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
that grow by specialties are to be answered before other duties and legacies to be last of all delivered X In these devises the Testators intent standing with the rules of Law shall be taken XI The Executor of an Executor is Executor to the fi st Testator XII If no Will be made the Ordinary shall administer all the Chattels that were in his possession XIII But whether any Will be made or no his wife and such children as are not advanced by him in his life shall have a part to their own use viz. one third of all after the debts paid to his wife and another third part to his children This seems to be the ancient Common Law by Mag. Charta cap. 18. See F. N Br. 122. l. XIV Chattels are real or personal XV. Real as terms for years and Wardship XVI Personall as Plate Jewels Gold Silver Implements of Houshould Cattel and all goods and movables whatsoever corn sown upon the ground c. XVII The owner-ship of a Chattel personal is termed a property which of wild beasts cannot be in any nor after they are made tame longer then they remain in ones possession XVIII Treasure in the earth and Treasure Trove or Coin being found is the Kings XIX Cattel also that stray into anothers land are the Kings after a year and a day if being proclaimed at the Market in two severall Towns next adjoyning the owner do not claim them XX. Goods wrecked are also his XXI The King being Tenant in Common of an intire Chattel personall shall have the whole XXII Goods that belong to an Alien enemy any body may seize to his own use XXIII The taking of goods by an Alien enemy in Battail devesteth the property from the owner if he come not before Sun-set to claim them XXIV Church-wardens are enabled to have goods to the behoof of the parish XXV To Chattels personal Bailment and Contract do belong XXVI Bailment is a delivery of goods in possession and is either to keep or to imploy XXVII To keep when onely the Custodie is committed to him and is a simple Bailment or pledge XXVIII A simple Bailment when he receiveth them to keep for another whether it be for the Bailer to re-deliver him again or for a stranger to bail them over to him XXIX A Pledge is when he received them in assurance for another thing had of him at the time XXX The Bailment of goods to imploy is when the Bailee hath the things themselves to use to anothers profit XXXI Contract is a mutuall agreement for the very property of personall things XXXII Here the duty growing upon it cannot be apportioned XXXIII Of this kinde of contracts are buying and selling borrowing and lending and such like XXXIV The sale of another mans goods in Market overt altereth the propertie if toll be paid for them XXXV Hither belong certain as it were Contracts in law though not arising from the special agreement of the parties as Trover and conversion c. XXXVI These are the things that belong to Chattels personal in generall for the interest of personal things uncertain Accord and Arbitrement lie XXXVII Accord is an agreement between the parties themselves upon a satisfaction executed XXXVII Arbitrement is an award of satifaction by others whom they choose to judge between them XXXIX The award of a personal Chattel altereth the property thereof CHAP. 12. Trespasse upon the Case I. WE have hitherto spoken of possessions being the first and hardest part of the law The other remaineth which ministreth justice in the punishment of offences II. An offence is the doing of any wrong and it is a wrong without force or to the which force is coupled III. In those of the first kinde the offender is to be amerced viz. to pay a petty sum of money to the King and if he be a Peer of the Realm then C. S. IV. The Kings wife shall never be amerced V. Offences without force are Trespasses upon the case or Real wrongs VI. Trespasse upon the case is such an offence whereby any thing is endamaged and it is a misuser or deceit and conspiracie VII Misuser when by meer wrong it is endammaged VIII Of this kinde there be many and those of divers sorts as if a man maliciously utter any false slander to the endangering of one in law IX The touching of him with some heinous crime X. The impairing his trade of life VI. If one having another mans goods convert them to his own use XII If a Sheriffe suffer one in execution for debt to go at large XIII If a Smith prick my horse or kill him in cure XIV If being committed to the Gaole the Gaoler of malice puts upon me so many Irons or otherwise useth me so hardly that I become lame thereby c XV. But two above the rest do here require more especial consideration viz. Disturbance and Nusance XVI Disturbance is the hindring of that which in right belongeth to one to do XVII Nusance is annoyance done to ones hereditament XVIII All manner of Nusances are to be removed and common nusances any man may pull down XIX Deceit is when the damage groweth by an under slight As if in play one win anothers money by false dice or if he that selleth any thing do upon the sale warrant it to be thus and thus whereby the other is deceived XX. Conspiracie is where two or more conspire to do one wrong or the like XXI There are certain other offences against the Law which are in the nature of trespasses upon the case and by the Kings prerogative punishable like to them XXII Of this sort are Nonsuit in an action fault in the Original writ or by the Sheriffe in the return of a writ making default when he should appear and whatsoever other offences not being with force and armes which offer no direct injury to a common person CHAP. 13. Discontinuance Disseisin Vsurpation Intrusion Abatement I. HItherto of Trespasses upon the case Aâ— reall wrong is that which medleth with the Free-hold otherwise then it ought II. A reall wrong is a discontinuance or an Ouster III. Discontinuance is when he that hath an estate Tail or a Fee-simple in an others right maketh a larger estate of the land then he may IV. Warrantie of an estate of Inheritance or for life descending upon him that ought to have such an estate maketh a discontinuance V. Discontinuance taketh away the entry of those that come to have title after the death of the discontinuer VI. If he whose entry is barred by a descent or discontinuance have the Free-hold cast upon him by a new title he shall be in of his ancient title which is termed a Remitter VII Ouster is when the Free-holder is put out VIII This Ouster is of a Free-hold in deed or in land IX Of the first sort are Disseisin and Usurpation X. Disseisin is the Ousting of him that hath free-hold in deed by putting or holding him out of the
heirs as aforesaid A Fine levied of such lands shall be void in Law and the heir or reversioner albeit they be for full age in England and out of prison need not make their claim Howbeit this clause concerning a fine is altered by 32 H 8. 39. which see infra Stat. 34 35. H. 8 20. No common recovery 〈◊〉 lands in tail of the gift or other provision of the King or his progenitors though it be with voucher against tenant in tail the remainder or reversion being 〈◊〉 the King at the time of the recovery shall bind the heir in tail or bar him of his entry Tenant in us◠shall take no advantage for any rccompence in valor agianst the vouchee or his heirs Rule 24. Mag. Cart. 7. 9. H. 3. The wife after the death of her husband shall abide in his chief messuage forty dayes within which time her dower shall be assigned her If the chief messuage be a Castle then she shall have a competent house provided her til her dower be assigned Westm 2. 34. 13. E. 1. A woman that leaveth her husband and abideth with an adulterer shall not have Dower unlesse the husband voluntarily and without coertion of the Church reconcile her and suffer her to dwell with him Stat. 11. H. 7. 20. If a woman that hath an estate in Dower for life or in tail joyntly with her husband or only to her self or to her use in any lands c. of the inheritance or purchase of her husband or given to the husband and wife by the husbands ancestors or any seised to the use of the husband or his ancestors do sole or which an after taken husband discontinue or suffer a recovery by Covin it shall be voyd and he to whom the land ought to belong after the death of the said woman may enter as if the woman were dead without discontinuance or recovery Howbeit the woman may enter after the Husbands death but if the woman were sole the recovery or discontinuance barreth her for ever This Act extends not to any recovery or discontinuance with the heir next inheritable to the woman or by his consent of Record enrolled Stat. 27. H. 8. 10. Where an estate is made in possession or use to Husband and wife and his heirs or the heirs of their bodies or of one of their bodies or to them for their lives or for the wives life for her Jointure In any of these cases she shall not have Dower Howbeit upon a lawfull eviction of that Jointure she shall be endowed according to the rate of her husbands land whereof she was dowable Such a Joynture being made after marriage the wife after the husbands death may refuse it and betake her to her Dower unlesse such Joyntute be made by Act of Parliament CHAP. 7. Rule 7. STat. de districtione Scaccarii 51. H. 3◠The owner of impounded cattel may give them food without disturbance A distresse taken for the Kings debt shall not be sold within 15 dayes and upon shewing of a Tally and giving security for his appearance in the Exchequer upon the next accompt the distresse shall cease◠The Sherif shall also attach the party that received the debt to be there likewise at the same time Neither draught cattel nor sheep shall be distrained except for Damage-feasant so long as other goods may be found to satisfye the debt Distresses shall be reasonable The Sheriffe shall answer all debts received and where the Sherif chargeth himself the debt shal be quitted Marlebr 15. 52. H. 3. It shall not be lawfull for any except the King and his officers having special authority to take distresses out of his fee or in the Kings high way or in the common street Marlebr 4. None shall drive a distresse out of the County wherein it is taken in pain to be fined and to make recompence to the party grieved none shal take an unreasonable distress in pain of amerciament Westm 1. 16. 3. E. 1. None shall drive a distress out of the County or distrain wrongfully upon the penalties provided by the Statute of Marlebr Westm 2. 36. 13. E. 1. None shall procure any to distrain another to make him appear at the county court or any other inferiour court on purpose to vex him and put him to charge and trouble in pain to make fine to the King and to pay the party grieved treble damages Westm 2. 37. 13. E. 1. No distresse shall be taken but by Bailiffs known and sworn in pain to restore damages to the party grieved and to be grievously punished by the King Artic. Cler. 9. 9. E. 2. Distresses shall not be taken in the High-way nor in the ancient fees of the Church Stat. 1 2. P.M. 12. No distresse of Cattell shall be driven out of the hundred rape wapentake or lath where it is taken except to a pound Overt within the same Shire not above three miles distant from the place where it is so taken Neither shall a distresse be impounded in several places whereby the owner may be constrained to sue several Replevins for the delivery thereof in pain to forfeit to the party grieved for every offence committed against the Act. 5 l. and treble damages None shall take above 4 d. for the poundage of one whole distresse and where lesse is usually taken to take lesse in paine to forfeit it to the party grieved 5 l. and so much money as is taken above 4 d. Rule 24 Quia emptores terrarum 18. E. 1. In all Feoffments to one and his heirs the Feoffee shall hold his land and the chief Lord of the fee by the same services that the Feoffer held before Here if the Feoffment be made of parcel he shall hold of the chief Lord pro particula according to the quantity of the land and the Feoffor shall be set free for that part Rule 27. Mag. Cart. 31. 9. H. 3. If a Baronie c. Escheat to the King the tenants that hold of the same not having other lands that hold of the King in cheif shall pay like relief and do like services to the King after such Escheat as they payd or did to their former Lords and not otherwise Stat. 1. E. 6 4. So also it is when a Seigniorie cometh to the King by attainder conviction outlawry dissolution or surrender Stat 1. E. 3. Stat. 2. Cap 12. Lands holden of the King in chief and aliened without licence shall not be forfeited but a reasonable fine shall be taken of such lands so aliened by due processe in Chancery A◠cap. 13 lands holden of the King as of some Honor sh◠not be taken into the Kings hands as if they were holden of the King in chief as of his Crown Rule 31. Stat. 33. H. 8 22. A fee set down for respiting of Homage in the Exchequer or other Courts Rule 35. Marlebr 9. 52. H. 3. None enfeoffed b◠deed shall be distrained to do suit to his Lords Court unlesse he be bound to
seisin and damages and the plaintif shall be punished by Imprisonment at the discretion of the Iustices In like manner also shall the Iustices proceed in case the defendants proof is by deeds and releases for if the plaintif purchased the Assize contrary to his own deed he shall be punisht as aforesaid Stat. 7. R. 1. 10. An Assize of novel disseisin for 〈◊〉 issuing out of Lands in divers Counties shall be takeâ— in confinio comitatus as is used for Common of Pasâ—â—â— in one County appendant to tenements in another Stat. 1. H 4. 8. A speciall Assize is maintainable by the disseisee for such lands as are granted by the King patent without title first found by inquest for thâ— King without suit to be made to the King in that behalfe And if the pattentee pray in Aide of the King a procedendo shall also be granted without suit Here 〈◊〉 the Assize passe for the disseises he shall recover 〈◊〉 damages against the patentee Stat. H. 4. 8. If any make forcible entry into land by way of maintenance the Chancellor of England shall grant a special Assize without suing to the King and if the disseisor shall be attainted thereof he shaâ— suffer one whole yeares imprisonment and restorâ— double damages to the party grieved Stat. 21. H. 8. 3. The plaintif in Assize may abridgâ— his plaint of any part whereunto a bar is pleaded without prejudice to the residue Merton 3. 20. H. 3. A man disseised recovering his seisin by Assize of novel disseisin or confession of the party and having the same delivered him by the Sherif if he be again disseised of the same tenements by the same disseisor he shall have a writ of redisseisin to command the Sherif taking with him the Keeper of the pleas of the Crown and other Knights in proper person to go to the land c. and by the first Iurors or other lawfull men to make inquiry Howbeit this must not be without speciall commandment of the King The redisseisor shall be imprisoned Marlbr 8 52. H. 3 And not delivered without special command of the King and payment of a Fine Westm 2. 8. 13. E. 1. Writs of redisseisin must be inrolled in the Chancery and transcripts thereof shall be sent into the Exchequer Westm 2. 26. A writ of Redisseisin shall lie for them-that have recovered by default reddition or otherwise without recognition of assizes or Iuries The redisseisor shall answer double damages and not be reprevisable by common writ Rule 8. Westm 2. 24. 13. E. 1. Giveth an assize of nusance against him to whom the tenement is alienated after the nusance is made Stat. 6. R. 2. 3. The Plaintif if he will may have a writ of nusance in the nature of an Assise determinable before the Iustices or before the Iustices of Assize Rule 9. Magn. Cart. 12. Vide suprae Rule 2. Marlb 16. 52. H. 3. If the Lord will not render unto the heir the land when he comes to age without plea the heir shall recover his land by an Assize of Mortdancestor together with all his damages West 2. 4. 13 E. 1. If a woman haveing no right recover Dower against a Guardian the heir at full age shall have a Mortdancester aginst her Glocester 3. The heir shall have an Assize of Mortdancester if the tenant by eouttesie alien and leasâ— no Assets Glocester 6. All the heirs whereof one is Son oâ— Daughter Brother or Sister Nephew or Niece and the other in a further degree shall joyne in a Mortdancester Rule 10. Mag. Cart. 13. An Assize of Darrein presentment shall be alwayes taken before the Iustice of the Common place Rule 1â— Westm 2 24 13. E. 1. A writ of Juris utrâ—â— shall be granted to try whether free almes belong to one Church or another in case where they are transferred from one Church to another Rule 13. Stat. 31. H. 8 1. Iointenants and tenants in Common of an estate of Inheritance in their owne right or in the right of their wives in any Mannors Land c. may be compelled to make partition by writ de partitione facienda as Coparceners are compellable to do and afterwards shall have aid to deraigne the Warranty paramount and to recover pro rata as Coparceners after partition should Stat 32. H 8. 32. Iointenants and tenants in common that hold for life or years amongst themselves 〈◊〉 with others that have Inheritance or freehold in any Mannors lands c shall also be compelled to make partition by the said writ to be pursued upon their case Howbeit such partition shall not be prejudicial to any but the parties to such partition their executors and assignes CHAP. 31. Rule 3. STat. 9. E. 3. Stat. 1. 3. In a writ of debt brought against divers executors they shall have but one Essoine before appearance and another after appearance he or they that do first appeare in the Court at the grand distresse shall answer to the Plaintiffe and the plaintif if it passe for him shall have judgment and execution of the goods of the Testator against all named in the writ as well as if they had all pleaded Rule 7. Mag. Cart. 8. 9. H. 3. The pledges shall be free so long as the principal debtor is sufficient And they answering the debt shall have the lands and rents of the principall untill they be satisfied but note that this is meant of the Kings debtor Stat. 1 R. 2. 12. No Warden of the Fleet shall suffer any prisoner in execution to go out of prison by Mainprize Bail or Baston without making gree with the party unlesse by writ or other commandement of the King upon pain to lose his Office and the Creditor to have a writ of debt against him Stat. 23 H. 6. 10. Every Obligation taken by a Sheriff or his Ministers by colour of their office of any peâ—son in their Ward by course of Law shall be by the name of their office and upon condition that the prisoner appeared at the day and place mentioned in his Writ Bill or Warrant an Obligation in any other forme taken is void Stat. 32. H. 8 37. The Executors and Administrators of him that hath any rent or fee-farm in fee-simple fee-tail or for life shall have an Action of debt for the arrerages in the Testators life time against the tenants that should then have paid it or may distreine and make avowrie upon their matter in the lands so long as they remaine in the possession of the said tenant or of any claiming onely from him A husband seised of any such estate in any rent or fee-farm in his wives right shall after her death himself also his executors or administrators have the same remedy for arrerages due in her life So likewise of him his executors or administrators that hath a rent or fee-farme during anothers life and Cesty qui viâ— dye the same being unpaid Rule 9. Stat. 13. El. 4. The lands profits and hereditaments of
as Assumpsits for an assumption or promise to be performed and the like XII This lieth not against Executors XIII Here and in all other actions of trespasse upon the case the writ must comprehend all the matter oâ— substance XIV The other that break the peace but not 〈◊〉 are called trespasses against the peace XV. And of this kinde are especially of the nature of such a trespasse an action of deceit and an action oâ— conspiracie XVI An action of deceit is upon any deceit committed XVII Here if it be upon a non-summons in a plâ—â— of land whereby he looseth the land by default or sucâ— like it must be brought during the life of the Summoners XVIII In a writ of deceit the Plaintiffe shall recâ—ver all that he hath lost XIX Conspiracie in the nature of a trespasse upon conspiring by many to prejudice a man wronâ—fully XX. Such are trespasses without force is an Action 〈◊〉 trespasse coupled with force is an action of trespasse foâ— a trespasse done XXI An Action of trespasse brought in a Court Baron must not suppose it to be done by force and armes XXII And therefore no Capias lieth there in such case XXIII Speciall actions of trespasse are these that follow XXIV De Parco fracto for taking distresse out of the Pound XXV Rescous for taking a distresse away before it be impounded XXVI Ejectione firmae when lessee for years of land is ousted where the term it self shall be recovered if it be not past CHAP. 33. Appeal I. THese are Common Pleas an Appeal that concerneth life is the parties private action prosecuting also for the Crown in respect of a felonie II. Appeals of the death of a man are given to the heir of the party slain CHAP. 34. A Writ of right Patent and justicies I. THus far of original writs Commissional are these which are not returnable but determinable before the parties to whom they are directed II These are Commissionary or meer Commissions III. Of the first sort are those that give authority to a Court Baron to hold plea. IV. Here the suitors are the Judges not the Sheriff or Steward V. These are a writ of right Patent or a Justicies VI. In both these the same course is holden as is those that went before VII A writ of right patent is a writ for the meeâ— right of Tenements holden of a common person to be brought in the Lords Court of that Mannor VIII If he hold noe Court or otherwise yield hiâ— Court to the King for that time then it may be in the Kings Court with this clause Quia B. capitalis Dominâ— nobis inde remisit curiam IX This writ must shew by what service the land iâ— holden X. The writ remaineth alwayes with the party hiâ—self XI If one privie in blood not past the third degree enter after the death of the ancestor that died not seiâ—ed in such case a writ of right patent is called a wrâ—â— of right de rationabili parte terrae XII A woman that hath received part of hâ— Dower shall have a writ of right of Dower patent foâ— the remnant whereof she is to be endowed XIII A Justicies is a writ that giveth the County Court power to hold plea. XIV And therefore it t s called a Viconte writ oâ— this sort are XV. An Assize of petty nusance where a mill oâ— such like is levied to ones nusance XVI All of them are comprehended in these Verse rica ca _____ gultum ges lendinum Fab fur porta domus vir gur mo murus ovilâ— Et pons traduntur haec vicecomitibus XVII Admeasurement of Dowerby the heir wheâ—â— his Guardian or himself endowed the wife in his noâ—â— age of more then she ought to have XVIII Admeasurement of pasture by a Commoner whom another Commoner wrongeth by putting iâ— more Beasts into the Common then he should XIX Here all the Commoners shall be admeasured XX. A nativo habendo for the Lord that hath an Inheritance in any Villein when his Villein departeth away from him XXI Here if the Villein plead that he is frank the Sheriff cannot proceed XXII Rationalibus divisis for that Lord whose land or waste hath by little and little been incroached upon within time of memorie until now by a Lord whose Seigniory adjoyneth in another ville against the Lord so incroaching XXIII A homine replegiando for one imprisoned or in prison deteined where he should not XXIV A Replevin for goods or chattels distreined XXV This may be both by writ and plaint in any Court Baron as well as in the County Court XXVI This being by plaint it shall not proceed if any thing touching the freehold come in question XXVII Upon the pluris not served by the Sheriff his power is determined and the parties shall plead in Bank XXVIII Many of the actions that went before both for real things to be done as Consuetudinibus servitiis secta ad molendinum Quod permittat Mesne Dower unde nihil habet And also personal actions as annuity debt detinue accompt covenant trespasse to what summe soever may as well be brought in the County by Justicies as to be returnable in the Common Place XXIX Meer Commissions are these that follow being all of them to be directed to choice persons such as it shall please the King XXX Oyer and Terminer to heare and determine upon some heinous offence committed XXXI In these and such like commissions lie properly a writ of Association and Si non omnes XXXII Association is a writ for other to be associate into their company XXXIII Si non omnes is a writ for the rest to proceed although the other come not XXXIV Ad quod damnum to enquire what hurt it may be to the King Country or any other for the King to grant such or such a thing XXXV Perambulatione facienda to enquire of the bounds of 2. Seigniories or â—ownes where an incroachment by little and little is supposed to have been made XXXVI This must be by the mutual assent of both Lords CHAP. 35. Plaints and Bills I. SO far of writs it followeth to speak of Plaints and Bills both being in such Courts as hold pleâ— without original writ II. A plaint is in matters that concern Common pleas III. A Plaint of trespasse in a Court Baron shall not proceed if the freehold come in question IV. A Bill is in pleas of the Crown as an appeal of felonie mayhem rape c. may be by Bill before one Coroner of the County finding first sureties to the Sheriffe V. One whose attendance is necessary in any Court shall sue and be sued there in form of Plaint which is called a Bill of Priviledge CHAP 36. A Quo Warranto Office Indictment I. THe King hath a speciall means of suit for trying of the right of Franchises usurped upon him called a Quo Warranto and is to be brought before the Justices in Eyre II An Enquiry for the King is when
c. xiii If on the defendants part then it is Et de hoc ponit se super recordum illud or super Patriam XIV Issue in a writ of Right cannot be joyned upon the meer right but by the party himself and this is called the joyning of the Mise XV. Where the Plaintiff in his his replication maketh title at large the Tenant may joyn issue upon the title by saying Veigne Assize sur le title and this is called a Pleading to the action at large XVI But in a personall action when the title of the Land cometh in question it lyeth not till issue ioyned and yet in that case it never lyeth for Tenant for life but only for tenant for years Bailiff c. XVII Aid in these actions shall be of the King before issue joyned onely XVIII This being a matter In fait viz. done in the country is tryable by the oath of twelve free and lawfull men of the same County indifferently chosen XIX Four of the Jury must be of the same Hundred XX. If the thing in issue lye in the notice of two severall counties and not of one only the Jury shall be made equall out of both XXI But upon an Indictment of an offence against the Crown the tryall shall never be by Joynder of Counties XXII But if the Defendant plead in any Action that the Plaintiff is a villeine regardant to a Mannor of his in in another County yet the same shall be tried in the County where the writ is brought XXIII Where a Peer of the Realm is party to the Action a Knight must be returned upon the Jury XXIV In a Court of Pipowders the tryall is by the Merchants XXV The Jury in a writ of Right is called the grand Assize being four Knights or others in default of Knights choosing of twelve unto them XXVI This Iury is called the Grand Assize because it alwaies consisteth of more then 12. viz. of 16. XXVII Upon tryall by Jury challenges are allowed for the parties if they will both to the Array to the Pols and are to be tryed by some of the jurors XXVIII If it be before any Iurors sworn the Court shall choose Triers but when any of the Iurors are sworn they must try it XXIX Challeng to the Array is when the Jury is not sufficiently impanelled XXX Upon iust cause of exception to the Sheriff afterwards to the Coroner the Court shall choose certain persons to return the jury who are called Esliors XXXI And then the parties shall never afterwards make any challenge to the array XXXII Challenge to the Poll is when any of the jurors are not fit to passe upon the triall XXIII This Challenge must be taken before the panell be perused and shall be tryed by two of the jurors chosen by the Court. XXXIV But Challenges that sound not in reproach of the juror shall be examined upon his Oath which is called examination upon Voire Dire XXXV He that challengeth the array if it passe against him or that he release it shall never challenge the polls without shewing cause presently which shall be tryed out of hand XXXVI After Challenge to a juror for one cause which passeth against the Challenger hee shall not challenge him for another XXXVII In Indictments and appeals of felony the defendant may challenge thirty five jurors without shewing cause and this is called a peremptory challenge XXXVIII When there lacketh some to fill the jury others of the same sort shall be taken till it be full and they are called a Tales XXXIX The Tales must be an even number and lesse then the principal Pannel as Decem Tales Octâ— Tales c. xl Every Tales must be of lesse number then the other as after an Octo Tales a sex Tales c. xli But in Indictments and appeals that touch life a Tales may be of a greater number then the principal pannel xlii The Jury being charged may neither eat noâ— drink but by leave of the Justices before their Verdict given xliii Doing so before they be agreed it maked their verdict void but after they are agreed it is onely finable XLIV The Jury upon arraignment acquitting onâ— that was found guilty of the death of a man upon an enquiry before the Coroners super visum corporis musâ— finde who did the fact XLV The Jury in an Assize of novel disseisin shalâ— inquire of the plea in abatement XLVI And therefore in such an Assize no plea iâ— abatement is answerable XLVII An Infant bringing an Assize if a matteâ— done in the same County be pleaded against him thâ— Jury shall inquire of all the circumstances XLVIII The like inquiry of the circumstanceâ— shall be if in an Assize brought against him he pleaâ— to the Assize at large XLIV If the tenant in a mordancester traversâ— any point of the writ yet the jury shall inquire of alâ— the points and any one found against the Demandanâ— abateth the writ L. For the better direction of the Jury in their verdict greater liberty is permitted in pleading a matteâ— doubtful in law LI. For somtimes a traverse may be omitted LII Sometimes also the speciall matter may bâ— pleaded together with the general issue LIII Likewise the Court may be abridged before verdict so as the original remain true LIV. After acquittal upon an appeal or indictment of felonie or treason he shall never be drawn in question for the same offence again LV. In writs of right and in appeals that touch life trial may be by battail at the defendants choice LVI The battail in a writ of right may be by Champions who must be freemen LVII Here the demandants Champion must have seen him or his ancestors in possession and thereof take his oath LVIII The battail in an appeal must be in proper person and therefore here the defendant is restrained from the choise of Battail and must needs try it by Jury if there be any notorious presumption of the fact in him or imbecility in the Plaintiffe Also against a Peer of the Realm bringing an appeal the defendant shall not wage Battail LIX In a writ of Dower issue taken upon the death of her husband shall be tried by witnesses LX. In some cases also the trial shall be by the defendants oath as 1. Where the tenant in a Praecipe quod reddat alledgeth that he was lawfully summoned according to the law of the land 2. In meer personal contracts growing without deed or privitie of others the defendant may wage his law LXI Therefore in such kinde of actions executors are not chargable LXII No wager of Law shall be against the King LXIII But wager of law may be upon plaints in Court Barons for personal things under 40 Sh. LXIV An issue of Law returned a Demurrer is when admitting the matters alledged either of them resteth in the judgment of the Court. LXV The demurrer being joyned upon an exception to the original it self or Count for fault appearing in
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
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