originals in the nature of Judiciall Writs to order some matters concerning Judgments and these are grounded Upon an Error A Writ of Error which is upon an Error in a Court of Record A VVrit of false Judgment which is upon an Error in a base Court Otherwise as Attaint which is to enquire whether a Jury of twelve men gave a false Verdict Audita querela which is for one being or to be in Execution to releive him upon good matter of discharge which he hath no means to plead A TABLE shewing the Pages in the English Copy of Sir Henry Finches Treatise of the Law from whence each Tablet takes it's beginning Table Page 1 77 2 95 3 106 4 111 5 116 6 130 7 134 8 155 9 159 10 164 11 167 12 184 13 190 14 198 15 205 16 These are taken out of the French Copy being omitted in the English 17 18 19 20 206 21 218 22 221 23 225 24 249 25 252 26 264 27 266 28 269 29 272 30 284 31 294 32 303 33 310 34 312 35 320 36 322 37 343 38 490 39 502 40 356 41 390 42 427 43 441 44 446 45 450 46 459 47 478 FINIS