any suche accion against the kinge For Bracton which wrote in king H. 3. time or nere thereupon saith in his .iii. booke vnder the title Contra queÌ„ coÌ„petit assisa in this wise Inter cetera videndum est quis sit ille qui deiecit Princeps ex poteÌ„tia vel aliquis nomine suo vel iudex qui male iudicauerit an priuata persona si princeps vel rex vel alius qui superiorem non habuerit nisi deum contra ipsuÌ„ non habebitur remedium per assisam imo tantum erit locus supplicationi vt factum suum corriget et emendet quod si non fecerit sufficiat ei pro pena quod deum expectet vltorem qui dicit mihi vindictam et ego retribuam nisi sit qui dicat quod vniuersitas regni et Barronagium suum facere possit et debeat in Curia ipsius regis sed si alius ex facto et disseisina principis statim vel ex post facto in seisinam institerit quamuis talis incidat in assisam et in penam vel tantum ad restitutionem secundum quod seisina ad ipsuÌ„ peruenerit statim vel ex post facto sine principe tamen conueniri non poterit per assisam quia licet quodamodo disseisinam fecerit tamen non per se sed cum alio s. cum principe et ita quod sine eo respoÌ„dere non potuit et ita non procedit assisa Indirecte tamen et quasi ex incidenti et sine breui comprehendi poterit persona principis ad hoc quod factum suum emendet vel in ê‘sonam suam reduÌ„dabit iniuria manifeste vt ecce Esto quod impetretur assisa tantum super eum ad quem res translata est sine principe et qui tenetur ad restitutionem et ad penam vel ad minus ad restitutionem et ipse respondeat quôd sine principe qui fecit iniuriam per se vel per suos respondere non debeat quia ipse princeps per se fecit iniuriam vel ipsi duo insimul extunc erit factum et iniuria in manu domini regis qui dici debet in facto quasi warrantus et quod tunc poterit si warrantus voluerit factum suum emendare quasi a lege compulsus et quam in persona sua cum sit ei submissus debet firmiter obseruare So that by Bracton it appeareth that no accion lyeth against the kinge but the partye greeued is dryuen to sue to the king by peticion But the reason why that aduowsons shoulde passe in the kings case by the order of the common lawe thoughe it were not expressed in the graunt was this I suppose because that landes or tenementes were not then compted as thinges that touched the roiall estate or that made the kynges crowne lyke as Liberties or fraunchises did For the one a comon persone might haue as well as the kinge but the other none might haue but the king or suche as were able to shewe his grant therof and therefore saith Bracton in his first booke vnder the title que res dari possint that for landes currit tempus contra regem sicut contra quamlibet priuatam personam Which is as much to say that if the king had right to any such landes or tenementes and hadde surcessed his time so longe that it exceeded the time of limitation in a write of right his highnes hadde lost then his right for euer And herewith agreeth Briton fo 29. But that is saith Britton of landes parcell of the kinges eschetes or pourchased landes and not of the auncient demeasnes of his crowne for of those nullum currit ei tempus if hee haue anye righte to demaunde them So that by Britton this reason will not serue for landes parcel of the crowne Ideo quere veraÌ„ rationem Howbeit since this statute made what landes soeuer they be those thinges that are comprised in this statut passe not without making expresse mencion therof Hetherto we haue spoken of the reason why at the common lawe aduowsons shoulde passe by graunt of the manour without being named now let vs see how since the makinge of this statute it shal lykewise passe by graunt of the manour without being expressely named and how not And if the kinge render vp to him that was in warde at ful age his landes or to a bishopp his temporalties although he make no mencion of knights fees or auousons yet all passe therwith for like as the kinges seisine in suche case is by these woordes omnia terra et tenementa without speakinge of fees or auowsons euen so being sued out of his handes by these woordes omnia terre et tenementa Liuerie p. 7. T 16 E. 3. p. 30. fees and auâ—wsoÌ„z do passe without making any mencion thereof And this appeareth .5 E. 3. .16 of the same king Where after the death of an ydeot the king rendred againe the lands to the heire not making meÌ„tion of fees or auousons yet he had them And likewise 41. et 44. E. 3. the kinge graunted the temporalties to one that was elect bishop before he was coÌ„secrat H. 41. E. 3. f 44. E. 3. f. 22. aiudged that fees aduousons passed wtout making any meÌ„cion therof yet at the time of the graunt he was not bishop for he lacked consecracion And the reson in all these cases is for that the king was but seised in another bodies righte and by his liuerie he geueth nothinge vnto them but only restoreth theÌ„ to their right they had before Like law should it appere to be by Finchden .29 E. 3. H. 29. E. 3. in Fitz. ti Quare impedit p. 190. If auousoÌ„ of a church be appeÌ„daÌ„t to a Priorie which Priorie is seised into the kings haÌ„ds by resoÌ„ that an alieÌ„ is patron of it afterward the king dimiseth the saide Priorie cum pertinenÌ„ not makinge mention of thauouson vnto the saide Prior yelding a rent to haue to hold the same during the warre And his reason is this for that the right freehold in this case remaineth still in the Priour notwithstandinge any such seisin the kinge is but to haue an annuel profit therof no right but if anye bee to sue dower or liuerie with a particion out of the kinges haÌ„des they by that cannot haue thauouson if mencion be not ther of made no more than they can that claim by Graunt and yet the king rendreth them the thing in respect of a right be fore as he doth in the other cases But what then they claim not the whole lande that is in the kinges hands but only parcell therof then thauouson euermore abydeth with that that remaines if expresse mencion be not made therof and so not like the cases before where the king makes liuerie of the whole And this case appeareth also in the said booke of 5. E. 3. And note
ne voilomus nous my de ceux qui deueignount sotes per ascun maladye Vpon these words of Britton I note .iij. things one is that the king shal not haue the custodie during theire liefes but duringe theire Ideocy the second notwithstanding the lande is in the kings handes yet the other lorde shall haue theire seignories which is by way of peticion as I take it and the thirde is that the other lorde shall not haue the wardshippe of the heire nor of his landes but onely the kynge whiche thiâ—de thingê by this statute of prerogatiue are not so plainelye set fourthe and also by this statute it appeares that the kynge shall haue the custodye of suche Ideottes durynge they re lyues for the woordes bee Et post mortem eorum reddat eam rectis heredibus and not beefore The manner howe the kynge shall come to his prerogatiue appeares by a booke case .16 Edwarde the thyrde 16. E. 3. in Fits ti Liuery P. 30. where Sharde sayes that when the kyng is enfourmed that there is suche an Ideotte hys highnes shall sende for hym and cause hym to bee broughte beefore hys chauncelloure or some other whom hee shall appoynte and yf by examinacion hee bee founde an Ideot yet his hyghenesse oughte not to sease his landes vntill suche tyme as hee bee founde an Ideot by office And in the newe Natura breuium folio 232. it appeares that the kinge appointes all this matter to theschetour or sherife bothe to examine and enquire in whiche sayde Natura breuium folio 229. it appears that this office when it is founde shal haue relacion a natiuitate to auoide al meane actes donne by the Ideot that is to saye his feffements or release but learne and enquire whether suche feffees shall bee put out by thoffice without anye Scire facias to bee awarded againste them M. 18. E 3. in Fits ti 30. Scire facias P. 10. et 106. In 18 .32 E. 3. a Scire facias was awarded in that case and learne allso whether the office shall haue relacion for the profites from the tyme of hys natiuitie or onelye from the findinge of thoffice Then to the exposicion the woordes bee Rex habebit custodiam terrarum fatuorum naturalium By these woordes it apperethe that he must bee a fole natural that is to saye a foole a natiuitate â–ª for yf he were once wyse and beecame a fole by chaÌ„ce or misfortun M. 18. E. 3. Fits ti Scire facias P. 10. the king shal not haue the custody of him and so it is agreed in .18 E. 3. And also in the newe Natura breuium fol. 2â—3 and the manner of the tryall of hym to bee a foole naturall appeares in the sayde Natura breuium folio 233. that is is to saye yf hee cannot tell to tweÌ„tye pence or tel his age or who was his father and mother or such like thinges whereby yt may appeare hee hathe no kynd of vnderstandinge in that that is eyther for hys profyte or dammage But if hee bee learned or apte to learne thenne is hee no Ideot as maister Fitsherbert there thinks M. 31. E. 3. ti sauer de defaulte P. 37. and Grene sayethe in .31 Edwarde the thirde That yf hee bee able to begette eyther sonne or doughter he is no foole naturall The woordes of the statute bee further Capiendo omnes exitus eorundem sine vasto et destruccione et inueniet eis necessaria sua By these woordes it appeareth that the kynge maye take the profetes to hys owne vse fyndynge them theire necessaries And therefore in the booke beefore of Tricesimo primo of Edwarde the thyrde the kynge dyd not lette the lande vnto one of the cosyns of the Ideot yeeldynge a rente butte these woordes findynge them necessaryes is not onelye mente to the Ideottes themselues but allso to all them that hange vpon them as they re wyfe chyldren and familye And allso by these woordes sine vasto destruccione M. 3. E. 2. in Fits ti Gard. P. 5. it appearethe the kynge is bounde to reparacions of theire landes and tenementes The woordes bee allso De cuiuscunque feodo terre ille fuerint By those woordes it shoulde seeme the kynge shoulde be preferred in thys tytle of Ideocye beefore anye other lords whyche myghte clayme the Ideot as hys warde howebeit learne what other menne thynke therein Et post mortem eorum reddat eam rectis heredibus Bye these woordes it shoulde appeare that the kynge shoulde saue the custodye durynge the lyfe of the Ideof and that than an Ouster le mayne in nature of a lyuerye shall bee suyd of the same oute of the kynges handes butte whether yt shall bee made wythe the yssues and profytes from the tyme of the Ideottes deathe or onelye butte from the time of the tender of the Oustere le mayne learne butte yf the landes that the kynge hadde so in custodye bee holden of hym in capite thenne notwythestandyng these wordes of the statute yet the kynge shall haue wardeshyppe prymer seisin and all other prerogatiues as yf hys tenaunte in chiefe hadde dyed seased thereof beynge noe Ideot as it maye appeere in the newe Natura breuium fol. 2â—6 And there it appeares folio 2â—2 allso that allthoughe the Ideot helde noe landes of the kyng yet a Diem clausit extremum shall bee awarded after hys deathe to enquire what landes hee dyed seased of of whom they are holden c. And it is to be noted that yf one be fouÌ„d Ideot by office before the king seaseth the lands the Ideot dies yet the kynge shall sease beecause of these woordes in the statute â— post mortem eorum reddat eam rectis heredibus whych his grace cannot do but vpon a seisure and thys appeares 18. M. 18. E. 3. in Fits ti Scire facias P. 10. Edwarde the thirde And note allso that if ther descende to an Ideot no possession in landes butte onelye a ryghte bee it righte of entre or title of entre or ryghte of accion the kynge shall not enter and haue the custodie of the same 1. H. 7. 15. as appeares in 1. Henrye the seuenth and yet if hys tenaunt of landes holden of hym by knyghtes seruice bee disseised and dyethe his heire within age the kynge shall enter and holde the same in warde and therfore learn what is the reason that shoulde make a difference in these cases The woordes be further Ita quod nullatenus per eosdem fatuos alienentur nec quod eorum heredes exheredentur Bye these woordes it appeareth the landes cannot bee aliened by the Ideot nor the heires disheryted and therefore if the Ideot make a feffement or release of his landes and that founde by office the kynge shall auoyde it as I haue beefore noted and so likewyse his heires after his deathe by force of these woordes of the statute And yet it appeares .31 E. 3. that a recouerie by
lande within this realm holden by NormaÌ„s which after they begaÌ„ to adhere to the FreÌ„ch king the kings enemy became traytors vnto his highnes they forfaited al their lands by order of the coÌ„moÌ„ law to the king of whoÌ„soeuer they were holdeÌ„ Howbeit in such cases after the forfaiture if the king had geueÌ„ these laÌ„ds to any other he might not haue geuen them to holde of him selfe but onelye of them of whom they weare before holden as this statute plainelye declareth that king Henry the third so did M. 20. â— 3. ti Assi in Fits P. 124. et ê‘ 46. E. 3. ti Peticion P. 19. And likewise in 20. .46 E. 3. it appeareth that if the king do otherwise his patent shall be repelled and made to holde of the lordes of whom the landes weare holden before the treason and that by a peticion of ryghte to be sued vnto the king for the redresse of the same for other remedie haue they none distrayne they may not as appeareth in the newe Natura breuium f. 180. And further it should appeare by the sayde boke of .20 E. 3. that the king ought not to reteyne such land in his owne handes no while but must dispose theÌ„ ouer to holde of them that were lordes thereof at the time of the treason committed Hereby may you gather that this statute in his first braunch is but a confirmacion of the common law and that long time before the makinge hereof kinge H. 3. had this prerogatiue as it dothe manifestlye appeare in the later braunche thereof And also by Bracton in his first boke in the title De custod ' maritagijs dnÌ„orum and likewise in Britton folio 28. The woordes of the statut be further Hoc similiter intelligendum est si aliqua hereditas discendat alicui nato in partibus transmarinis et cuius antecessores fuerunt ad fid eÌ„regis Franciae de tempore regis Iohannis Angliae sicut de baronia Monumete post mortem Iohannis de Monumeta cuius heredes fuerunt de Brittannia vel alibi By this braunch it shoulde appeare that at this time men of Normandy Gascoign Guion Angeo Brittain were inheritable wtin this realm as wel as English men because that they were somtime subiect vnto the king of England and vnder their dominion vntil king Ihons time as is aforesaide and yet after his time those meÌ„ sauynge suche whose landes weare taken awaye for treason weare still inheritable within this realme till the makynge of this statute And in the time of peace beetweene the twooe kinges of Englande and Fraunce theye weare aunswerable within this realme if they had broughte anye action for theire landes and tenementes as it doth plainly appere by Bracton in his fifth boke in the title De exceptione quia alienigenÌ„ for these be his words Est auteÌ„ alia exceptio qÌ„ competit tenenti ex persona petentis propter defectuÌ„ nationis qÌ„ dilatoria est et noÌ„ perimit actioneÌ„ Vt si quis alienigena qui fuer ' ad fideÌ„ regis FraÌ„cie actioneÌ„ instituit versê° aliqueÌ„ qui fuerit ad fidem regis Angliae talis noÌ„ respondeatur saltem donec terre sint communes nec etiam si rex ei coÌ„ces serit specialiter placitare quia sicut Anglicus non auditur in placitando aliquem de terris tenementis in Francia ita non debet alienigena Francigena qui fuerit ad fidem regis Franciae audiri placitando in Anglia Note here that he sayethe that this exception is but dilatorie and not peremptorie whiche proueth that hee shall haue his accion at an other time that is to say in the time of peace And also he sayeth after Donec terre sunt communes which is as much to say vntill suche time as there is peace beetwene Fraunce Inglande Also Bracton in his thirde booke vnder the title quod mulier ostendat warrantum per quem petit dotem sayethe si warrantus fuerit ad fidem regis Franciae excipiatur de warranto remanebit dotis exactio in suspenso imê‘petuum vel ad tempus saltem donec terre fuerint comunes This warrant of dower is the heire of the husbands for by thauÌ„cient law if a woman had brought her writ of dower against any other but the heire he was not bounde to aunswere her dower vntill such time as she had brought foorth her warraunt that is to say the heire In like case after shee is endowed she is not bounde to aunswere to anye other without the heire and if it might appeare that the heir had no righte in the second part then shoulde shee be barred of her accion of dower as it appeareth in the case beefore that hys right is suspended when he is a FrenchmaÌ„ and the .ij. realmes at warre Howebeit it appearethe as I haue sayde before that this exception is not peremptorie but that after the twoe realmes be agayne at peace she shall haue her dower The woordes of this braunche be also in the Copulatyue that is to say that the auncester must be of the allegeaunce of the Frenche king that the heire of the sayd auÌ„cester is born in the part of beyond sea I put case than that the auncestour were of the allegeaunce bothe of th one kynge and the other that is to say the Frenche king and the kyng of Englande whether is this within the compas of this statute For Bracton in his saide v. book vnder the title De exceptione quia alienigena saith Quod suÌ„t aliqui qui sunt ad fidem vtriusque sicut fuit W. comes Marescallus manens in Anglia et Michaell de Seins manens in Francia et alii plures et ita tamen quod si contingat guerra moueri inter Reges remaneat personaliter quilibet eorum cum eo cui fecerit ligeantiaÌ„ Whereby it shoulde appeare that of suche as were in allegeaunce to bothe kinges the kinge shoulde haue no eschetes of their landes For the woords of the statute bee not onlye ad fidem regis Franciae but also et non ad fidem regis Ang. ideo quere And whoe shal bee inheritable at this daie that bee borne in the parties beyonde the sea and who not See the statute thereof made in the .25 yeare of king Edwarde .3 de natis in partibus transmarinis The thirtenth chapiter QVando aliquis qui de rege tenet in Capite in fata decedat et heres eius ingrediatur tenÌ„tum qd ' antecessor suus tenuit de rege die quo obiit antequam fecerit homagium regi et seisinam suam ceperit per regem tunc nullum accrescit ei liberum tenemeÌ„tum Et si obierit seisitus per idem tempus vxor eius noÌ„ habebit dotem de tenemento illo sicut contingit de Matilda filia comitis Hereford vxoris Manusel marescalli qui post mortem wilhelmi Marescalli Anglie fratris sui cepit seisinam
But as to that a manne maye answere and saie that a Chaunceller hathe two powers the one absolute the other ordinarie and this trauerse is before him by an ordinarie power in whiche case all thinges touchinge the same must proceede as it shoulde before anye other ordinarie iudge of the common lawe and therefore it shoulde appeare by a booke in .4 H. 6. fo 12. et 22. Trauers 12. Edward 4. fo 9. that if the partie be nonsuit in this trauerse it is peremptorie vnto him for so might hee delaie the kinge infinitely tamen quere and learne whether one maye procede with a trauerse the heire beeinge within age or else shall tarrye till hee bee of full age for the booke is in 5. T. 5. E. 4. f. ◠Edwarde 4. that hee shall tarrie till the heire cometh to age But in this question one may make this distinction that is to saye Whether the trauers be tēded by a strāger or by the heir for sōtymes it happeneth that the heyr shal traūs as wel as a strāger For no more then a straunger can haue ouster le maine wtout trauersinge all the kinges titles no more may the heir haue liuerie wythout trauersinge all his tytles and then if the trauerse bee to bee taken by the heire hee shal not be thereunto admytted vntill hee bee of age because that beefore that time he hath no cause to haue his liuerie But that reason serues not where the trauerse is to bee taken by a straunger and therefore it should seeme that hee shoulde haue it by and by For hee hathe cause to haue an ouster le maine forthwith and that with the meane issues and profites and therefore it were no reason that the nonage of a thirde person shoulde hinder him with whome hee is not to plede or to trye anye right but onelye with the kynge For if the childe haue right hee may enter vpon the stranger after hee hath his ouster le maine and trye hys righte with him and so at no mischiefe And note as I saide before that the heire must trauerse all the kinges titles ere hee can haue liuerie and that whether the kinges tytle be in his owne right or in the right of an other in his owne right as if there bee a recorde that proues this lande to be aliened wythout the kings lycence or that thauncestour of thenfaunt that woulde sue his liuerie was but tenaunt for terme of lyfe the reuercion to the kynge and hathe made a feffement to the kinges disheritance or suche lyke in these cases notwithstandinge the kinge did not seise by vertue of these recordes but onelye by vertue of thoffice whyche founde thauncestour of thinfaunt dyed seised the kynges tenaunt in chiefe of estate in fee simple yet the heire geatteth no generall liuerie vppon that office vntill suche time as hee hath auoided these other recordes And if hee haue it before it is a cause of reseiser So it is where the kynges title is in righte of anye other as if one bee founde heire by office and after by another office an other is founde heire of the same landes to the selfe same auncestour in this case he that was first found heire cannot haue his generall lyuerie vntill suche time as hee hathe destroied the other title either by an enterpleder or a trauerse for if it so come to passe that he cannot enterplede then must hee trauerse or by some other meanes auoide the recorde ere hee can haue his saide generall liueries and if he sue his generall liuerie otherwise it is then missued and a good cause geeuen to the king to reseise And this enterpleder or trauerse beetwene them that claime as heirs is by the order of the common lawe and not by statute and can neuer be but where both theire titles bee founde first by office and the reason is because that as sone as the matter is discussed betweene them hee for whome it is founde shall forthwith haue hys general liuerie which he can neuer haue if his title bee not first founde by office and therefore not like the case where a straunger trauerseth with the kinge that is to haue but an ouster le maine for there the kinge hadde no right too seise and therefore his tytle nede not to bee found by offyce as I haue saide before But in the other case who so euer shall claime the lande as heire his highnes hath right to seise in the right of the saide heire and to haue his primer seisine or wardshippe as the case dothe require And therefore his title must bee first founde by office but where one heire is to trauerse with an other heire duringe the kinges possession this shall not bee vntill hee that is first founde heire by thoffice come of age because vntil that tyme the landes ought to remaine in the kinges handes and then hee to haue liuerie but whether hee that was firste founde heire shoulde tarrye for thage of him that was laste founde heire I haue said my mynde therin before in the tytle of Enterpleder But where a straunger is to trauerse hee shall not tarrye for thage of the heire for the causes before remēbred And so there appeareth to bee a great difference beetwene a trauerse taken by him that is a straunger and by him that is heire But at this daye moste liueries that bee sued are specyall liueries whiche conteine in them selues a pardone and therefore the myssuinge of them is dispensed withall by the woordes of the pardone conteined in the saide liuerie And so manye of these thinges that I haue spoken of before are not much to bee obserued if the liuerie or Ouster le maine bee not generall For I see no lett but that an ouster le maine maye be graunted specially as well as a liuerie And laste of all it is to bee noted that this trauerse extendes not to euerie recorde that entitleth the king but onelye to suche recordes as bee trauersable as an office or suche like as I shall shewe my mynde therein more fullye in the chapter of Peticion Other trauerses there bee whiche bee trauerses by order of the common lawe And not by any statute as trauerses vppon enditements or presentmentes whereof I entend not to entreat in this place amonge whiche trauerses there is also by order of the common lawe a trauerse concerninge goodes and cattalles of persons attainted for the whiche a manne shall trauerse with the kinge althoughe his title thereunto bee by double matter of recorde As take the case to bee a manne is attainted of treason or felonye or outlawed in a personel accion and after by office it is founde that hee was possessed of a horse or anye other gooddes as his owne proper cattell where in deede they bee the goodes of a straunger in thys case the saide straunger shall trauerse this office with the kinge So is it if it bee founde by office that a manne outlawed in a personall accion is seised
of certeine lāds which in deede are my landes and theschelour by force of that fals office takes the profites in this case I maye disturbe hym without trauersinge thoffice And those cases appeare .4 Edwarde .4 fo 24. 13. Edward .4 fo 8. T. 9. H. 6. fo 20. M. 47. E. 3. fo 26. Then further The woordes of the saide statutes of anno 36. bee that if anye came before the Chanceller and shewe his right whereby it may appere by good euidence that hee hathe an auncient righte and good tytle then the chaunceller shall let the saide landes to the partye that tendeth the trauerse yeldinge to the kinge the value if it bee aiudged for the king in maner as hee and the other Chaunceller haue done before him by theire good discretions so that hee to whome it shal be letten finde suretie to doe no waste or destruccion beefore the trauers bee discussed By the woordes of this statute it shoulde appeare that the Chauncellours before this time by theire discrecions hadde vsed to let the landes to the partie to ferme Quare impedit p. 34. and that is true for the kinge vsed so to doe vppon a peticion whiche was made to his highnes by the order of the common law in steede of a trauerse nowe vsed as appeareth 5. Edward 3. Trauers 12. and therefore I thinke his highnes may do so at this day bothe vpon a peticion and a Monstrance de droit although the statute make no mencion thereof for so it was vsed to doe by order of the common lawe as it appeareth by the booke before And of this matter see the booke .3 Henrye .7 Now is this statut amplified and made plainer in thys point by the statute made in the .8 yeare Henrie .8 the .26 chapter whiche will that no landes or tenementes seysed into the kinges handes vppon enquest taken before eschetours or commissioners bee in anye wise graunted or letten to ferme by the Chaunceller or Tresorer of Englande or anye other the kinges officers till the saide enquestes or verdites bee retourned fullye intoo the Chauncerie or theschequer but all that time shall abide in the kinges handes and by a moneth after the saide retourne if it bee not so that hee or they that feele themselues greeued by the saide enquest or that are put out of theire landes and tenementes come into the chauncerie and offer to trauerse the saide enquestes and to take the saide lande or tenementes to ferme whiche if they doe then the saide Chauncellour Tresorer or other officer shal let them haue them to ferme shewinge good euidence prouing theire trauerse to be true accordinge to the forme of the statute of an .36 E. 3. to holde till the issue vppon the saide trauerse taken bee founde and discussed for the kinge or elles for the partie and also fyndynge sufficient suertie too pursue the saide Trauers with effecte and to render to the kinge the yearely value of the tenementes whereof the trauerse shal bee so taken if it bee discussed for the kinge And if anye Letters patentes of anye landes or tenementes bee made to anye other parson to the contrarie then the same to be void after the moneth Hereuppon is to bee noted that the shewinge of the euydēce is onelye rehersed to the lettynge of the landes to ferme not to the trauerse For by this statute hee maye trauerse without shewinge anye euydence but not haue the landes to ferme Also by these Statutes hee is not bounde to noe certeine tyme for takinge of hys trauers but onelye for takinge of the landes to forme for hee maye tende hys trauerse when hee will so hee desire not the ferme of the lands But if hee will haue them to ferme hee must tend his trauers within the moneth as appeareth P. 13. E. 4. fo 8. and nowe by the statute of anno 1. H. 8. ca. 9. hee hath three monethes libertie to doe it Also note the thinges that he must fynde suertie for that is to say to sue with effecte to paye the rent after the trauers bee discussed and to doe no waste or destruccion In this woorde rent is emplyed all the arrerages of the rent that shall encurre meane betwene the takynge of the ferme and the discussinge of the trauerse and yet it is not so expressed Also the lease that is made to hym that tendes the trauerse is not of anye terme certeine but onelye by these woordes Donec discussum fuerit for the woordes of the statute bee so and therefore as soone as the trauerse is founde againste him that tendeth it by and by the lease hee hadde in the landes by force of the Statute is voide as apperethe in .4 Edwarde the .4 folio .29 wythout anye further proces Howbeit forasmuche as the woordes bee to holde till the issue vppon the saide trauers taken bee founde and discussed for the kinge or for the partie I woulde learne if the partye bee nonsute vppon hys trauerse or that the trauerse bee aiudged againste him vppon a demurrer in lawe whether the lese shoulde bee voide or not like as it shal bee vppon the issue founde And it seemes it shal bee by the woordes comprised in the saide statute of anno 36. Edwarde .3 But not by any words comprised in the saide statute of an .8 H. 6. For the wordes bee tanque il soit aiudge and therewih agreeth the booke in 4. H. 6. fo 12. Also note that before this statute of anno .8 H. 6. the kynge did vse to graunte the custodye bothe of the landes and body to anye other to whome hee woulde after office and beefore anye trauers tended and this graunt was good because it was not then restrained by any statute Howbeit vppon the trauers tended a Scire facias shoulde haue beene awarded against the patentee comprehendinge in the same all the trauerse And if he had beene retourned warned and came not his patent had ben voide eo facto as appeareth in the saide booke of .4 Henrye .6 at least wise for the landes and yet there was then no estatute that made them voide quod nota And then by and by they shoulde haue beene letten to ferme to him that hadde tended the trauerse But nowe whether since the makinge of the saide statute of an .8 Henry the .6 fo 17. a Scire facias shal bee awarded against the Patentee vppon a Trauers lerne for the saide statute makes suche letters patentes voide for the graunt of the landes but not so for the bodye and therefore it seemes a Scire facias shal bee still awarded and the graunt also of the saide landes is not voide till after the moneth H. 8 H 6. 17. 5. E. 4. .3 .5 M. 14. E. 4. 1 And nowe by the saide statute of anno .1 Henry .8 not till after three monethes and so it shoulde seeme by the booke of .5 and .14 Edwarde .4 and 8. Henry 6. that a Scire facias shal bee awarded at
notwithstandinge thoffice for it did not appertaine to mee to trauerse thoffice and discharge the tenure but that matter was left to my tenant to doe and seeinge hee did it not hee hath charged him selfe of a tenure by way of conclusion to the kinge as well as to mee but it is not so in the other case Also it is to bee noted that if the kinge seise landes in title of Wardshippe and make a feffement thereof in thys case the heire neede not to sue his peticion but may haue a scire facias to repele the said letters patents because the king was deceiued in his grant as it appereth T. 7. H. 4. fo 17. M. 21. E. 3. fo 50. For there the king himselfe is in possession still till liuerie be made so the heire there hath no cause to sue by peticion the kinge is bounde to deliuer it vnto him in whose right he seised Also note that sute by peticion can be to none other than onely to the king for no such sute shal be made to the Quene or to the lord prince for these parsonages haue no such prerogatiue as it appeareth 10. 11. Trauers 51. H. 4 et 10. et 14. E. 3. but though the kinge hee seised sometime in an other bodies right and not in his own Peticion 4 Voucher 135. Scire facias 135. yet the sute that is to be made must bee by petition as well as if hee were seised in his owne right as appereth .10 H. 4. And as I said in the beginning a manne shall haue his peticion for goods as well as for landes as where theschetour seyseythe goodes of one that is outlawed and hathe accoumpted for them in the Eschequer and after thutlagarie is reuersed in this case the partye hathe no remedy for his goods but onelye by peticion Peticion 8. And this case you shall see in .34 H. 6. Howbeit Catesby Hussey hold oppinion to the contrary here of M. 1. Peticion 10 H. 7. And learne if a peticioÌ„ be sued for lands and the plaintife be nonsute whether it be paremptorie or not beecause some saye that that sute is as it weare hys write of righte PeticioÌ„ 11. et 17. and hereof see the booke 11. H. 4. .3 H. 7. ¶ Where a Scire facias must be sued before a lyuerye or Ouster le maine IF the king be seised of a ward and grantethe yt durante minore etate now when the heire commeth of full age and sueth his general liuerie he nedeth not to sue a Scire facias against the pateÌ„tee because his estat is determined by the ful age of the heire and yet it may be that the heire had forfaited his maryage vnto the patentee and then hee hathe good cause to reteine the lande til he bee satisfied of the forfaiture But the lawe shall not entende anye suche forfaiture to bee and therefore ther nedeth no Scire facias be sued Like law is it as semeth if the king graunt the wardshyppe for no time certaine but quamdiu in manibus nostris fore contigerit if he make a special liuerie vnto the heire beeinge within age there needed no Scire facias to be sued so is it where the grant is but dutante beneplacito nostro but if the kyng haue land in ward and enfeffeth therof a strauÌ„ger some think the heire nedeth not to sue any Scire facias against the feffee but at his pleasure and some other thinke he muste beccause his estate is not determined by the full age of the heire as it is in the firste case I put before And it may be that an auncester collaterall vnto the childe hath released with warrantie whiche is descended which the feffee might pleade if he came in by Scire facias or els by the liuerie she saide warrantie is vtterly lost these cases appeare P. 7. H. 4. f. 27. 30. 43. 10. M. 12. E. 3. 50 2. H. 7. f. 2 H. 6. f. 20 M. 1. H. 7. f. 11. .5 E. 4. f 3. Howbeit me thiÌ„ks it were wisedome for the heire to sue a Scire facias to th entent that he therebye with the kinges helpe mighte repelle the sayde letters pattents and bringe them as it were out of his way whiche thinge hee may â—oner bringe to passe by the kinges sute than by hys owne Allso the heire when hee sues liuery nede not to sue anye Scire facias againste him that hathe the landes to ferme vppon a trauers as appearethe in 1. H. 7. Liuery P. 18 for hee hath noe terme certaine in the land but donec discussum fuerit whiche woordes are beecome voyde after the heire is of full age because it can not be then discussed with oute preiudyce of the heire and therefore voyde Then further let vs see wheare hee that sueth by peticion or that tendeth his trauers or Monstrans de droit shall sue a Scire facias and where not And as to that it is a generall rule that yf the kynge haue graunted the wardshyp of the landes ouer for any terme certaine or granted any other certaine estate in the landes he that sueth his peticion Monstrans de droit or trauerse muste sue a Scire facias againste the kinges patentee in suche case Trauers 25. but hee nedeth not to sue any agaynste the heire in whose righte the king is seised of the lande because he that sueth doth not pleade withe the heire but onelye with the kynge or such as hathe his intereste as appeareth in 37. lib. ass Like law it is if the kyngs grant be but durante beneplacito nostro or that it bee made hangynge the trauerse peticion or Monstrans de droit in this case hee that suethe neede not to sue any Scire facias And these cases appeareth in 5. E. 4. f. 3. 13. E. 3. Brief P. 260. And note that if the kynge graunt the wardshippe to one whiche graunteth it ouer to the husbande and to his wife then must there a Scire facias be sued bothe againste the seconde lessee and the patentee but the wyfe nede not to bee named in the Scire facias For there lyethe no voucher in this Scire facias Howebeit in a writ of garde she shoulde haue bene named but also of the voucher Brief 618. and this case is adiudged 46. Edwarde the thirde and yet neuerthelesse Neuton is of oppinion in S Henry the sixte f. 17. that no Scire facias shall bee awarded againste the lessee in this case but onelye against the kings patentee And learne if the kinge grant but the bodie alone whether there nede anye Scire facias to bee sued or noe Also note this case that is to say where the king seised forwardshippe beefore office and made a graunt ouer and after office was founde wherbye it appeared that the childes father in whose right the kinge seised Assise P. 156 was but tenaunte for terme of life the
seisin can not be deliuered out of him vntill suche time an Ouster le maine bee sued as if the king be seysed by office of the lande of any Idiots or for aÌ„nuÌ„ diem vastuÌ„ of lands of any that is attainted in these cases he that shoulde haue these landes after the kynges title determined muste sue an Ouster le maine otherwise yt is where the kyng is not seised of the land but only entitled to the profites as of the landes of him that is outlawed in a personall action or of clerke conuicte or suche like there nede no Ouster le mayne to be sued as appeareth in .8 E. 2. 4. Trauers 28. E. 3. and .9 H. 6. f. 20. and if the landes whiche is seysed into the kynges handes bee holden ioyntlye bye manye yet euery one of them by hymselfe may sue hys Ouster le maine of his owne parte withoute his companions as appeareth in .2 Assise p. 166. H. 4. Lyuerye THe maner of the suing of a generall liuery doth partly appere in the title of Liuerie in the great abridgemeÌ„t of Iustice Fitsherbert A. 12. H. 4. ti Liuerie p. 4. A. 21. R. 2. ti Liuerie p. 5. Wher it is declared that after the heire that was in the kings warde is come to full age then a writ De etate probanda shal be awarded vnto the shirife of the shiere where the said heire was borne to eÌ„quire of his age in which case it is required by the lawe that euerye one that shall passe in that enquest shal be of the age of .xliij. yeares meaning therby that they euery one of them shoulde be of full age at birth of the childe beecause that suche haue better knowledge and remembraunce then other of lesser age haue and that the heire that is in warde enforme the enquest by certaine signes and tokens of the tyme of his birthe as to say that that yeare there was a great tempeste or a greate plague or suche like which signes so geuen in euidence shal be returned by the shiriue as well as the principall mater But whether it bee requisite to haue xij or a lesse number in the sayde enquest or not learn for soome think that any number from two vpwarde will serue beecause the triall is by proues and see the newe Natura breui um fo 136. wher it appereth that this writ of Etate ê“banda was directed to the eschetour of the countie where hee was borne and not to the shiriue Howebeeit note alwayes that theye wheare the lande is shall neuer enquire of this mater vnlesse the birthe and lande weare bothe in one shiere for theye haue enquired of it allredy that is to say when theye dyd fynde the firste offyce Thus when theye haue founde his age that enqueste shall bee returned into the Chauncerie and from thence shal bee awarded a write to the Lorde Keeper of the priuie seale signifying vnto him that the heire is of full age and vppon that a priuie seal shall bee directed to the Chamberlaine of Englande to receiue his homage whiche beynge receiued the sayde lorde Chamberlaine shall certifie the lorde Chaunceller by write of the receipte thereof and then shall the heire haue his liuerie But it seemes that if the heire were neuer in warde but of full age at death of his auncester and so founde by office that thenne hee shall haue liuerie as is declared vppon that office onelye without suynge anye write of Etate probanda for the writtes of liuerie in thys case make no mention of anye Etate probanda as they doe in the other case but if the heire bee withein age and in the kyngs warde and after when he comes to his ful age other landes descende vnto him whiche the kynge allso seisethe by an enqueste that fyndes the heire of full age yet this not withstandynge hee must now sue an Etate probanda vppon bothe offices as appearethe in M. 13. Henrye the fowerthe And the reason of it is M. 13 H. 4. beecause the fyndynge of hym of full age is but as voide as longe as there is a recorde whiche founde hym within age to the whiche record the kynge mighte cleaue vnto as the best recorde that makethe for hym vntyll suche tyme the contrarie thereof be proued bye the wryte of Etate probanda Howebeeit at this day the statut made Anno. 33. H. 8. hath much abridged the fees that haue bene geuen vpon the sute of a general liuerie namely for liueries to be sued of clere yearely value of v. li. or vnder and that it may be sued without any office to be founde But I do not see that the maner of the sute is in any other point altered or changed by the sayd statute but it remaines as it did before And that statute also geueth men licence to sue a generall liuerie of landes not excedinge the cleare yerelye value of .xx. li. whereby I see no let but that a man may sue his generall liuerie also for landes aboue the yerely value of xx li. as he might haue done before the makynge thereof for this statute is not contrarie to anye lawe that was before in that pointe sauinge that a general lyue uerie vnder the value of .xx. li. can not passe or be sued yf he haue not firste his warrant from the maister of the kynges wardes and liueries surueyours atturneys and generall receiuour or three of them signed and subscribed with their names and hands Thus may you see the maner of the suing forth of a generall liuerie which liuerie may not be sued by parcelles as I haue sayde before but entierlye that is to say of all the landes the kinge is or ought to be seised of in his right that sues the liuerie And therefore if the heyre sue liuery but of parcell of that that is founde by office or yf the auncester we are seised of other landes than are fouÌ„d bye office yf the heire sue his generall lyuerie beefore an offyce thereof founde omittinge them in the liuerye the lyuery is missued T. 12. R. 2.44 E. 3. f. 1â— et 25. 2. H. 7. f. 2. as appereth in .12 R. 2. 44 E. 3. 2. H. 7. and therefore it beehoues the heire beefore hee sue his lyuerye to cause an office to bee foynde in euerye sheere where hys auncester hadde anye landes And this entier lyuerye is intended as well of landes holden of other lordes beinge in the kinges handes as of the landes that are holden of the kinge and therefore if a manne holde of the king in chiefe by knightes seruice and of other lordes in socage and die his heir being a daughter within the age of xiiii yeres in this case when the sayd daughter cometh of the age of xiiii yeres she getteth no liuerie of the lands holden in socage but must tarry till she be of the age of xvi yeres that she may then sue liuerie of the whole as appereth .35 H. 6.
the new Natura breuium fo 26â— and in .5 H. 5 H 5. H. 5. I finde a scire facias sued vpon this statute against him that had liuerie because an office hath found an other to be nerer heire to the auncestour that dyed than was hee that sued liuerie So alwaies as farre as I can finde it is sued vppon a recorde the disproues the liuerie or ouster le maine and not vpon any that affirmes it whereby I suppose that yeluertons opinion is lawe as is beefore declared And it semes that by this statute the king must sue a scire facias al though the recorde or title that is found for him bee founde within a yere after liueri or ouster le maine sued And lerne whether Assise lye against the eschetour that sesseth without a scire facias in cases where a scire facias should be sued For by the sta of W. 1. ca. 24. assise lieth against him in cases wher he seiseth anye landes by colour of his office wtout speciall warrant or commaundement or certeine authoritie that be longeth to his office so to doe And learne whether the king by that seisure hath any possession for if the king seise without a scire facias where he ought to sue a scire facias the partie hath no remedy but to sue vnto him by peticion euen as he should do if his highnes had seised any other lands of his without cause Howbeit the king by such a reseiser vndoeth not the parties possession so that he shal bee saide an entruder from the time of the liuerie or ouster le maine sued as it doth in case the reseiser had bene vpon a scire facias wherfore in such case although the partie cannot be suffred to recouer his possession againe by entrie vppon the king yet when the kinge graunts it ouer he may now enter or haue assise Trauers 26. as appeareth .24 E. 3 fo 34. et 43. li. Ass Also note that this statute that geeues the scire facias extendes but vntoo him or them haue liuerie or ouster le maine or anye other claiming by them For if after liuerie on ouster le maine sued a stranger by an eigne title in disaffirmyng the tenaÌ„ts interest enter as heire vpon him or recouer by assise of mor dauncester or any other accion auncestrell against him is entred into the land as heire nowe because the landes are holden of the king in chiefe his highnes may seise the saide land for primer seisine or title of Wardshippe as the case doth require without any scire facias 21. E. 3. fo 1. as appeareth .21 E. 3. For it is not to be said now a reseiser because against hym there was no seiser made of the saide landes before And lerne enquire if he that missueth the liuerie be within age whether the king shal reseise in that case as he shall doe if it were missued by one of ful age as take yâ— case to bee landes are holden of the kinge in Socage in Capite now the liuerie is sued within age that is to saye at the age of .14 yeres whether in this case the missuing of the same shall be a cause of reseiser or not T. 12. R. 2 see the booke thereof 12. R. 2. The wordes of the statute be further that if any record be found in the tresorie or elles where that vpon this record a scire facias shall be awarded But that is to bee vnderstande in this maner that first the transcript of the said record shal be by writ remoued into the Chauncerie and then out of the Chauncery shal there be a scire facias awarded not out of the tresory as it appeareth .21 â—â— li. ass lib. Ass Issues mesne NOte that if the king haue a title right or interest to any lands or tenements his highnes wheÌ„ he seiseth shal be aunswered of all the mesne issues and profites from the time of his sayd title right or interest growen and whether it be a right of entre or title of entre it maketh no diuersitie in the kinges case as for an example the king entreth for a condition broken his highnes shal be answered of all the issues and profites sins the condicion broken and yet in that case a common person shal not haue the issues and profites but from the time of his entrie Like law is it if the kinges tenaunt aâ—en in mortmain and the kinge entreth but otherwise it is if he entre for mortmain in lands not holden of him vpon a title deuolued vntoo his highnes in defaut of other lords And these cases appere H. 19. et 41. E. 3. fo 21. 19. E. 3. Entre coÌ„g P. 39. The same law is it where his highnes is entitled to seise for that the lands are of his foundatioÌ„ and aliened contrarie to the statut of west .2 ca. 41. which geues the writtof contra formaÌ„ collationis H. 46 E. 3. Forf P. 18. in this case his highnes shal be answered of all the mesne issues growen from the time of the alienatioÌ„ as appereth H. 46. E. 3. And note also that if the king make any graunt which is not sufficient in the law or is deceiued in the making of the same by reason it was made vpon a false suggestion in his case if this highnes doth resigne this graÌ„t adnull it iure regis as he may he shal be then be answered of all the mesne issues profits which were lost by reason of the sayde insufficient graunt as appereth .11 H 4. But if his highnes bee entitled to any lands nomine destriccionis there his highnes shall not bee answered of the profites but from the finding of that title 11. H. 4. f. â— as in case where the kinges tenant in chief alieneth without licence and an office is therof found in this case his highnes shal not be answered of the profites from the time of that alienation but onely from the tyme of the findinge of the office or from the tyme of a Scire facias returned wher the alienatioÌ„ is of record P. 8. e. 4. f. 4 and herof see the booke 8. E. 4. Like law is where his highnes is to seise the lands of his widow that hath maried her selfe without his licence 40. li. Ass Gard P. 36. And note that where the king is to be aÌ„swered of the mesne issues and profits perceued and taken of any landes which haue come to soÌ„dry hands sins the kings title first growen to the same there euery one of them that haue sondrely so perceiued and taken the profits shal answer for his owne time and not one for all as it appereth in the boke of 46. before remembred And note also that by the statut of w. 2. ca. 32. it is prouided that if any spiritual man bring any real action and recouer that the land recouered shall remayne in the kinges hands vntill such time as it be sued out of his hands by him that recouered or els by the chiefe lorde and in the meane time the shiriue shal auÌ„swer the kinge in the eschequer of the profites by which statut whether the collusion bee found or not found yet the king shal haue the meane issues as it is thought 20. H. 6. 20. H. 6. f. â— So it is in a writ iudicial of deceite brought against any the king shall haue the issues growen from the time of the first iugement vntill iugement be geueÌ„ in the sayd writ of disceit ¶ Some tymes the kynge recouâ—eth of the issue in the allowance of an estraunge tytle as yf the husband beynge the kynges tenant vpon a false suggestion purchaseth lycence to alieÌ„ to take estate to him to his wife so doth afterward dyeth the wife holdeth her in by title of Suruiuor occupieth nowe vpoÌ„ a Scire facias against the wife his highnes shal bee answered of all the meane issues since her occupiynge of the ii parts of the land and the thyrd part he recopeth and alloweth for her dower .40 li. Ass P. 36. ¶ Note that in a writ of disceit vpon a recouery in a Preeipe quod reddat of land where the proces was a graÌ„d Cape 40. Li. Ass Gard. P. 1. if the pleintyfe recouer he shall recouer the land and his damages but not the issues of the land synce the fyrst iudgement because the kinge shall haue them by the graunde Cape and the shirife accomptable of theÌ„ quod vide titulo disceit in Fitz P. 33. 46. 7. 32. Contrarie lawe is it if there lie no grand Cape in the action as if the recouerie be in a Scire facias as it appereth titulo Disceit in Fitz P. 36. 27. Finis Diuers other prerogatiues therbe which the kiÌ„g hath by the order of the comoÌ„ law that be not wtiÌ„ this statute coÌ„priÌ„sed a great part wherof vnder the title of Prerogatife master Fitz herbart hath most diligeÌ„tli noted in his great AbridgmeÌ„t so well ordred placed there that I doo of purpose omit to reherse them here The rest woulde require so longe a serche that oneles I had gathered and noted them al redie as I haue not doÌ„e in dede I should be faine to peruse the hole bodie of the comoÌ„ Lawes for the knowleg therof wheruntoo time seruethe mee not wherefore at this time myne intent is not to medle with them Imprynted at London in flete strete within temple Barre at the signe of the hand starre by Rychard Tottel An. 1567. Cum priuilegio