Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	action_n	defendant_n	plaintiff_n	1,723	5	10.0998	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A16313	A iustice of peace for Ireland consisting of two bookes: the first declaring th'exercise of that office by one or more iustices of peace out of sessions. The second setting forth the forme of proceeding in sessions, and the matters to be enquired of, and handled therein. Composed by Sir Richard Bolton Knight, Chief Baron of his Majesties Court of Exchequer in Ireland. Whereunto are added many presidents of indictments of treasons, felonies, misprisions, præmunires, and finable offences of force, fraud, omission, and other misdemeanors of severall sorts, more then ever heretofore have beene published in print.	Bolton, Richard, Sir, 1570?-1648.	1638 (1638)	STC 3223; ESTC S107128	601,677	634

Sheriffes Bailiffes Constables Provost Marshals and other his Majesties loyall subjects are required to be ayding assisting and helpfull to every Iustice of peace and Iustices of Assize in the apprehending of the said Cosherers and wandring Idlers when they shall be thereunto required upon paine of such fine or fines to be set upon them for their neglect as upon conviction before the Iustices of peace or before the Iustices of Assise at their discretion shall be set upon them for their said default 30. Both which last mentioned statutes are in a manner but a declaration of the common Law for the constant course in Ireland hath ever beene at the generall Sessions of the peace and at the Assises to enquire of such Idlers and to fine and imprison them untill they shall finde surety to betake themselves to some honest labour or else to be bound to their good behaviour at the discretion of the Iudge 31. So likewise at the common Law if a man had taken my servant from me I might have had an action of Trespasse Quare vi armis c. but if he had procured the servant to depart who did depart accordingly and he retained him or if he had departed of his owne head and another had retained him knowing of the first retainer an Action did not lye at the common Law Quare vi armis c. but an action upon the case did lye upon the departure by such procurement and in case where the servant did depart without any such procurement and was retained by another 11. H. 4. 21. 22. there no action at all did lye by the common Law and therefore the said statute of 23. Ed. 3. was made which gives an action in these cases 11. H. 4. 21. 22. Co. lib. 11. fo 86. 32. Likewise by the common Law no man may be prohibited to worke in any lawfull trade for the Law abhorreth Idlenesse Coke lib. 11. fo 86. 33. Also by the common Law no man is prohibited to use diverse misteries or Trades at his pleasure and although this was prohibited by the statute of 37. Ed. 3. cap. 6. yet shortly after at the next Parliament that restraint of free Trade being found prejudiciall to the common wealth it was enacted againe that all persons should be as free to use severall Trades as they were at anytime before Co. lib. 11. fo 54. as appeares by the statute of 38. Ed. 3. ca. 2. and therefore without an Act of Parliament no man may be restrained either to worke in any lawfull Trade or to use diverse mysteries or Trades by any ordinances or by-lawes made to restraine the same but such by-lawes and ordinances are meerely voide and against the law 34. Also it is lawfull for any person to use privately any Trade as of a Cooke Brewer Baker Taylor or such like in his owne house or in the house of any other for the private use of the family although such person were never Apprentice to the Trade Who are compellable to serve by the statute 35. By the statute of 23. Ed. 3. and the rest of the statutes above mentioned a Iustice of peace may command vagrant persons to prison if they will not serve and labour and they may command the Gaoler to let them at large without other writ Fitz Na. Br. fo 168. b. and if a man be retained in service and goe vagrant out of his service another man may compell him to serve or labour because he is out of service Fitz. Na. Br. fo 168 b. Fitz. Na. Br. fo 168. 1. 36. He which hath not lands sufficient of his owne to manure or hath not some mistery or occupation to live upon shall be compelled to serve and labour by the said statute of 23. Ed. 3. Fitz. Na. Br. fol. 168. i. 37. In an action upon the statute of Labourers the defendant saith that he holdeth land for which he ought to doe certaine dayes works yearly to the Bishop of D. at his Mannor of S. and demands Iudgement if he shall be compelled to serve and the plaintiffe saith that he had but six acres for which he shall pay but six dayes worke upon which the defendant demurred in law and it was awarded by the Court that the plaintiffe shall be barred of his action the reason is 40. Ed. 3. 39. that if he shall bee retained with another it will not be lawfull for him to depart from him to doe the six dayes worke Brooke Lab. 5. nor to doe any worke 40. Ed. 3. 39. Brooke Labourers 5. 38. An Infant of the age of five yeares is not compellable to serve by the said statute by reason of his disability of body 41. Ed. 3. 17. Brooke Lab. 6. for the statute requireth that he should be potens in corpore 41. Ed. 3. 17. Brooke Labourers 6. 39. In an action of false imprisonment the defendant justifieth being Lord of the tenant because the plaintife was vagrant and I.N. complained for lacke of a servant and required him to serve and he would not wherefore he put him in the Stocks and the plaintiffe said that he had two Acres of land five sheepe and ten Cowes to the value of 20. l. to be occupied and the defendant said that hee had but a cottage and no land and so not sufficient to be occupied and the other said and maintained that he had sufficient Chattels to bee occupied and thereupon the issue was joyned 47. Ed. 3. 18. Br. Lab. 14. which proves that if his Chattels were sufficient to imploy him in labour he is not compellable to serve as a servant 47. Ed. 3. 18. Br. Lab. 14. 40. An action was brought upon the statute of Labourers against a litle Damosell of the age of ten yeares upon retainer and departure and the plaintiffe declared against her and the defendant said that she is but of the age of Ten yeares and demanded Iudgement of action and because it appeared to the Court by inspection that shee was not of age to make a Covenant therefore the writ was abated 2. H. 4. 5. Br. Lab. 19. and there Rickhill said that she is not of age to bind herselfe by Covenant ante annos nubiles that is to say before the age of 12. yeares 2. H. 4. 5. Br. Lab. 19. 41. In an action upon the statute of Labourers 7. H 4. 5. Br. Lab. 20. it was said that the statute of Anno. 23. Ed. 3. cap. 1. is that quilibet potens in corpore ought to serve and by Hankford an Infant of 12. yeares retained ought to serve 7. H. 4. 5. Br. Lab. 20. 42. A man brought an Action upon the statute of Labourers for taking his servant out of his possession 38. Ed. 3. 5. Br. Lab. 24. the defendant said that the servant is an Infant under the age of Ten yeares and because the plaintiffe could not gainsay it he was barred of his action 38. Ed. 3. 5.

Br. Lab. 24. 43. An Artificer as a Carpenter Taylor Shooemaker and such like shall not be compelled to serve by the statute of husbandrie contrarie of servants of husbandrie and therefore in an action of debt brought by the Carpenter Taylor or such like for his wages the master may wage his law but not in an action brought by a servant in husbandrie and yet if a Carpenter Taylor Shooemaker 33. H. 6. 14. Br. Lab. 36. or other Artificer will be retained in service and depart an action lies of the departure although that they shall not be constrayned to serve for the first Article of the statute of Labourers 23. Ed. 3. compels servants of husbandrie to serve and the second Article ordaines that if any retained in service depart from his master an Action shall lie of the Departure 33. H. 6. 14. Brooke Labourers 36. 44. In an action upon the statute of Labourers if the defendant were vagrant and was required to serve and refused by Martin if he be retained with one to serve by the day and is required by another to serve by the yeare there he shall serve the first the day which he was hired and after that day ended he shall serve the other by the yeare but if he be retained for twenty or forty dayes and be required by another to serve by the yeare he ought to serve the latter for a retainer by twenty or forty daies is no usuall retainer but otherwise it is of a retainer by the day 11. H. 6. 1. Br. Lab. 49. and by him if a man be retained for a yeare and after is vagrant and doe not serve accordingly there if another him require to serve he ought to obey that request 11. H. 6. 1. Brooke Labourers 49. 45. A servant shall be compelled to serve in Summer in the place where hee served in Winter before and the Lords of the Towne and Iustices of peace may command vagrants to prison which will not serve Fitz. Na. Br. fo 168 f. Br. Lab. 51. and if a man retaine a servant for forty daies and another retaine him for a yeare within the forty dayes the first retainer is thereby discharged because the first retayner was not according to the statute What is a good retainer within the statute and what not 3. H. 6. 23. Br. Lab. 1. Fitz. Na. Br. fo 168. f. Br. Lab. 51. 46. If a man retaine a Labourer to serve him in husbandrie according to the forme of the statute this is a good retainer although no wages be mentioned but it is otherwise if a man retaine a Carpenter to make a Mill or such like for in the one case the wages is certaine by the statute and not in the other 3. H. 6. 23. Br. Lab. 1. 47. An Action upon the statute of Labourers was brought against one which was retained in the office of an Imbroiderer who departed within the Terme 47. Ed. 8. ●● Br. Lab. 15. the defendant demands Iudgement of writ because the statute doth extend only to servants and labourers and not to Artificers but this exception was not allowed whereby it appeares that this was a good retainer according to the statute 47. E. 3. 22. Br. Lab. 15. 48. An Action upon the statute of Labourers was brought against a Chaplaine who had covenanted to be Seneschall to the plainetiffe and Chaplaine of such a parish Church for that he departed within the Terme and as to the office of Seneschall it was adjudged that the Action is well brought 50. Ed. 3. 13. Br. Lab. 16. but as to the Chaplaine the Action doth not lie for that he is neither common Labourer nor Artificer but is the servant of God and therefore as to that he was discharged 50. E. 3. 13. Br. Lab. 16. 11. H. 4. 42. Br. Lab. 23. 49. A retainer upon condition is a good retainer within the said statute ●8 Ed. ● 12. Br. Lab. 25. Fitz Na. Br. fo 138. h. 11. H. 4. 42. Br. Lab. 23. 50. If a man that is insufficient and not able to keepe a servant retaine a servant to serve him by the yeare this is no good retainer 38. Ed. 3. 12. Br. Lab. 25. 51. An Action upon the statute of Labourers was brought and the defendant said that he was retained to collect the rents of the plaintiffe without that that he was retained in the office of a labourer and this was adjudged a good plea for the statute is only of those which may be required to serve as Labourers 19. H. 6. 53. Br. Lab. 28. and that is not a Collector of rents for it is not reasonable that a man should be compelled to be accomptable 19. H. 6. 53. Br. Lab. 28. 52. If a man retaine a servant to serve in his house 21. H. 6. 9. Br. Lab. 29. that is a good retainer although he doe not expresse in what office he shall serve that is to say a fervant in Husbandry Cooke Butler horsekeeper or such like 21. H. 6. 9. Br. Lab. 29. 53. By Markham and Ascue Iustices an Infant may bind himselfe a Prentice but Newton and Paston Iustices say that is by custome and not by the common Law and it is there agreed that one may be constrained by the statute to serve but not to be an Apprentice and by Paston if an Infant be retained to serve an Action upon the statute of Labourers is brought against him it is a good plea for him to say that he is an Infant but by Markham that is 21. H. 6. 33. Br. Lab. 30. where he is under the age of 14. yeares for at the age of 14. yeares he is potens in corpore according to the statute and therefore such retainer is good 21. H. 6. 33. Br. Lab. 30. 54. If I retaine a servant for a yeare and so from yeare to yeare taking for his wages according to the statute and if he serve Eight yeares he shall have an Action for his wages and he may not depart without reasonable warning but where he is retained for one yeare and continueth for Eight or Ten yeares now the first retainer shall serve for all and is but one retainer within the statute for all the yeares 38. H. 6. 14. Br. Lab. 36. 38. H. 6. 14. Br. Lab. 36. 55. If I retaine a servant to serve me by the yeare at any time that I shall require him this is no good retainer within the statute 22. H. 6. 30. Br. Lab. 31. 22. H. 6. 30. Br. Lab. 31. 56. An Action upon the statute of Labourers for taking of the plainetiffes retained servant the defendant said that the servant made the Covenant by dures and was within age and the defendant had 20. l. land and the servant is his Sonne and heire apparant and by Babington if such a sonne make a Covenant to serve this is a good retainer although he were heire apparant to 100. l. land And if he were of

levied upon the husband for the husband shall never be charged for the Act or default of his wife but when he is made a party to the action and judgement given against him and his wife Co. 9. 72. Co. 11. 61. 2. H. 7. 16. 5. Diverse doe enter with force to the use of A. who is not then present with them but doth after agree thereto this agreement after maketh A. to be a disseisor Br. force 25. but not to be punished for the force and if A. had counselled consented or agreed thereto before the Entrie yet it seemeth that a commandement consent or agreement before or after though it may make one a disseisor yet it is not to be punished by the Iustice of peace upon these statutes Consent for that a forceible Entrie cannot be adjudged against a man without an actuall Entrie be also made by him or that at least he be present 6. But if A. that shall command or counsell others thereto shall also be present at the time of the Entrie Dalton 182. although he doth then nothing yet he is now become a principall and punishable by these statutes 7. If diverse doe come in one company to enter into lands c. where their entry is not lawfull Dalton 183. and all of them saving one did enter and demeane themselves in peaceable manner and one only doth enter with force or after entry made doth use force and violence this shall be adjudged a forceible Entrie in them all although the force were against their wils Co. 9. 67. 112. 11. 5. for where diverse doe come in one company to any place to the intent to doe any unlawfull thing be it robbery homicide ryot affray or any trespasse here every one of them shal be adjudged a principall doer although they stand but by and doe nothing So it seemeth though some of them come without any intent of evill if they came together in company with the other offendors or if they came after yet if they be either ayding or countenancing to the offendors they shall be also adjudged principall doers aswell as the other 8. An Indictment upon the statute of 8. H. 6. for the King The person● put out Co. 1. 46. 10. 112. is not good for the King cannot be disseised nor put out of his freehold neither can the King bring any action upon the statute of 8. H. 6. nor any other action which might prove him out of possession of the land 9. And if the K. termor be put out by force The Kings Tenant Dalton 183. Cromp. 69. he cannot preferre a bill of indictment upon the statute of 8. H. 6. that he was put out and the King disseised But he must have an Information of Intrusion in the Exchequer 10. Dalton 183. Yet it seemeth that upon complaint made to a Iust of peace by the K. termor of any such force the Iustice of peace ought to remove the force and upon his view thereof to record it and to commit the offendors to prison and may fine them and after such force removed the Kings termor may presently reenter if he can in peaceable manner 11. If a forceible entry Lesse● for yeares Coppihold●● or deteiner shall be made upon any Lessee for yeares Tenant at will or upon a Coppiholder whether it be by an estranger or by the lessor or by the Lord the Iustices of peace upon their view thereof are to remove such force Dalton 183. and may commit to prison the parties which made such entry or which shall hold it with force and may fine them but whether the Iustice of peace may make such restitution and set them sc the Lessee for yeares Tenant at will or Coppiholder into their possessions againe hath beene much questioned But now by a statute made in Ireland in 10. Caroli ca. 13. restitution shall be made to Tenant for yeares Tenant at will Coppiholder Tenant by Elegit or statute merchant or of the staple 12. Some held opinion that before this statute the Iustice of peace may put them in possession againe and of this opinion was Maister Marrow and Maister Lamb. and to maintaine this opinion these reasons may be given 1. First for that the words of the statutes seeme to warrant it for the statute 15. R. 2. in the Preamble thereof as also the stat 8. H. 6. in the body thereof hath this word possessions which word most properly doth extend to a lease for yeares c. 2. Again that clause of the stat 8. H. 6. which provideth for the restitution is thus if it be found that any doth contrary to this statute then the said Iustice c. shall put the party so put out in full possession c. 13. Now it cannot be denied but that he which by force expulseth Lessee for yeares tenant at will or a coppiholder doth contrary to this statute also they bee the parties put out and the same mischiefe and inconvenience which these lawes do labour to remove is to Lessee for yeares tenant at will and to the coppiholder Co. 11. 33. 34. Plo. 178. And we may finde it usuall that where statutes are made for to remedy any common mischiefe there to help things in the same degree one action thing place and person hath in construction beene taken for another and a good expounder saith Sir Ed. Co. 11. 34 maketh every sentence to have his operation to suppresse all the mischiefes before the said Act and principally those that are specified in these acts Co. 3. 7. 12. 73. 14. And againe saith he it is the office of the Iudges alwaies to make such construction of statutes as may represse the mischiefe and advance the remedie and to suppresse all evasions which may continue the mischiefe and to adde force and life to the cure and remedy according to the true intent of the makers of the statute Co. 11. 73. b. Co. 3. 7. 15. Others held the contrary sc that Lessee for yeares nor a coppiholder or tenant at will cannot have restitution by the hands of the Iustice of Peace and this was the common opinion their reason is for that the words in the statute of 8. H. 6. in that clause which specially provideth for the restitution are thus The said Iustices c. shall reseise the said lands or tenements and thereof shall put the party so put out in full possession c. which words lands or tenements are only to be understood of them that have inheritance Rast 174. or a freehold at the least but to this it may be answered that the said statute of 8. H. 6. in the body thereof hath these words where any doe make any Forceible Entry into lands tenements or other possessions or them hold forceibly c. which words possessions extendeth to a lease for yeares c. And then the words possessions being in the same statute we shall

find that a statute is to bee expounded upon all the parts thereof together Co. 3. 59. b. 8. 117. and not upon one part alone by it selfe to which purpose see Lincolne Colledge case and Doctor Donhams case in Sir Edw. Cokes Reports 16. But it seemeth to those which hold this last opinion that if a Lessee for yeares Tenant at will or a Coppiholder be forceibly put out or held out by an estranger if they will have restitution their indictment must be made and preferred in the lessor or Lords name Cromp. 161. and the Iury must find that the Lessor or Lord was disseised c. and then the Lessor or Lord shall have restitution And so by their restitution their Lessee or Coppiholder is restored also But such Lessee or Coppiholder cannot say they preferre an indictment in their owne name upon the statute 8. Hen. 6. for that they have no Freehold Cromp. 249. 2. 17. And to that purpose I find some presidents of indictments in this forme viz. in unum messuag apud c. adtunc existent liberum tenementum M.D. armiger vi armis c. Manuforti illicitè tunc inde expulerunt ejecerunt pref M.D. inde injuste dissesiverunt 18. And by this opinion if a Lessee for yeares tenant at will or a Coppiholder be forceibly put out by their Lessor or Lord such Lessee or Coppiholder hath no remedy at all by indictment upon this statute for they have no Freehold and therefore can have no restitution upon this statute 19. Cromp. 71. Also by this opinion if the Lessee for yeares be put out by his Lessor and after the Lessee putteth out the Lessor againe forceibly the Lessee shall not be indicted neither shall the Lessor have restitution upon this statute for that the Lessor is not ousted nor disseised of his Free-hold for the possession of the Lessee is such a seisin of the Lessor of his Freehold that he may have an Assise if his Lessee be put out And so of a Coppiholder not having forfeited his estate if his Lord notwithstanding shall enter upon him and put him out and the coppiholder shall reenter upon his Lord with force the Coppiholder shall not be indicted nor yet the Lord restored causa qua supra 20. And so by this last opinion the very mischiefe specified and intended to be helped by these statutes should seeme still to remaine in all cases betweene such Lessees and Coppiholders and their Lessors or Lords so as there can be no inquiry nor restitution in cases of Forceible Entry or detainer betweene them 21. But howsoever the law be taken for the indictment or restitution thereupon yet in case that Lessee for yeares tenant at will or a Coppiholder be forceibly put out or held out either by a stranger or by their Lessor or Lord the Iustices of Peace Cromp. 71. or any one of them by the statute 15. R. 2. ca. 2. may safely remove the force upon view thereof and may commit the offendors to prison and then the Lessee for yeares or Coppiholder may presently reenter if peaceably they can so doe and so may have his possession againe without any restitution made him by the Iustices 22. But these statutes are now by a statute made in 10. 10. Caroli c. 1●● in Ireland Caroli clearely explained which statute ensues in these words viz Whereas there is one good Act made and established in England in the eight yeare of the raigne of King Henry the sixt against such persons as should make forceible Entries into lands tenements and other possessions or them should forceibly hold and one very good proviso or clause in the said Act contained as ensueth viz. Provided alwayes that they which keepe their possessions with force in any lands and tenements whereof they or their ancestors have continued their possession in the same by three yeares or more be not endamaged by force of the said statute And whereas diverse of the Kings Majesties good and loving Subjects and their Ancestors or those whose estate they have for many yeares together above the space of three yeares or more have beene in quiet possession of their dwelling houses and other their lands and possessions and now of late divers of his Majesties said Subjects having Entries made upon their possessions having had such quiet and long possession for disturbing of such Entries and for keeping of their possession against such enterers by colour of Indictments of forceible Entrie or forceible keeping possession found against them by meanes of the oathes of such enterers have beene removed and put out of their dwelling houses and other their possessions which they have quietly held by the space of three yeares together or longer time next before such indictments found against them against the true meaning and intent of the said proviso or clause contained in the said Act for remedy of which inconvenience and for true declaration and explanation of the Law therein be it ordained declared and enacted by the authority of this present parliament that no restitution upon any indictment of forceible Entrie or holding with force be made unto any person or persons if the person or persons so indicted hath or have had the occupation or hath or have beene in the quiet possession by the space of three whole yeares together next before the day of such indictment so found and his her or their estate or estates therein not ended nor determined which the party indicted shall and may alledge for stay of restitution and restitution to stay untill that be tryed if the other will deny or traverse the same And if the same allegations be tryed against the same person or persons so indicted then the same person or persons so indicted to pay such Costs and damages to the other party as shall be assessed by the Iudges or Iustices before whom the same shall be tryed the same Costs and damages to be recovered and levyed as is usuall for Costs and damages contained in Iudgement upon other Actions And be it further enacted by the authority aforesaid that such Iudges Iustices or Iustice of peace as by reason of any Act or Acts of Parliament now in force are authorized and enabled upon enquiry to give restitution of possession unto the Tenants of any estate of Freehold of their lands or tenements which shall be entred upon with force or from them withholden by force shall by reason of this present Act have the like and the same authority and ability from henceforth upon indictment of such forceible Entries or forceible withholding before them duely found to give like restitution of possession unto Tenants for Terme of yeares Tenants by Coppy of Court Roll Guardians by Knights service Tenants by Elegit Statute Merchants and Staple of lands or tenements by them so holden which shall be entred upon by force or holden from them by force And be it further enacted by the authority aforesaid that all

would beat his servant Pr. 5. f. Iustifie 3. but the master with a sword staffe or other weapon may defend his servant assaulted from being beaten in respect of the losse of his service yet Master Lambert and Master Crompton are of opinion that the master may beat another in defence of his servant Cromp. 136. which seemeth to be the better opinion by reason of the losse which the Master shall sustaine by the wounding of his servant 36. Lamb. 131. But the farmour or tenant cannot justifie such an Act in defence of his landlord nor a Citizen c. in defence of the Maior or Bailiffes of the Citty or Towne corporate where he dwelleth unlesse it be in the legall execution of their offices 37. 9. Ed. 4. 28. 19. H. 6. 31. 63. Li. intr 611. In defence of my goods Also the Law doth tollerate a man to beate another for the preservation of his goods and therefore he that shall attempt by force and violence to take away my goods wrongfully from me whether they bee goods whereof I have a lawfull property or such goods whereof I have only a possession by the bailement of another I may justifie to defend the same by force and if I shall beat or hurt such person it is no breach of my recog for the peace but if I kill him it is felony and then a breach of the recog 38. The same Law is in every case 10. Ed. 4. 6. 3. H. 4. 9. 11. H. 6. 33. where another shall attempt by force and violence to take away my land freehold copihold or lease or to stop and turne my lawfull high way or my ancient river or water course leading to my mill in these and like cases if I shall disturbe him therein whereupon he doth assault and attempt to beat me I may justifie to beat him againe aswell in defence of my person as of my possessions but not to kill him 39. The same Law is also in every case where any offendour is by order of Law punished by whipping stocks pillory or otherwise for any offence by him committed contrary to the Lawes or statutes of this Realme there is no peace broken nor any recog of the peace forfeited by him or them which shall lawfully execute any such punishments 40. Note further that there are diverse offences for which an indictment contra pacem will lye and yet the committing of such offence shall be no forfeiture of the recog for the peace for that the Act that shall breed a forfeiture of such a recog must be done or intended unto the person as aforesaid or in terrorem populi 41. Therefore to enter into the lands Dalton 163. 164. where he ought to bring his Action or to disseise another of his lands or to enter into lands or tenements with force being without offer of violence to any mans person and without publique terrour Cromp. 136. or to doe a trespasse in another mans corne or grasse or to take away another mans Ward to take away another mans goods wrongfully so it be not from his person or to steale another mans horse or other goods feloniously being not from his person these will make no breach of this recog 4 H. 7. 8. 42. Note that if a man be bound in such a recog for himselfe and his servants if any one of them breake the peace the whole recog is forfeited Et sic in similibus 43. Note also that the sureties may plead that the party principall hath not broken the peace although upon issue the same shall be found against the said principall for they are estrangers thereto Fitz. averment 46. Concerning the writ of supplicavit CHAP. 61. 1. THe formes of this writ out of the Chancery are of diverse sorts as you may see Fitz. Na. Br. 80. d. 2. By which formes of the writ it appeareth that it may be directed to the Iustices of peace or to one of them or to the Sheriffe or to every of them to cause the party that is to be bound to come before him or them to finde surety of the peace and this writ may be that the principall shall be bound in such a summe and the sureties in such a summe certaine and also it may be in what certaine summes the demandant will or the summes may by the writ be referred to the Iustice of peace c. with this clause therein contained pro qua respondere volueris and the said writ is further that if the party shall refuse c. that they shall commit him to the gaole quousque c. and that when they have taken such surety they doe certifie the recog which they have so taken under their seales and returne the writ into the Court whence the same was awarded and that without delay 3. And for that this writ is of diverse formes the Iustice of peace must have a care that he doe execute the same in every behalfe as the same writ shall direct him 4. When the writ doth referre the summe wherein the principall and his sureties shall be bound to the Iustice c. then it resteth in their discretion but yet it is then safe for them to take good sureties and to bind them in good summes and the rather when that clause is in the writ pro qua respondere volueris 21. H. 7. 20. Br. peace 9. 5. When this writ is directed to the Sheriffe and to all the Iustices and is delivered to any one of them he onely to whom it is first delivered ought to execute the same writ in every behalfe scil he only shall make a warrant c. returneable before himselfe and shall take sureties and make returne thereof only without any other 6. The forme of a warrant for the peace upon a supplicavit you may see postea tit Warrants and Presidents 7. Also the same Iustice of peace after such surety taken may make the party a supersedeas to discharge him from any other arrest or to deliver him being in prison for the peace at any other mans suit as it seemeth Cromp. 237. b. 8. The forme of the supersedeas you may see after tit of Warrants and Presidents 9. The party who is attached upon this writ of supplicavit 21. H. 7. Br. peace 9. cannot goe to be bound before any other Iustice of peace but only before him from whom the warrant proceedeth upon this writ neither can another Iustice of peace by a supersedeas discharge such a warrant made by his fellow Iustice by force of this writ 10. The Iustice or Sheriffe to whom this writ shall be delivered may make a Deputy therein 9. Ed. 4. 35. f. Fx. Imp. 4. scil may make a warrant to the Constable or other person indifferent to apprehend the body or cause the party to come before him the said Iustice or Sheriffe to finde sureties c. and that if he shall refuse that then the Constable c. shall carry him

Lamb. li. 4. pag. 498. and lay them downe in certaine vel his similia it is voyd for the incertainety Brooke action sur le case 112. And if it be that A. and B. manuforti intraverunt in tenementum c. that also is insufficient for the like incertainety because the word tenementum may aswell extend to a house or cottage as to land meadow pasture c. Dallison 38. So if the Endictment run thus Apud C. in Comitat. predict insultum fecit ipsum cum quodam cultello pretij c. felonicè percussit ex malitia sua praecogitata murdravit it is not sufficient without shewing the place where he murdred him which may be in some other place then where he assaulted him Collect. Dyer 69. And an Endictment of selling tanned leather was disliked 1. Ric. 3. 1. because it neither contained the place where nor the person to whom the leather was sold both which be materiall and traversable 39. If the Endictment be that a man is a common Theefe without shewing especially in what thing it is nothing worth 22. lib. Ass Pl. 75. 29. 45. And so if it be of a generall extortion against an Ordinary without shewing in what by 25. Ed. 3. Stat. 3. ca. 9. And so also if the Endictment stand upon these Termes onely Insidiatores viarum depopulatores agrorum by 4. Hen. 4. cap. 2. And thereupon the Court said in 17. Ed. 4. 4. that upon such an Endictment the party shall be dismissed Howbeit the Commission of the peace hath the words Insidijs jacuerint but it goeth further ad gentem nostram mayhemandam 40. Neither is it good in an Endictment against an Accessary to say that he received the goods without saying that he received the felon 27. lib. Ass Pl. 69. 9. H. 4. 1. 25. Ed. 3. 39. nor to say that he scienter felonem Domini Regis apud A. recepit without shewing what felony he committed 7. H. 6. 65. nor without saying that he knowing it received him feloniously 7. H. 6. ca. 2. unlesse he receive one that is attainted of felony in the same County for then he must at his perill take knowledge of the attainder and so no such mention of knowledge needeth to be used as it is holden 8. Ed. 4. 3. notwithstanding that opinion I thinke that it is necessary that the accessary re verae have notice of the felony 41. And if such an Edictment be Sciens ipsos 4. homines feloniam c. fecisse apud D. felonicè recepit it is not good for that it sheweth not which of them he received 30. H. 6. 2. and yet if foure be endicted joyntly then are they also each one severally endicted thereby 6. Ed. 4. 5. per Markham 42. Concerning the nature of the offence Nature of the offence it is to be observed that in an indictment of Treason presentable before the Iustices of peace the word proditoriè ought to be used In the Endictment of Murder murdravit is necessary 9. Ed. 4. 26. and that word alone implyeth ex malitia praecogitata Collection Dyer 69. But if without murdravit it be quod A. occidit B. ex malitia praecogitata voluntariè it is not enough because one man may kill another so in a wager of battell and yet be no murderer And for the same reason if it be of Manslaughter it must be felonicè 43. An Endictment was that the son had taken the sicke Father and carryed him into the cold weather whereof he dyed but it was disallowed because it lacked felonicè Fitz. Endict 3. Againe if the Endictment be of Burglary then it must be Burglariter or ea intentione ad feloniam sive murdrum faciendum for it is not enough to say felonicè fregit domum mansionalem in nocte And if it be of Rape then it must say felonicè rapuit for without rapuit it sufficeth not to say felonicè cepit Aliciam eam carnaliter cognovit 9. Ed. 4. 27. 11. H. 4. 12. 44. If it be furatus est it seemeth to Marr. to be good without the word felonicè but 18. Ed. 4. fo 10. is against him 45. If it be felonicè abduxit unum equum it is not of value without saying cepit neither is cepit good alone without abduxit Fitz. End 4. And if it be felonicè succidit arbores illas asportavit or vi et armis succidit arbores et felonicè asportavit neither of them will make it felony because the Trees be a part of the Freehold wherof no felony can be commited 12. lib. Ass pl. 32. But if it be vi et armis succidit arbores et eas felonicè at another day after cepit et asportavit that will make it felony as I have said already and if the Endictment be of petit Larcēny it ought to have felonicè in it 27. H. 8. 27. 46. And albeit the Endictment be but of a Maiheme it must say felonicè maihemavit and yet Maihem is no felony but an haynous and as it were a felonious Trespasse But where in an Endictment of felony the word felonicè wanteth there the Endictment may neverthelesse stand good to make a Trespasse 7. H. 7. 7. 6. H. 7. 4. 18. Ed. 4. 10. 47. And in an Endictment of Trespasse or felony the words contra pacem and the words vi et armis viz. cum baculis cultellis Stamf. fo 98. c. must of necessity be used for the statute of 37. H. 8. ca. 8. in England which maketh the Endictment good without those words is not of force in Ireland 48. If the Endictment be of forceible Entry then the words vi armis be needlesse because they are necessarily implyed in the word force Marr. And if the Endictment be founded upon a statute it ought to say contra formam statuti in hujusmodi casu provisi ac editi or where many statutes doe concerne one offence as in the case of Liveries and such like contra formam diver sorum statutorum without speciall naming of any and then the best shall be taken for the King but an Endictment of a Ryot without saying contra formam statuti c. is not good Lamb. li. 4. pag. 502. because it is no Riot but by that statute And yet it is not of necessity that the statute be verbally rehearsed but only that the offence against the statute be sufficiently and with full words described Comment 1. 79. 49. In the twentieth yeare of Queene Elizabeth a man was endicted upon the statutes 1. El. cap. 1. 13. El. cap. 2. in England for ayding another knowing him to be a principall mainteyner of the authority of the See of Rome contra formam statutorum praedictorum but because the Endictment wanted certaine materiall words expressely mentioned in the Acts viz. upon purpose and to the intent to set forth and extoll the authority c. the endictment was thought