by the bringers hereof the bodies of the said C. D. E. F. conuicted of the said forcible holding by my record commanding you and euery of you in his Ma. name that you receiue them safely keepe them in your said Goale vntill they shall haue made their fine and ransome to the King and be deliuered thence by the order of the law Hereof faile you not vpon the perill that will fall thereof Dated at Salden the 30. day of I. in the third yere of the raigne of our soueraign Lord K. Iames c. 16 And though the words of the before rehearsed stat of 8. H. 6. be Vpō cōplaint made to the I. of P. or one of thē c. yet those words do not alwais bind a I. of P. to expect the cōplaint of the party grieued or to omit to do his duty in inquiring of repressing punishing of force because the party grieued by the forcible entry or detaining of possessiō is ignorāt in séeking lawfull redres for his receiued iniury or doth intēd to take his remedy by other means but a I. of P. hauing notice of such forcible entry A Iustice may inquire of forcible entries without complaint or detaining of possession by force though it be by others and not by the party grieued may and of duty ought to goe to the place where the same force is committed to make inquisition thereof 7. E. 4. 18. and if the force be found to make restitution to the party expelled or put out by force And so by his meanes the offendor shall be punished according to his desert the partie wronged shal be restored the king shall be intituled to a fine all which without the said Iustices diligence would be omitted An action of forcible entry 17 If a man that is seised of lands or tenements of an estate in fée simple Fitz. Na. B. 248. fée taile for terme of his owne life or for the terme of anothers life be disseised or expelled thereof by force he may haue an action of Trespas of forcible entry vpon the foresaid statute of 8. H. 6. against him or them that did so disseise or expell him thereof and so he may if he be put out 6. H. 7. 12. or disseised of his lands or tenements peaceably and after the disseisor or he that doth expell him 14. H. 6. 1. doth hold them with force And in like sort he may haue the same action 3. E. 4. 19. 10. E. 4. 11. if any doth enter into his said lands or tenements with force after doth defend and hold them by force then he which is so put out and holden out with force may haue this action though the words of the statute be in the disiunctiue viz. disseised with force or disseised quietly after holden out with force for that the intent of the statute was to punish all such forces whether it were vpon the entry disseisin made or vpon the holding and detaining of the land with force in all which cases he who is so disseised or put out may haue an action of forcible entry vpon the said statute of 8. H. 6. and shall recouer his damages and costs to the treble of that which shal be found by the Enquest that he is endammaged 19. H. 6. 6. 22. H. 6. 57. 9. H. 6. 19. hath spent in his suit The writ of forcible entry must be Vi armis as wel for the occupation as for the first entry And it is to be noted that the writ declaration in an action of forcible entry must be that the def entred vi armis and not illicite or by any other such words for if the writ be otherwise it shall abate seeing a writ of forcible entry is alwaies vi armis 37. H. 6. 23. 38. H. 6. 1. and proces of Outlawry lieth in it and the declaration must expresse the certainty of the lands whereupon the defendant did make his forcible entry and which they be and not suggest that he did enter vpon certaine lands in D. And in this action of Forcible entry 35. H. 6. 6. 49. Ed. 3. 2. Co. lib. 3. 12. and in all actions Quare vi et armis a Capias doth lie and where a Capias doth lie in the proces there after iudgement a Capias ad satisfaciendum doth lie and there the king shall haue a Capias pro fine Who may brīg an actiō of forcible entry 18 None can pursue or maintaine this action of Forcible entry Fit Na. B. 248. but he who hath fréehold at the least in the lands or tenemēts so entred vpon for tenant for terme of yéeres or a copyholder cannot maintaine this action for that the words of the said stat of 8. H. 6. be If any person be put out Sta. 8. H. 6. 9 or disseised of any lāds c. and the words of the writ grounded vpon the said statute be Expulit et disseisiuit and tenant for terme of yéeres or a copyholder cānot be disseised séeing disseisin is alwaies of a fréehold which neither of them haue in that land But if tenant for terme of yéeres or a copiholder be put out by force or put out peaceably after holden out with force of land which either of them doth hold by the said estate then vpon cōplaint made by the party grieued to a I. of peace after inquisition thereof by a Iury the same force found the said Iust may reseise the said lands cause restitution thereof to be made to the party so put out for in this case the same cōplaint may be made to the said I. of P. aswell by him in the reuersiō as by the tenāt for terme of yeres or copiholder séeing he in the reuersiō who is disseised of his fréehold by this forcible entry is may as well be termed the party grieued as the tenant for terme of yéeres or the copyholder for their said particular estates And when the Iustice of peace hath made restitution the particular tenant for terme of yeares or copyholder and also he or they in reuersion shall hold and enioy their said seuerall estates in the same lands 4. 5. P. M. Di. f. 142. in such sort as they did before the said Forcible entry made But if tenant for terme of yeares be expelled out of that land which he so holdeth for the terme of yeeres he in the reuersion cannot bring an action of Forcible entry vpon the statute of 8. H. 6. for the same although it be a disseisin to him for that the expulsion is not done immediatly to him Fit Na Br. 248. 9. H. 6. 19. 19 If a man do enter by force into lands or tenements He that hath title entreth by force wherunto he hath right or title to enter doth put out him who hath the freehold of the same lāds in this case he who is so
put out by force cannot maintaine an action of trespas of forcible entry against him who hath title to enter for that his entry was no disseisin to the other who was not lawfully seised thereof but he may invite him for this forcible entry this indictment being found he shal be restored to his possession againe by a Iust of peace by vertue of the said statute of 8. H. 6. And after that 22. H. 6. 18. he that did first enter forcibly by lawful title may again enter peaceably or bring an assise of Nouel disseisin at his pleasure Fit Na. B. 249. 22. H. 6. 37. 20 If a man do enter into lands or tenements disseise one with force He that hath possessiō sueth a writ of forcible entry and after the disseisée doth réenter againe yet the same disseisee may pursue an actiō of Trespas of forcible entry against the disseisor recouer his treble damages though he be seised of the land at the time of the writ brought And therefore it is not a sufficient plea in a writ of forcible entry for the def to plead that the plaintife was seised of the same land the day of the said writ brought 20. H. 6. 12. 22. H. 6. 23. 21 A man may haue a writ of Forcible entry of a rent as well as of land Forcible entry of a rent or common for one may distraine with force for rent and that doth counteruaile an entry with force And one may haue a writ of Entry of a rent which doth suppose that the def did enter into the rent And in an Assise of rent the disseisin may be found to be done by force 39. Ass p. 4. If there be thrée iointenants of land out of the which there is a rent going vpon a distresse taken one of thē maketh rescous by force he only shal be imprisoned yet the others be disseisors And the like law is of a commō of pasture for a commoner may be force be expelled or kept out of his common And a man may kéepe his beasts in another mans ground by force 27. Ass p. 30 claiming common where he hath no common and that is disseisin by force And in either of the cases aforesaid a Iust of peace vpō complaint to him made may remoue the force but not award restitution because they are to be taken vsed in another mans land 2. H. 7. 16. 17. Ass p. 14 22 If diuers do enter with force to the vse of another Forcible entry to the vse of another who himself doth not enter but after doth agrée to this entry to his vse this agréement doth make him a disseisor or a trespassor but he shall not thereby be punished for the force for there can be no forcible entry without an actuall entry Forcible detaining by words only And yet there may be a forcible detaining of possession by words only without act as if he that hath wrongfully but peaceably entred into another mans house expelled and put out the owner thereof shall say to the same owner if he do come thither againe to enter he will kill him this is a forcible detaining of possession 23 If there be two iointenants or tenants in common of certaine lands one of them doth expell put forth the other out of possession of the said lands by force Iointenants or tenants in common expelling each other by force he that is so expelled 8. Ed. 4. 9. 19. 10. H. 7. 27. Fit Na. Br. 249. 21. E. 4. 10. 18. H. 6. 5. may haue an action of Trespas of forcible entry against his companion that did so expell him vpon the said statute of 8. H. 6. for the words of the writ may be verified Expulit Disseisiuit and therupon he shall haue a writ of Restitution to restore him to his former estate But if one iointenant or tenant in common of lands doe expell the other by force out of the same lands he that is so expelled cannot maintaine a writ of Entry vpon the statute of 5. R. 2. against his companion that so put him foorth and suppose that he did enter into the same lands vbi ingressus non datur per legē for that his entry and possession in that land is lawful through the whole land in respect of his owne moitie or estate and further séeing by that action the plaintife is to recouer but only dammages as in an action of Trespas and not to be restored to his possession which action of Trespasse one iointenant or tenant in common cannot maintaine against another for any Trespas done in the land so holden by them Who may bring a writ of Entry vpon the statute of 5. R. 2. 24 None can maintaine a writ of Entry vpon the said statute of 5. R. 2. 8. E. 4. 9. 19. vbi ingressus non datur per legem but onely tenant in fée simple tenant in fée taile or tenant for terme of life at the least for tenant for terme of yeares a copyholder or a tenant at will cannot pursue and maintaine it seeing they haue but the manurance and occupation of the land 4. H. 7. 1. Neither can the King bring the said Action nor an Assise Eiectione firmae nor action vpon the statute of 8. H. 6. Nor any other action which doth proue him out of possession of the land Turning a watercourse by force 25 If a man do enter into another mans ground Plow Com̄ 467. and turne away by force an ancient watercourse which he hath running to his myll the party grieued may haue a speciall Assise of Nusance vpon the statute of 4. H. 4. against the offendor recouer his double damages yet he was not put out nor disseised of his freehold but a Nusance was done to the dammage thereof The plea of not guilty in forcible entry 26 In a writ of Forcible entry the defendant may plead not guilty Lib. int̄ fol. 330. Fit N. B. 249. 14 H. 6. 16. 22. H. 6. 57. 22. H. 6. 17. 9. H. 6. 19. 21. H. 6. 39. that shal be a good plea. But if the defendant doe plead some matter in barre yet he must in the end of the barre trauerse and deny the entry with force which is alledged against him as to say without that he did enter with force c. And the plaintife must answer to that speciall matter alledged in the barre without answering to the Trauerse of the force and vpon that speciall matter the issue must be ioyned and not vpon the force And if that speciall matter alledged in the barre be found by verdict with the defendant he shal be excused and the force shall not be inquired of But if it be found with the plaintife and against the defendant then the defendant shal be attainted of force and render treble dammages and treble costes without inquirie of the force
or defeated of his land lease annuitie debt accompt action suit or demaund is no lesse perillous and preiudiciall to the party thereby wronged if it be not discouered preuented or auoided then the wresting and euicting from him of the same land lease annuitie debt or demaund And the offendors therein do as iniuriously and with as small colour of iustice wrest from the party grieued his said land lease annuitie debt c. as the robber doth take a purse from the traueller by the way or the burglarer his intended prey from the houskéeper in the night And if those reall dueties or things in action were conuerted into things personall the vndue conueying of them in this vnlawfull manner would deserue to be accounted and punished amongst other felonies as in some sort it is ordained so to be by the statute of anno 5. Eliz. St. 5. El. 14. And because diuers persons did forge false déeds and miniments and did cause them to bée openly pronounced published and read to trouble change or vndoe the lands of other persons and to vndoe and troble the possessions and titles of the kings peope therefore by a statute made anno 1. H. 5. it was ordained St. 1. H. 5. 3. that the partie grieued thereby shall haue his suit in that case and recouer his dammages and the partie conuict shall make fine and ransome at the kings pleasure But forasmuch as the wicked and daungerous practise of making forging and publishing of false and vntrue déeds and writings was much more practised and put in vre in all the parts of this Realme than in times past it had béene to the disherison of diuers persons and the great subuersion of iustice which hath growne chiefely by that the paines and punishments limited for such great offences by the lawes and statutes of this Realme before time were so small and easie that such euill people were not afraid to enterprise the practising and doing of such offences The repeale of former statutes of Forgerie Therefore by a statute made anno 5. St. 5. El. 14. El. it was enacted That all other statutes before that time made and prouided for forger of false déeds charters miniments or writings and all and euerie penaltie appointed for the same should from the first day of Iune then next following be void Forging of a déed whereby anothers fréehold shal be troubled 3 To the intent that condigne or some sharper punishment might bée ordained for such as should bée offenders in that crime of forgerie than in time past had béene by the sayd statute of anno 5. Elizab. it was established St. 5. El. 14 That if any person or persons after the first day of Iune then next following vpon his or their owne head and imagination or by false conspiracie and fraud with others shall wittingly subtilly and falsly forge or make or subtilly cause or wittingly assent to bée forged or made any false déed charter or writing sealed court roll or the will of any person or persons in writing to the intent that the estate of Fréehold or inheritance of any person or persons of in or to any lands tenements or hereditaments fréehold or copihold or the the right title or interest of any person or persons of in or to the same or any of them shall or may bée molested troubled defeated recouered or charged Or shall pronounce Publishing of a forged déed publish or shew forth in euidence any such false and forged déed charter writing court roll or will as true knowing the same to bée false and forged as is aforesaid to the intent aboue remembred and shall bée thereof conuicted either vpon any action or actions of Forger of false deeds to bee founded vpon this statute at the suit of the partie grieued or otherwise according to the order and course of the lawes of this Raalme or vpon Bill or Information to be exhibited into the Court of Starre chamber according to the order and vse of the Court he shall pay vnto the partie grieued his double costs and dammages to bée found or assessed in the Court where such conuiction shall bée and also shall be set vpon the Pillorie in some open market towne or other open place and there to haue both his eares cut off and also his nostrels to be flit and cut and seared so as they may remaine for a perpetuall note or marke of his falshood and shall forfeit to the Queene her heires and successors the whole issues and profits of his lands and tenements during his life and shall suffer and haue perpetuall imprisonment during his life The same dammages and costs to bée recouered at the suit of the partie grieued as is aforesaid to be first paid and bee leuied of the goods and cattels of the offendors and of the issues and profits of the said landes tenements and hereditaments of such partie conuicted or of one or both of them the sayd title of the Queene her heires and successors to the same notwithstanding Stat. 5. El. 14 4 If any person or persons after the said first day of Iune next Forging a déed whereby a lease or annuitie may bée claimed vpon his or their owne imagination or by false conspiracie or fraud had with any other shall wittingly subtilly and falsly forge or make or wittingly subtilly or falsly cause or assent to bee made and forged any false Charter Deed or Writing to the intent that any person or persons shall or may haue or clayme any estate or interest for terme of yeares of in or to any Mannours Lands Tenements or Hereditaments not beeing Copihold or any Annuitie in Fee simple Fee tayle for terme of life liues or yeares Or shall as is aforesayd forge make or cause or assent to bee made or forged any Obligation or Bill obligatorie or any Acquitance Release or other discharge of any Debt Account Action Suit Demaund or other thing personall Or shall pronounce publish or giue in euidence such false or forged Charter-Déed Writing Obligation or Bill obligatorie or any Acquitance Release or discharge as true knowing the same to bee false and forged and shall bee thereof conuict by any of the wayes or meanes aforesayde Then hee shall pay to the partie grieued his double costs and dammages to bee found and assessed in such Court where the sayde conuiction shall bée had and also shall bee set vpon the Pillorie in some open Market Towne or other open place and there haue one of his eares cut off and also shall suffer imprisonment by the space of one whole yere without baile or mainprise Stat. 5. El. 14 5 The partie and parties grieued by reason of any the offences aforesaid Seuerall remedies for the partie grieued shall and may at his and their pleasure haue and sue his action of forger of false déedes vpon this Statute against any of the offendors in the same by originall writ out of the Chauncerie and
the land or thing in variance so it is Maintenance to take part in any quarrell depending in suit in the Kings court or to worke any fraud whereby iustice may be hindered Westm 1. 3. E. 1. 28. as it appeareth by the statute of West 1. whereby it is ordained That if any Clerke of the kings or of any Iustice The penalty for maintaining of suits do receiue the presentment of any Church for the which any plea or debate is in the K. Court without the kings speciall licence he shal loose the Church and his seruice And if any Iustices or Shirifes Clerke take part in any quarrell depending in the Kings Court or doe worke any fraud whereby common right may be delayed or disturbed he shall loose his seruice and be further punished if the Trespas doe require St. 32. H. 8. 9 And after by a statute made Anno 32. H. 8. there was a greater penalty imposed vpon those who shall be maintainors of suits By which statute it was ordained That no person or persons whatsoeuer shall vnlawfully maintaine or cause or procure any vnlawfull maintenance in any action suit demaund or complaint in any of the Kings Courts of the Chauncerie Starre-chamber White hall or elsewhere within any of the K. dominions of England or Wales or the marches of the same where any person or persons haue authoritie by vertue of the K. Commission Patent or Writ to hold plea of lands or to heare examine or determine any title of lands or any matter of witnesse concerning the title right or interest of any lands tenements or hereditaments Or shall vnlawfully retaine for maintenance of any suit or plea Retaining for maintenance or imbracing or suborning of Iurors any person or persons or embrace any fréeholders or Iurors or suborne any witnesse by letters rewards promise or by any other sinister labour or meanes for to maintaine any matter or cause or to the disturbance or hinderance of iustice or to the procurement or occasion of any manner of Periurie by false verdict or otherwise in any of the Courts aforesaid vpon paine of forfeiture for euery such offence x. pounds to the king and Inf. to be recouered by him that will sue for the same in any of the kings Courts of Record by Action of Debt Bill Plaint or Information wherein no W.E.P. c. if the suit be commenced in any of the kings Courts within one yeare next after any such offence committed or els not 10 As it is Maintenance to haue by agréement part of the land in variance or part of the gaines of the suit in question so is it Maintenance to buy a pretenced right or title of another of or to lands or tenements whereof the seller hath no possession for this oft times the cause of Subornation of witnesses procurement of Periurie and of the subuersion of iustice For the redresse whereof by the last specified Statute of Anno 32. H. 8. St. 32. H. 8. 9 it was first enacted That all Statutes heretofore made concerning Maintenance Champertie and Embracerie or any of them then standing in force should be put in due execution according to the effects of the same And also by the same statute it was ouer that ordayned Maintenance by buying of pretēced titles That no person or persons of what estate degrée or condition soeuer he or they be shall bargaine buy or sell or by any meanes obtaine get or haue any pretenced rights or titles or take promise graunt or couenant to haue any right or title of any person or persons in or to any Manors Lands Tenements or other Hereditaments but if such person or persons which shall so bargaine giue graunt couenant or promise the same their auncestors or they by whom he or they claime the same haue béene in possession of the same or of the reuersion or remainder thereof or taken the rents or profites thereof by the space of one whole yeare next before the said bargaine couenant graunt or promise made vpon paine that he that shall make any such bargaine sale promise couenant or graunt shall forfeit the whole value of the Lands Tenements or Hereditaments so bargained sold promised couenanted or graunted contrary to the forme of this Act. And the buyer or taker thereof knowing the same shall also forfeit the said value of the said Landes Tenements or Hereditaments so by him bought or taken as is aforesaid the one halfe of the said forfeitures to be to the king and the other halfe to the party that will sue for the same in any of the kings Courts of Record by Action of Debt Bill P. or I. c. wherein no W. E. P. or I. c. if the suit be commenced by A. B. P. or I. in any of the kings Courts within one yeare next after any such offence committed or els not Prouided alwayes The possessor purchaseth a pretenced title That it shall be lawfull to any person or persons being in lawfull possession by taking of the yearely ferme rents or profites of any Manors Lands Tenements or Hereditaments to buy obtaine get or haue by any reasonable meanes the pretended right or title of any other person or persons to be made to of or in any such lands tenements or hereditaments whereof he shal be so in lawfull possession Any thing in this Act c. notwithstanding 22 23. El. Dyer 374. 6. Ed. 6. Dy. 74. Plow Com̄ 87. 11 If a man take a lease or promise a lease for the terme of certain yéeres to another of land contrary to the foresaid statute of Ann̄ 32. H. 8. What is selling of a pretenced title viz. of those lands whereof neither he himselfe nor any of his auncestors nor any by whō he doth clayme the same land haue béene in possession of the same nor of the reuersion nor remainder thereof nor taken the rents or profits thereof by the space of one whole yeare before the said bargaine graunt and demise made he is within the danger of the foresaid statute of Anno 32. H. 8. as well as if hée had made an estate for the terme of life in taile or in fée simple of the same lād for that the scope and effect of the statute is vtterly to root out of Maintenance and bargaines and promises of Titles for the which the words of the statute be That no person shall sell or buy any pretenced rights or titles And a lease is no more lawfull for one yeare then for an hundred yeares and some man will be as ready to maintaine to haue a lease for yeares as to haue a greater estate Wherefore he that doth make a lease for yeares or make promise of a lease for yeares of lands whereof he hath but a pretenced right or title shall forfeit to the King and him that will sue the whole value of the inheritance of the land as well as if he had bargained and sold the fée simple thereof But it is specially to bée respected in that case that he hath but a pretenced right or title at the time of his Lease made for if he hath a good title in the same land at
or yeares of it and then doth assure it to the bargainée this is deceit and a writ of Deceit is maintenable against him for it for though he hath assured the land he hath not assured it clére and discharged according to his bargaine but hath deceiued the purchasor therein 11. E. 4. 6. 18 If a man doe sell a piece of cloth to another Deceit vpon a warranty and warrant it to be fortie elles long and it is not so long the buyer may haue a writ of Deceit against the seller of the same cloth by force of his warranty although the warranty be by word onely 6. Ed. 6. Dyer 76. without writing so that it be at the time of the bargaine made But if the warranty be at another time after the bargaine made then the buyer must haue some writing to testifie this warranty or otherwise hée shall not haue a writ of Deceit against the seller 9. Ed. 4. 13. Fit Nat. Br. 98. 19 If an action of Debt bee brought against two as executors Deceit by confession of an action brought against executors whereas one of them was neuer executor nor administrator and if he which is executor do make default he who was not executor doe appeare confesse the action he that was named executor may haue against the other an action of Deceit for he hath vndertaken to plead a plea to the action of debt which he could not doe and that also to the deceit and hurt of another 26. H. 8. 7. 20 If a man doe marry a wife possessed of goods Couin by aliening of his wiues goods those be the husbands to giue and dispose at his pleasure during the mariage betwéene them But if after they be diuorced the wife shall haue her goods againe vnlesse the husband hath giuen or sold them before the Diuorce for in that case the wife is without remedie And yet if the husband doe alien those goods by couin to the intent to defraud and defeat his wife of them and after they be diuorced then shee may auerre the couin and recouer the goods from the alienée 35. H. 6. 5. Co. lib. 3. 78 83. li. 5. 83. 21 Though buying of goods in an open marketh doth worke an alteration of the property of the same goods Sale of goods in opē market by couin and doth bind the Title as well of all strangers as of the owner if the goods be sold in such a shop or place as is commonly vsed for the selling of goods of the same kind or nature yet if one man do steale purloine or iniuriously take away another mans goods and then by couin betwéene him and a third person doth sell the same goods in an open vsual place of sale 7. H. 7. 12 in an open market or faire to the third person who at the time of buying of the same goods did know that the seller came not lawfully by them or that they were not his goods this is a void sale And in respect of this Couin the first and right owner of these goods may lawfully take and carrie them away notwithstanding the said sale in open market Fraudulent assurances to defeat the discontinuée in tayle 22 If the father being tenant in tayle of certaine lands M. 34. E. 1. Fitz. Garrantie 88 will make a feoffement thereof to another with warrantie and so discontinue the estate taile hauing assets of other lands in fée simple to leaue to discend to his son and heire and then within few dayes before his death will alien the same fée simple land to his sonne and heire and to his heires vpon couin and to the intent that the same fee simple land should not be pleaded to come by discent from the sayd father to his sonne nor adiudged as Assets by discent in his hands yet this couin being found by verdict in a writ of Formedon brought against him by the heire of the land entailed shall giue the discontinuée aduantage to plead that the same heire had assets by discent in fee simple left him by his said father for that the law doth adiudge this alienation made by the father to the sonne a little before his death by couin to defraud the discontinuée of his lawfull plea to be as no alienatiō but that the father dyed seised of the same fée simple land and that it came to his sonne and heire by discent 23 Because Lords of Mannors lands and tenements haue as great right to enioy the wardship of the bodies and lands of their wards Fraudulent conueyance to defeat a Lord of his wardship as they haue to their other inheritances lands and goods and it is as great an iniury to deceiue them thereof by couin and collusion as to defeat and defraud them of their other lawfull titles therefore by a statute made at Marlebridge anno 52. H. 3. it was enacted That if any man do enfeoffe his eldest sonne or heire St. 52. H. 3. 6 being within age of his inheritance that therby the Lord might loose his wardship yet notwithstanding such feoffement the chiefe Lord shall haue his wardship And by the said statute it was further ordained That if any persons meaning to demise their lands for terme of certaine yeares that they might thereby defeat the Lords of the fee of their wardships will faine false feoffements containing that they are satisfied of the whole seruice due vnto them vntill a certaine terme and that such feoffées are bound to pay at the said term a great summe to the value of the same lands or much aboue so that after the said terme the land shall reuert to them or their heires for that no man wil desire to hold the same of so great a price yet by such fraud no chiefe Lord shall loose his wardship And if the chiefe Lords do by iudgement of the Court recouer their wardships yet the feoffees shall haue their action reserued to recouer their terme or fée when the heires shall come to their lawfull age And for the further preuention of couin in auoiding of wardships by one other stat made anno 34. H. 8. it was ordained St. 34. H. 8. 5 That if any person or persons hauing estate of inheritance of or in any Mannors lands tenements or hereditaments holdē of the king by Knights seruice in chief or otherwise of the king by Knights seruice or of any other person or persons by Knights seruice haue giuen at any time since the 20. day of Iuly anno 32. H. 8. anno Dom. 1540 or hereafter shall giue will deuise or assigne by will or other act executed in his life his mannors lands tenements or hereditaments or any of them by fraud or couin to any other person or persons for terme of yeares life or liues with one remainder ouer in fee or with diuers remainders ouer for terme of yeares life or liues with one Remainder ouer in fée simple to
of gift of goods to an other in satisfaction of his debt or for any other reasonable cause How a déed of gift may be made without fraude and will eschew therein the suspition and question of fraude or of a fraudulent gift it is expedient for him to make the same déede openly and before his neighbors or some men of credite in those partes where he doth liue and not in any secret place or before witnesses of small credite or vnknowne in that Countrie and further that the goods which shall be aliened by that déede of gift be set downe in particular and praised to the vttermost value by indifferent persons or seene that they be of the same valew and that the partie to whom the gift is made doe presently take them into his owne possession and carry them away for to leaue them in the Donors possession is an vndoubted argument of trust which trust is a principall vaile of fraude and deceit for though betwéene the Donor and the Donée this trust hath a pleasing goodly shew of confidence and faithfull and true dealing yet betwéene the same Donor and his Creditors it is méere fraude and deceit for the Donor maketh his déede of gift of trust hoping the Donée will not deceiue him who by the selfe same déede meaneth to deceiue others But as a déede of gift must be made Bona fide viz. without any trust so must it be made vpon good consideration A déed of gift must bee made vpon valuable consideration viz. vpon valuable consideration For if a man being in debt to diuers persons will make a déede of gift of his goods to his sonne his nephew or neare kinsman in blood and deliuer him possession thereof and the Donée doth take and carrie away the goods and imployeth them to his owne vse In this case the deede is made bona fide for that the Donée hath taken and carried away the goods and it is made vpon good consideration viz. consideration of Nature and blood but it is not made vpon valuable consideration for money paid or wares deliuered according to the intent and meaning of the Prouiso aforesayd And further though héere is no trust expressed by the Donor in the Donée yet the Lawe doth intend that there is a trust implied betwéene the Donor and his sonne nephew or neare kinsman to whome hée hath made this déede of gift and therefore accompteth it voyde against Creditors c. 31 Forasmuch as diuers persons after conueiances obtained and purchases made of lands tenements leases estates and hereditaments for mony or other good considerations may receiue great preiudice by reason of fraudulent and couenous conueiances estates gifts graunts charges and limitations of vses before made of in or out of lands so purchased which said◠gifts graunts c. are or shall be meant by the parties that so make the same to be fraudulent and couenous of purpose and intent to deceiue such as shall purchase the same or else by the secret intent of the parties the same be to their owne proper vse and at their frée disposition coloured neuerthelesse by a fained countenance and shew of words and sentences as though the same were made bona fide for good causes and vpon iust and lawfull considerations For the remedie of which inconueniences and for the auoiding of such fraudulent fained and couenous conueiances gifts graunts charges vses and estates and for the maintenance of iust and vpright dealing in purchasing of lands Fraudulent assurances to deceiue purchasors c. by a Statute made Anno 27. Elizab. it was ordained St. 27. El. 4. St. 39. El. 18 That all and euery conueiance graunt charge lease estate incombrance and limitation of vse or vses of in or out of any lands tenements or other hereditaments whatsoeuer had or made at any time héeretofore sithence the beginning of the Quéenes raigne that now is or héereafter to be had or made for the intent and of purpose to defraud and deceiue such person or persons bodies politike or corporat as haue purchased or shall afterwards purchase in fee simple fée taile for life liues or yeares the same lands tenements and hereditaments or any part or parcell thereof so formerly conueyed granted leased charged incombred or limited in vse or to defraud and deceiue such as haue or shall purchase any rent profit or commoditie in or out of the same or any part thereof shall be déemed and taken only as against that person and persons bodies politike and corporat his and their heires successors executors administrators and assignes and against all and euery other person and persons lawfully hauing and claiming by from or vnder them or any of them which haue purchased or shal hereafter so purchase for mony or other good consideration the same lands tenements or hereditaments or any part or parcell thereof or any rent profit or commoditie in or out of the same to be vtterly voide frustrate and of none effect Any pretence colour fained consideration or expressing of any vse or vses to the contrary notwithstanding Parties to fraudulent conueiances which doe auow the same All euery the parties to such fained couenous fraudulent gifts grants St. 27. Eli. 4◠leases charges or conueiances before expressed or being priuie knowing of the same or any of thē which shal wittingly put in vre auow maintain iustifie or defend the same or any of thē as true simple done had or made bona fide or vpon good consideration to the disturbance or hinderance of the said purchaser or purchasers leasees or grauntées or of or to the disturbance or hinderance of their heires successors executors administrators or assignes or such as haue or lawfully claime any thing by from or vnder them or any of them shall incurre the penaltie and forfeiture of one yeares valew of the said lands tenements and hereditaments so purchased or charged The one moitie whereof to be to the Queene her heires and successors and the other moitie to the partie or parties grieued by such fained and fraudulent gift graunt lease conueiance incombrance or limitation of vse to be recouered in any of the Q. Courts of Record by action of debt B. P. or I. wherein no E. P. or W. c. And also being thereof lawfully conuicted shall suffer imprisonment for one halfe yeare without baile or mainprise St. 27. El. 4. This Act or any thing therein contained shall not extend or be construed to impeach defeate make voide or frustrate any conueiance Conueiances made vpon good consideration and Bona fide assignement of lease assurance grant charge lease estate interest or limitation of vse or vses of in to or out of any lands tenements or hereditaments heretofore at any time had or made or hereafter to be had or made vpon or for good consideration and Bona fide to any person or persons bodies politike or corporate any thing before mentioned to the
lesse without award of the Kings Court he shall make fine according to the quantitie of the trespas and neuerthelesse sufficient amends shal be to them which haue receiued losse by such distresse Distraining out of his fee. Or if one do distrain another to come to his Court which is not of his fée or vpon whom hee hath no iurisdiction by reason of his Hundred or Bailiwike or doe take a distresse without his fée or the place where he hath iurisdiction or bailiwike hee shall make fine according to the quantitie of his offence Excessiue distresse Or if one do take any vnreasonable excessiue distresses which is grieuous and more than the quantitie of the debt or damages this is an oppression an he shall be amerced 41. Ed. 3. 26 29. Ed. 3. 23. As a man auowed the distraining of 200. shéepe and 16. beasts for ij pence rent and he was amerced therefore for all that he tooke aboue vj. shéepe were adiudged an oppression and so vnlawful But if a man distraine for homage 28. Ass p. 50 42. Ed. 3. 26. Co. li. 4. 8. Fitz. Na. Br. 178. 27. Ass p. 51 28. Ass p. 50 the distresse cannot be too excessiue how many beasts soeuer he doth take for that homage is not valuable though for rent fealtie and other seruices it may be excessiue And in like sort Oppression by often distresse if the Lord of a Mannor or any other who hath rent issuing forth of certaine land do distraine the tenant of the same land diuers times for rent or seruices where none is behind vnpaid this is an oppression of the same tenant who is distrained for in this case the partie who claimeth this rent cannot distraine for rent séeing none was due to him but his distresse is onely taken to vexe the tenant of the land and so to oppresse him And therefore the sayd tenant may haue an Assise of Souent foits distresse against the same Lord and recouer dammages of him according to the losse he hath receiued by the same distresses viz. for not plowing or for not manuring his land Lib. in t 82. Co. li. 4. 8. or for taking no profit thereby But it is otherwise if the same seuerall distresses were taken for homage Seueral distresses for one thing And so it is if a man do distraine for rent or seruices or for any other thing Fit Nat. Br. 71. and depending a suit betwéene the parties for the same rent seruice or other thing he who did distrain doth distrain again for the same rent seruice or thing for the which he did distrain before the beasts or goods of him whose hée did first distraine this is an oppression of him whose goods be twice distrained For the redresse whereof hée may haue a writ of Recaption A writ of Recaption against him who so did distraine his goods twice for one cause whereby hée shall recouer dammages for his second distresse And also hée that did take the same distresse shall make fine to the King for his oppression and wrong though the first distresse were lawfully taken yea and though the rent or seruice for the which he did distraine were behind vnpayed or vndone séeing by the first distresse the cause being prooued true and lawfull hée might haue had returne of the goods or cattell which hee did distraine vntill hée had béene satisfied of the rent seruice or thing for the which hée did distraine But a man may distraine the cattell of him who bée eating of his corne or grasse Distresses for damages for t or doing any other hurt in his ground 47. Ed. 3. 7 so often as he shall find them doing hurt therein and it is no oppression or wrong so to do for he doth not distraine twice for one cause as in the former case but distraineth seuerall times for seuerall new offences 4 And euerie Trespasse which the law doth interpret to bee iniuriously committed vi armis may also fitly be termed an oppression for it is done vpon the offendors owne wrong without warrant of law St. 5. R. 2. â— As if one person doe enter vpon anothers land expell him out of the possession therof whereas his entry is not giuen by the law or doth enter with strong hand or multitude of people Fitz. Tresp 13. 45. 234 20. H. 6. 22. 9. Ed. 4. 28. 9. H. 6. 64. 21. H. 6. 5. 21. Ed. 4. 18. 9. Ed. 4. 29. 10. Ed. 4. 4. 21. Ed. 4. 4. 1. H. 7. 10. 37. H. 6. 36. 21. H. 7. 1â— 11. H. 4. 64. 20. H. 6. 14. 3. H. 6. 12. 10. H. 6. 16. 43. Ed 3. 13. 4. Ed. 3. 48 47. Ed. 3. 22 43. Ed. 3. 35 1. H. 5. 1. and not in peaceable manner this is an oppression And so it is Oppression by Trespasses if one person doe pull downe breake or impaire anothers house or any part thereof Or if one person doe fell cut downe or carrie away the Timber Trées or Wood of another Or if one person doe fell cut tread downe or carrie away the corne or grasse of another Or if one person doe with his cattell depasture feed or eat the corne grasse or hay of another Or if one person doe take and carrie away the money plate iewels houshold-stuffe cattell corne hay or any kind of goods of anothers Or if one person doe plough till eyre or digge the ground or soyle of another Or if one person doe mayme imprison wound or beat another or doth mayme wound or beat the seruant of another whereby he looseth his seruice Or if one person doe hunt chase or hawke in the frée Warren of another or doe take kill or destroy his game there Or if one person doe fish in the Pond Poole Mildam Stew or other seuerall fishing of another Or if one person doe breake the doue-house of another or destroy the flight of the doues of another Or if one person doe digge the Myne of Tinne Lead Stone Coale Grauell Sand Matle Chalke c. of another Or if one person doe pull vp take away the meerestones which by consent haue béen set betwéen his own ground and anothers In all and euerie of which cases the partie grieued may pursue an Action of Trespasse against the offendor and declare that hée committed any of the said offences vi armâ—s wherein if the defendant be attainted hée shall pay to the plaintife his dammages sustained and to the King a fine for that he hath done an oppression to one of his subiects and made an offence to the law Fit Nat. Br. 183. 4. Ass p. 3. 5 Euerie Nusance which one person doth to the land of another Oppression by Nusances wherein the owner hath an estate for the terme of life in tayle or in fée simple may also bée accounted an oppression for those Nusances be put in practise by the offendors onely will and by his owne open playne and manifest
an 16. R. 2. 1. were made prouided to giue liberty protection safety to aliens strangers to defend them from wrongs and oppressions St. 23. El. 5. 23 It appeareth by the preamble of the stat of A. 23. Oppression by making of yron workes Eliz. that by the erection of sundry yron mils in diuers places of this realme not far distant from the city of London from the downes sea coasts of Sussex the necessary prouision of wood as well timber fit for building other vses as also all other fellable woods seruing for fuell doth daily decay become scant to the great dammage oppression of the city of London the suburbes of the same of al other persons hauing occasion daily to resort thither from all the parts of this realm for the remedy whereof by the same statute it was enacted That no person or persons shal conuert or imâ—loy or cause to be conuerted or imploied to coale or fuell for the making of yron or yron mettall in any yron mils furnace or haÌ„mer any maner of wood or vnderwood now growing or which hereafter shall grow within the coÌ„passe of 22. miles from and about the city of London or the suburbes of the same or within 22. miles of the riuer of Thames from Dorchester in the couÌ„ty of Oxford downward the same riuer of Thames or within foure miles of the foot of the hils called the Downes betwixt Arundell and Pemsey in the county of Sussex or within foure miles of any of the towns of Winthelsey and Rie or within two miles of the towne of Pemsey or within two miles of the towne of Hastings in the said County vpon paine to forfeit for euery load of Wood so to be imploied or conuerted into coale or other fuell for the making of yron or yron mettall in any yron mill furnace or hammer as aforesaid xl sÌ„ to the Qu. and I. to be recouered by A.B.P.I. wherein no W.E.P.I. c. But this Act shall not extend to any Woods growing or to grow in any such parts of the Wields of Surrey Sussex or Kent within the said 22. miles of the said Citie of London and the riuer of Thames as is distant aboue 18. miles from the Citie of London and 8. miles from the sayd riuer of Thames St. 23. El. 5 And by the same statute it was moreouer ordained Oppression by new yron workes That no new yron works shal be erected within 22. miles of the said city of London nor within 14. miles of the foresaid riuer of Thames nor within 4. miles of the Downs aforesaid or of the said towns of PeÌ„sey Winchelsey Hastings or Rie vpon paine of an hundred pounds to be likewise recouered and emploied as is aforesaid But this act shal not extend to any woods or vnderwoods of Christopher Darrell growing or which shall grow in the parish of Newdigate And for the causes and reasons aforesaid by one other stat made An. 27. St. 27. El. 1 El. it was further enacted That no person or persons shall make erect build or new set vp at or in any place within the counties of Sussex Surry or Kent or any of them any manner of yron mils furnace finary or bloomary for the making or working of any maner of yron or yron mettall other then either vpon such old former baies or pennes whereupon hath lately bin or at the time of the new erection shal be then standing some yron mils surnace or hammer or els in and vpon such lands as the party or parties so erecting any such inteÌ„ded new worke shall continually furnish the same with sufficient supply of his or their owne wood standing and growing vpon his or their owne soile or land being to him or them in fée simple fée taile or for terme of life or liues without impeachmeÌ„t of wast at the least and not otherwise Nor shal conuert or imploy or cause to be conuerted to coales or other fuel for the making or working of yron or yron mettall in or about any yron mils furnaces hammers finary forge or blomarie the body or bodies of any sound timber trée or trées apt for the making of good sufficient cleft wares or sawing timber of Oke Ash or Elme growing of the breadth or bignesse of one foot square at the stub or any part of the same body or bodies of any such trée or trées vpon paine of forfeiture for euery yron mill furnace forge finarie or bloomarie made erected builded or set vp contrary to the tenor and true meaning of this act thrée hundred pounds and for euery body of such timber trée so imploied or conuerted to coale or fuell for the making or working of yron as is aforesaid xl sÌ„ to the Q. and I. to be recouered by A.B.P. or I. wherein no W.E.P. c. Prouided alwaies that it shall and may be lawfull to for the owners of such trées the bodies whereof haue béene or shal be from time to time conuerted and imployed to or for any maner of timber or cleft ware within the wields of Sussex Surrey or Kent or any of them the same not being within 18. miles of the city of London or 8. myles of the riuer of Thames or 4. myles of the townes of Rye Winchelsey or within 3. myles of Hastings or within 4. myles of the foot of the Hils called the Downes betwéene Arundel Pemsey in the county of Sussex aforesaid or any of theÌ„ to imploy the tops and offals of all such trées to or for coales or other fuell seruing to or for yron works at their owne wils and pleasures This statute or any other notwithstanding Oppression by Brewers 24 If any Ale or Béere brewer do sell or take for any barrell kilderkin St. 23. H. 8. 4 or firkin of ale or béere aboue such prices as shal be assessed by the Iust of peace of the shire or by the mayor shirife or head officer of the city borough or towne corporat where the said brewer doth dwell this is an oppression of al those that do buy the same ale béere and therefore by the stat of An. 23. H. 8. the offendor shall forfeit for euery barrell so sold 6. sÌ„ for euery kilderkin 3. sÌ„ 4. d. for euery firkin 2. sÌ„ for euery lesse vessell xij d. and for a greater then a barrell x. sÌ„ to the K. and I. Oppression of Coopers by Brewers And if any Brewer which breweth béere or ale to sell St. 23. H. 8. 4 shal by himselfe or any other to his vse occupy the mysterie of Coopers or make any barrels kilderkins firkins or other vessell of wood wherein to put his béere or ale this is an oppression of Coopers and by the said stat of An. 23. H. 8. the offendor shal forf for euery vessell to the K. and I. 3. sÌ„ 4. d. But a brewer may kéepe a Cooper to bind hoope pinne and
against the possessor of them to bring them into the same Court. And so the King shall haue the benefite of an action of trespasse Forfeiture of a trespasse which the partie attainted might haue had against the other for those goodes wrongfully taken or holden away But if he that was attainted were beaten or mayhemed by another the King shall not haue an action of trespasse of battery 29. As p. 63 30. Ed. 3. 4 appeale of mayheme or other remedy against that partie which did the foresaid iniurie to the person attainted for that the money to be recouered by the action of trespasse is reduced to no certaintie And if money be owing to a man by obligation or simple contract Forfeiture of a debt and after he to whome the money is payable is attainted of treason or felonie Fi. Cor. 343. that obligation and duetie shall be forfeited to the King And if one man or more be bound by obligation to two men or more for the paiment of a summe of money or any other dutie Ioynt debt forfeited and one of the Obligées is outlawed or attainted of treason or felonie the King shall haue the whole Obligation and the money or dutie arising or payable thereby 19. H. 6. 47. 28. H. 8. Dy. 30. and the King or he to whom the King will giue the same debt shall haue an action in his owne name to recouer it which action shall bée maintainable though there be variance betweene the action and the specialtie 50. As p. 5 28. Ed. 3. 92 And in like sort if a man be Receiuer to another of his money An account forfeited and hee to whom he is receiuer be attainted of Treason or Felonie after office found thereof the King may haue a Scire facias against the Receiuer to receiue this money and by that meanes the King shall haue the benefit of the action of account which the partie attainted might haue had Forfeitiâ—g of an interest And in some cases an offendor in treason or felonie shall forfeit an interest in lands whereof he himselfe neuer had or could haue possession but an authoritie to dispose As if hée that hath the reuersion of lands in fée simple whereof another hath the possession for the terme of yeares 14. El. Dy. 309 doth graunt and assure this land to others to the vse of himselfe for terme of his life and after his decease to the vse of the Executors and Assignes of the grauntor for the terme of twentie yeares next after the death of the grauntor the remainder ouer in taile and after the grantor is attainted of treason by Act of Parliament and all his lands tenements goods and cattels which he had to his owne proper vse were forfeited to the King and vested in his actuall possession without office and the grauntor died intestate without assignement of this lease In this case the King shall haue this terme of twentie yeares as forfeit to him for it was an interest in the grauntor and did and might well remaine in him in expectancie notwithstanding his estate for the terme of his life and if the grauntors executors should haue had this lease they must not haue enioyed it to their owne vse but as assets in their hands And though the King shall haue such goods The King shall not pay the attainted persons debts debts money due vpon accounts and interest in lands as were due to the partie attainted of treason Fi. Cor. 317 334. or felonie yet he shall not pay such debts as the said person attainted did owe. 11 As in the cases aforesaid and some others a person attainted may forfeit goods debts and rights whereof he hath no possession but onely an action or title so in some other cases hee may forfeit goods whereof he hath no propertie but onely a possession As if a man deliuer money out of a bagge Forfeiting of goods wherein the offendor hath no propertie or corne out of a sacke to another to kéepe and to restore againe when the owner will require it if the partie to whom the money or corne was deliuered be attainted of Treason or felonie the money or corne shal be forfeited to the King and the partie who deliuered the same hath no remedie to recouer it for the first owner who deliuered it cannot prooue that it was his money when it was out of a bagge or that it was his corne when it was out of a sacke for that one sort of money cannot be knowne from another nor one sort of corne from another Fi. Cor. 317 3â—3 But if the money were deliuered in a bagge or the corne in a sacke then the owner that deliuered it may come vnto the Iustices before whom the offendor is attainted and shewe the deliuerie of it and signifie that it was to be restored vpon his request whereof the Iustices shal enquire by an Enquest of office and if his suggestion be found to bée true hee shall haue his money or corne againe But if the money or other thing deliuered by the owner be conuerted to another commoditie then the law is otherwise as if a man deliuer money to another to buy wooll or some such other commoditie and to worke it lay it vp or to kéepe it in his house Fitz. Cor. 334. and the partie to whom the money is deliuered doth buy wooll or c. and bringeth it to his owne house and then is attainted of Treason or Felonie the King shall haue the wooll or c. as forfeit and the partie who deliuered the mony is without remedie to recouer his money or the wooll or c. for though hée might haue had an action of Account against the partie to whom hee deliuered his money if he had liued and remained vnattainted yet hée shall haue no action or remedie against the King Forf for default of pursuit 12 If a man doe steale goods at diuers times from seuerall men and he is attainted at the suit of one of them for the goods stolne from him 44. E. 3. 44. but is not attainted at the suit of the others by this attainder the felon shall forfeit to the King not onely his owne goods but also the goods stolne from those other at whose suit hée was not attainted though hee had no propertie but only a possession in those goods for a felon hath no propertie in goods stolne A felon hath no property in goods stolne but it doth alwayes remaine in the right owner which propertie in this case for default of pursuing the felon is forfeited to the King Forf of other mens goods his owne 13 In like sort if a man doe steale goods from another Fi. Cor. 318 and before his attainder hée doth kill himselfe hée shall forfeit to the King not onely his owne goods but also the goods which hée did steale from that other though hée had no propertie but
leases for the terme of his owne or another persons life of lands T. for life And because tenant in taile is in diuers respects but tenant for the terme of his owne life T. in tayle of his lands intailed therefore if he commit Petit Treason or Felonie he shall forfeit his said intailed lands but for terme of his owne life And he that hath land in another right shal forfeit for high Treason petit Treason Murder or other felony no longer or greater estate than he hath in the same lands as a man seised in the right of his wife of laÌ„ds T. in the right of his wife or church or in the right of his church Fitz. Forf 13. shal forfeit no further estate in the same lands but during his owne estate therein as it doth appeare not onely by the rules of the common lawes but the same is also confirmed by the Statute of 5. Ed. 6. 11. hereafter rehearsed The forf of lands in tayle 26 By the common law Tenant in tayle beeing attainted of high Treason should haue forfeited the lands whereof hée was so seised of an estate in tayle but onely for the terme of his owne life and the same after his death should haue discended to his heire But now by the Statute made Anno 26. H. 8. and Anno 5. Ed. 6. St. 26. H. 8. 16. St. 5. E. 6. 11 it is ordained That euerie offendor and offendors being hereafter lawfully conuict of any manner of high Treason by presentment confession verdict or Proces of Outlawrie according to the due course and custome of the lawes of this Realme shall loose and forfeit to the King his heires and successors all such lands tenements and hereditaments which any such offendor or offendors shal haue of any estate of inheritance in his own right in vse or possession by any right title or meanes within this realme of England or elsewhere within any the Kings dominions at the time of any such Treasons committed or at any time after 16. El. Dyer 332. As if the King giue land to the husband and wife and the heires males of their two bodies lawfully begotten the remainder thereof to the heires males of the body of the husband lawfully begotten reseruing the reuersion to himselfe and the husband and wife haue issue a sonne and the husband committeth high Treason is attainted thereof and executed and this attainder is confirmed by Act of Parliament and all the offendors lands bée giuen to the King Sauing to all Straungers their right other than to the Donor in Tayle and his heirs In this case after the death of the wife the King shall haue the land for that by reason of the fathers attainder of Treason the estate Taile was forfeyted and extinguished by force of the sayd Statutes of Anno 26. H. 8. and Anno 5. Edw. 6. and the bloud corrupt An estate taile forfeited and extinguished and the heirs disabled for that in his lineall conueyance of his discent to the land hée must deriue himselfe heire as well to his father as to his mother Br. Done 61 Co. li. 1. 103 And in like sort if a man seised of lands in fée simple maketh a feoffement thereof to certaine persons to the vse of his wife for the terme of her life the remainder thereof to the vse of the heires of his owne bodie lawfully begotten after the feoffor hath issue a sonne and is attainted of high Treason and executed In this case his sonne shall not inherit this land as heire to his father whose bloud was corrupt by his attainder but the land shall be forfeited to the King by the foresayd Statute of 26. H. 8. And as tenant in taile by committing of high Treason shall by force of the foresayd Statutes of 26. H. 8. 5. Ed. 6. forfeit those lands wherof he hath the possession reuersion or remainder in tayle so shall hée likewise forfeit to the King by committing of high Treason those lands whereunto hée hath but a right in taile Pl. Com. 547. As if the King giue lands to a man Forf of a right in tayle and to the heires males of his bodie lawfully begotten reseruing the reuersion to himselfe and the tenant in tayle hath issue a sonne and dyeth and the sonne doth enter and make a feoffement in fée to a stranger of the same land and then hath issue a sonne and committeth high Treason and is attainted thereof this land shall bée forfeited to the King for by this feoffement made by tenant in tayle to a straunger there passed none other estate from the same tenant in tayle but only an estate for the terme of his owne life and so the tayle and the right of the tayle remained in the tenant in tayle and by his attainder the estate in tayle is extinguished in the Kings reuersion in fée simple And the King shall bee sayd rather to haue this land reuerted vnto him as if all the issue of tenant in tayle were dead than by forfeiture for the words of the Statute of 26. H. 8. be All persons attainted of Treason shall loose and forfeit to the King his heires and successors all lands and tenements which such offendor shall haue of any estate of inheritance at the time of the Treason committed or at any time after Sauing to all others and their heires other than the offendors in Treason their heires and successors all their rights and possessions c. which they had at the day of the Treason committed or after And by these generall words That they shall loose and forfeit all lands and tenements which they haue of any estate of inheritance and by excluding the heire in the Sauing lands tayled shall bée forfeited and the lands in this case cannot be aptly termed to be forfeited to the King and his heires where hée had the fée simple before but are rather to be sayd reuerted to the King the tenant in tayle dying without any issue which by his attainder of Treason and the corruption of his blood Co. li. 7. 33. could inherit this land And if the King by his letters Patents vnder the great Seale doe create an Earle Forf of name or title of dignitie intailed and giue him the title and honour of an Earledome to him and the heires males of his body begotten and the grantée hath issue two sonnes by seuerall women and then dyeth and his eldest sonne doth enioy the same Earledome and after committeth Treason by leuying of warre in the Realme against the King and is attainted thereof and then dyeth without issue of his bodie begotten by this attainder the same shal be forf to the K. and not discend to the brother of the half blood nor to his heirs for this Earldom and name of dignity may be intailed according to the stat of W. 2. St. 13. E. 1. 1 De donis conditionalibê° for that it concerneth land must
condemned and which be fugitiue wheresoeuer they bée found And if they haue any freehold it shall bée forthwith seised into the Kings hands and the King shall haue the profits thereof by the space of a yeare and a day and the land shall bée wasted and destroyed in the houses woods and gardens and in all things belonging to the same except men of certaine places priuiledged And after the King hath had the yeare day and wast the land shall bée restored to the chiefe Lord of the same fee vnlesse that before he redéeme the same yeare day and wast of the King by the paiment of a fine But there is a custome in the Countie of Glocester that after a yeare and a day the lands and tenements of Felons in that Shire shall reuert and be restored to the next heire to whom they ought to haue discended if the felonie had not béene committed And in Kent in Gauelkind the father to the bough the sonne to the plough there all the heires males shall diuide their inheritance and likewise women but women shall not make partition with men 33 By force of which stat of Praerogatiua Regis The yere day and wast of lands of what title shal be forfeited euer sithence that time the King hath had all the thrée things aforesaid viz. the yeare the day and the wast of the lands of him which was attainted of felonie as one of the prerogatiues annexed to the Crowne in all cases where the felon had such an estate in his land Bracton de Corona cap. 13. that he might forfeit the same after his death and that hee himselfe might lawfully haue made wast in the same without being impeached therefore And therefore if the felon be but tenant for the terme of life or for the terme of yeares of lands the king shall not haue the yeare day and wast of them after the felons death for then he might wast another mans inheritance But if a man that is seised of lands in the right of his wife do commit felonie and is attainted thereof the king shall haue the profits of the land during the husbands life if the wife doe liue so long Fitz. Cor. 327. And some doe affirme that the king shall haue the yeare day and wast of the said wiues lands after the felons death because the felon during his life might haue committed wast therein and for that the felon had such an estate in his wiues lands that by the common law he might in his life haue made alienation of them and driuen his wife to her Cuiin vita to haue recouered them But that séemeth to be helped if any such law were before by the Statute of Anno 32. H. 8. where it is ordained That no fine feoffement or other act made suffered St. 32. H. 8. 28 or done by the husband onely of any lands tenements or other hereditaments being the inheritance or fréehold of his wife during the couerture betwéene them shall in any wise be or make any discontinuance thereof or be preiudiciall or hurtfull to the said wife or her heires or to such as shall haue title interest or right to the same by the death of such wife But the same wife or her heires and such other to whom such right shall appertaine after her decease shall and may then lawfully enter into such lands c. according to their rights and titles therein notwithstanding such fine feoffement or other act fines leuied by the husband and wife whereunto the said wife is partie and priuie only except By which Statute the wife after the death of her husband may enter into her owne land notwithstanding any attainder forfeiture or other act done by her husband No yere day and wast of lands holden by ioynt purchase 34 A man seised of land in fée simple holden of a common person did infeoffe thereof the husband and wife and their heires the husband committed felonie and was attainted thereof the King seised the land into his hands for his yere day and wast and after the Kings said terme expired 4. E. 3. 47. the Lord of the fée of whom the same land was holden did sue in the Chauncerie to haue the same land restored to him to whom by warrant the Escheator did deliuer the same lend vpon whose possession the wife of the felon attainted did enter and the said Lord of the fée reentred vpon her whereupon the sayd woman brought an Assise against the sayd Lord and recouered the land Because the fée simple of the same land being in the wife by reason of the ioynt purchase with her husband the K. ought not to haue had the yeare and day after the felons death nor the Lord of the fée the land after by Escheat 35 If tenant in tayle Tenant in tayle generall or speciall or tenant in franke mariage of land do commit petit Treason or Felonie and is attainted thereof and executed the King after his death shall neither haue the yeare day or wast in the felons land nor the Lord of the fée shall haue the land by Escheat but after the felons death the same land shall discend reuert or remaine secundum formam doni to the next heire in tayle of the felon or to him in the reuersion or remainder thereof for in this case the felon was in effect but tenant for the terme of his owne life and thereby could not forfeit a greater estate in his land than that which he had And in in like sort if he that hath land by fresh disseisin or is tenant in fee farme of land A disseiser Tenant in fée farme A mortgagée vpon condition to pay the vttermost yearely value thereof or hath land in Mortgage to be redeemed by the Mortgager vpon condition of payment of money or other condition doth commit petit treason or felonie and is attainted thereof the King shall not haue the yeare day and wast for that would tend to the preiudice of others not partie to the offence who haue or may haue a better right and title to the same lands than the felon attainted Fi. Cor. 310 36 If a man that is owner of land in antient demesne Tenant in antient demesne which hee may sell without consent of the Lord doe commit petit Treason or Felonie and is attainted thereof the King shall haue the yeare day and wast notwithstanding that he hath vsed to surrender the land into the Lords hands by a rod in the Court vpon euerie alienation thereof But if he be owner of the land in auntient demesne of a base tenure it is otherwise Fitz. Cor. 290. 37 A man that tooke a Church for felonie escaped and the towne pursued The yere day wast without attainder and killed him because he would not yéeld himselfe and this matter was presented before the Iustices in Eyre and they adiudged that his goods and the profits of his lands
shal be allowed but once 6 Killing a man by chaunce or in his owne defence Committing of petite Larcenie 7 Offendors in Treason 8 Confession of the Felony 9 Clergie taken away by Statute A Cutpurse 10 Forging of Writings 11 A committer of Buggerie 12 Counterfeiting to be Egiptians 13 Relieuing of a Iesuit or a Priest 14 Committers of Rape or Burglary 15 Taking a woman against her will 16 Practising of Coniuration or Witchcraft 17 Stabbing or thrusting to death 18 A Recusant not abiuring or returning 19 Abiuration of a Popish Recusant 20 A Souldier departing from his Captaine 21 Wandering Souldiers and Mariners 22 Taking away any person in Cumberland 23 Committing of Murther Poyson Burglarie 24 Stealing of a Horse 25 Stealing of goods in one Countie and carrying them into another 26 Robbing of houses booths tents 27 Robbing of a house in the day 28 Commandement or counsell of Felony 29 A Lord of the parliament shall haue the benefite of his Clergie 30 The Indictment must be according to the Statute The words of the Indictment must be proued 31 When Clergie shall be demaunded Clergie demaunded before verdict 32 Denying to be a Clarke and yet is Whether Clergie be allowable without request 33 Who shal allow of Clergy 34 A Felon readeth vnder the Gallowes 35 To what vse the Ordinarie is imployed Clerkes within orders shall be vsed as others be 36 What is reading as a Clerke 37 The Ordinaries attendance requisit Contention who is Ordinarie 38 A Priest shall haue no fetters 39 Bigamus shall haue his Clergie 40 Another time conuict How the conuict shall be marked How offendors within orders shal be vsed 41 Certificat into the K. Bench of Outlawries Attainders and Conuictions 42 A Clarke deliuered to the Ordinarie Clergy allowed without deliuery to the Ordinary The Kings Pardon Fol. 218. 1 The Kings oath at his Coronation touching pardons 2 None but the King can pardon Felonies 3 In what cases the King may graunt pardon 4 Non obstante in a pardon The Suggestion shall bee comprised in the pardon 5 The offences shal be specified in the pardon 6 Suit for an approuers pardon 7 Pardon of the Felony but not of the attainder 8 Pardon of the attainder but not of the Felony 9 A ioynt pardon to two or three 10 A graunt to be quit of escapes of Felony 11 A generall pardon by Parliament 12 The Kings pardon must be shewed vnder Seale A writ of the allowance of the Kings pardon 13 He that hath a Pardon shall find sureties of his good abearing 14 The good behauior broken after pardon 15 A Charter of Pardon must agree with the indictment 16 The pardon and allowance entred vpon the appeale 17 The Kings pardon in plea in appeale 18 Vpon a Pardon a Scire facias awarded against an Appellant 19 Nonsute doth not aid an appellee that is outlawed 20 The Kings Protection 21 Pardon of a Felony before it be committed Standing mute or answering indirectly Fol. 222. 1 Standing mute whereupon paine fort dure doth ensue 2 Felons refusing lawfull triall 3 Pennance onely vpon an Indictment 4 Pennance for Pyracie 5 No pennance for High Treason 6 No pennance for a man before attainted 7 Standing mute after coÌ„fession 8 Inquire of him that standeth mute 9 The iudgement in pennance Judgement and Execution Fol. 224. 1 Iudgement where the prisoner is acquited 2 The iudgement of a man attainted of high Treason 3 The iudgement of a woman attainted of Treason 4 The iudgement of a man attainted of petit Treason 5 The iudgement of a woman attainted of Felony 6 The iudgement in misprision of Treason 7 Attainder of Treason by the common Law 8 The iudgement of pennance viz. of paine for t dure 9 Iudgement in Felony by Iustices of Nisi prius 10 Iudgement by new Iustices 11 Iudgement in petit Larcenie 12 The staying of a womans execution being with child 13 A man hanged falleth down before he be dead Forfeiture Fol. 226. 1 A Felon shall forfeit lands and goods 2 Forfeiture of goods Flying for the Felony 3 The Accessarie fled for the Felony 4 Forfeiture for petite Larcenie 5 Forfeiture for flying before arrest Forfeiture without Attainder 6 Forfeiture vpon the exigent awarded 7 No forfeiture to the accessarie vntill the principall be attainted 8 Forâ—eiture notwithstanding apparance and pleading 9 Forfeiture of a Clarke conuict Of him that committeth Homicide by misaduenture Of him that killeth in his owne defence Of Felo de se Of him that doth stand mute 10 Forfeiture of a right or action No payment of Attainteds debts 11 Forfeiting of goods wherin the offendor hath no propertie 12 A Felon attainted at the suit of one where moe were to sue 13 Forfeiture of other mens goods and his owne 14 The forfeiture where a woman killeth her husband 15 An Executor shall not forfeit his Testators goods 16 The forfeiture of goods holden ioyntly 17 Confiscation of goods Confiscation of his own goods by disclaymer 18 Confiscation by disclaimer in the goods of others 19 Confiscation of goods left out of an Appeale 20 Confiscation of goods by a false Appeale 21 A Waife and the seising thereof 22 The owner seiseth his goods waiued 23 Sildome waife but of stoln goods When waife of goods not stolne 24 No waife of goods stolne from an alien 25 Forfeiture of lands Tenant for yeares Tenant for life or in taile Tenant in the right of his wife or Church 26 Forfeiture of Landes intailed 27 The forfeiture of landes in fee simple The forfeiture of an Annuitie 28 The forfeiture of Title to land 29 The forfeiture of Euidence 30 Forfeiture without attainder 31 Forfeiture of the yeare day and wast 32 By what meanes the King came by the yeare day and wast 33 The yeare day and wast of lands of what title shall be forfeit 34 No yeare day and wast of lands holden by ioint purchase 35 Whether any Forfeiture shall bee made by Tenant in taile A Disseisor Tenant in fee farme A Mortgage 36 Forfeiture of tenant in auncient demesne 37 The yeare day and wast forfeited without attainder 38 No yeare day and wast of a Clarke conuict Lands of small value 39 When the king shall haue the yeare day and wast 40 The yeare day and wast not grauntable from the Crowne 41 What goods of Felons the king shall haue 42 From what time the forfeiture of lands shall haue relation 43 From what time the forfeiture of goods shall haue relation 44 who shall seise and keepe Felons goods and when 45 The goods of an offendor shall not bee seised vntill he be attainted 46 Who shall haue the custody of Felons goods 47 To whom the forfeiture of lands of a person attainted of high Treason shall accrue 48 Who shall haue the forfeiture in petite Treason and Felonie 49 The Lords remedy for lands escheated vnto him 50 The heires remedie for lands escheated vnto his auncestor 51 Where the
same in a writ of Maintenance brought against him but he cannot retaine or intreat a man learned in the law to be of counsell with the principall partie nor meddle further in that cause than to sée the mainprise performed and himselfe discharged Maintenance in respect of his interest in the land 24 Euerie person that hath any interest in land may meddle and maintain him who is impleaded for the same land and not bee punished therefore in a writ of Maintenance As if tenant for terme of life or in taile of land bée impleaded for the same land or any part thereof Bro. Maint 53. he in the reuersion or remainder thereof may at his owne charges maintaine him in that suit for the safegard of his owne estate for it is in a sort his owne case and the defence of it is to his owne benefit and the euiction to his owne disheritance But this maintenance must be after tenant for terme of life hath atturned vnto him in the reuersion for i◠he maintaine the suit before it is punishable in him 9. H. 6. 64. And so it is if a man being seised of land hath issue a daughter who is maried to another if the father in law be impleaded of that land in a reall action the sonne in law may maintaine him at his owne charges for that by possibilitie that land may after the decease of his father in law descend to his wife and so come to him in her right But if the daughter dye without issue of her bodie begotten by the said husband before the said suit commenced 14. H. 7. 2. 6. E. 4. 5. 19. E. 4. 3. then the sonne in law cannot maintaine the father in law in that suit Neither can hee maintaine him during the life of his wife if an action of Debt couenant account or any other personall action be brought against him for he is neither to take benefit or losse by any of those suits 6. E. 4. 2. 39. H. 6. 20. And if a man seised of land make a lease for certaine yeares of the same and after a suit is commenced betwéene the said lessée for yeares and a stranger touching the same land or any part thereof the lessor may giue euidence for the lessée vpon the triall of the cause in question or otherwise may maintaine him in that suit at his owne charges for it tendeth to his owne priuat benefit or losse And in some case a man may maintaine a suit lawfully though he be neither heire to the land nor in possession reuersion Maintenance in respect of his possibilitie or remainder thereof As if a man being seised of land 9. H. 6. 64. doe make a lease thereof to another for the terme of the life of the lessee and after doth grant to a straunger that if the said tenant for terme of life doe dye during the same lessors life that then the same stranger shall haue and enioy the same land for the terme of xx yeares after the death of the same tenant for life if in this case the tenant for life be impleaded for this land the same stranger may maintaine him for the sauing of his owne estate for yeares and yet he hath no certaintie but a possibilitie of a terme for yeares which peraduenture will neuer chance And likewise in some other case a man may maintaine a suit lawfully though he be neither in possession reuersion remainder or possibilitie of the thing in question Maintenance in respect of his warranty As if a man be seised of a rent going out of another persons land 11. H. 6. 49. to him and to his heires and by his déed doth graunt the same to another and to his heirs with clause of warrantie and the tenant of the land out of the which this rent is issuing doth atturne to the grauntée of this rent if after the grauntée be impleaded of this rent vpon tryall of the issue the grantor may come into the Court and shew to the Iurors such euidence as he hath to prooue the title of this rent and it is lawfull maintenance and not punishable in him though he was neither called into the Court by voucher to warrantie or by Warrantia Chartae And so might he haue done if he had beene called to warrantie by any of the meanes aforesaid vpon a warrantie made of land or rent for it is to preserue himselfe out of daunger and from recompencing in value of that whereof before he had made warrantie 25 As it is in lands and leases so is it in rents goods and debts Maintenance in respect of his rent for euerie person that hath interest in them may meddle and maintaine and defend him who is impleaded or prosecuted by suit or doth implead or prosecute by suit any other for any matter or cause concerning him or whereupon hee doth depend so that the same suit doth tend to impeach preiudice or trouble his estate therein or may redound to his benefit or profit or may be a meane thereof 9. H. 6. 64. As if a man haue a rent charge in fée out of certaine lands and another man hath in custodie a boxe of writings concerning the same rent and after hée that hath the rent doth graunt it to a stranger and his heires to the which graunt the tenant of the land charged doth atturne and moreouer the grantor of that rent charge doth graunt to the assignee of the same that if he can recouer the same boxe of writings that then the same assignee shall haue them If after this graunt the grauntor doth pursue a writ of Detinue against him that hath the custodie of this boxe of writings he to whom the same rēt charge was graunted may lawfully maintaine him in that suit for that by promise he is to haue the same boxe of writings if it be recouered for the preseruation of his estate in the said rent charge 11. H. 6. 47. And a Lord may maintaine his tenant if he be impleaded for his freehold A Lord may maintaine his tenant in respect of his rent and seruices that he is to receiue and haue of him And so it was before the Statute of Vses made anno 27. H. 8. if a man had made a feoffement of land to others to his owne vse the feoffor might maintaine the freehold tenant which held of his feoffees in respect of the vse which he hath in the rent and seruice of that tenant 15. H. 7. 2. 26 And the same law is touching debt As if A. do owe vnto B. xx l. and C. doe owe to A. xx l. due by Obligation Maintenance in respect of debt and A. will deliuer vnto B. the same Obligation in satisfaction of the xx l. which he doth owe him In this case B. may sue an Action of Debt vpon this Obligation against C. in the name of A. and retaine an Attourney and learned counsell and pursue and
30. St. 18. El. 13. an 18. El. it was established That euery such person which shal be Atturney for any other person or persons being demandant or plaintife tenāt or defendāt in any actiō or suit cōmenced in any of the K. courts of record at West plead to an issue in the same shal deliuer or cause to be deliuered his lawfull warrant of Atturney to be entred of record for euery of the said actions or suits wherin he is named an Atturney to the officer or his deputy ordained for the receit or entring therof in the same terme whē the issue is entred of record in the said court or before vpon paine of forf of x. l. for euery default for not deliuery of the said warrāt the one moity to the K. his heirs successors the other to such officer to whō or in whose office the same warrāt shold be deliuered entred or filed to be rec by A. of det B. P. or I. wherin no W. E. P. c. also he shal suffer such imprisonmēt as by the discretiō of the I. of the Court where any such default shall be made shall be thought good Fit N. B. 9 6 If a man make an Atturney in a real action brought against him Deceit by an Atturney after by couin agréed vpon betwéene the demandant and the said Atturney the same Atturney maketh default whereby the tenant doth loose his land then the same tenant who lost his land may haue a writ of Deceit against the Atturney And so it is if a man bring an action of Trespasse against two others Register fo 113. Fit N. B. 96. and the plaintife and an Atturney by couin agréed vpon betwéene them doe cause two straungers not parties to the writ to come into the court and to say that they be the same two defendants named in the writ and that they do constitute the same man to be their Atturney in that suit wherupon the same Atturney as Atturney to the defendants named in the writ do plead to an issue and after suffer the enquest to passe by his default by which meanes the plaintife doth recouer against the defendant in this case they who be indéed defendants and against whom the same action of Trespasse was brought may haue a writ of Deceit against the same Atturney that appeared as Atturney for them and shall recouer their dammages 10. Ed. 4. 9. 20. Eliz. Dyer 367. If an Atturney be informed by his client to plead a false plea which he cannot in conscience plead he may procure this Entrie to bée made Quod non fuit veracitér informatus ideo nihil c. to defend him in a writ of Deceit brought against him by his said client If an Atturney do sue forth a Capias where there was no originall writ before 20. H. 6. 39. he shal be committed to prison and thrust out of his place in that and all other Courts 4 As the law doth punish her Officers who do practise or commit any deceit or fraud in stead of truth in place of iustice The law reiecteth fraudulent acts so doth she renounce and condemne all acts of greatest importance if they be intermixt with guile and falshood For though Iudiciall acts as Fines Recoueries Warranties deedes inrolled c. being of their owne natures iust and lawfull and meanes to settle titles to appease controuersies and to yeeld each person his due bee therefore greatly respected and fauoured in her sight yet if any of them be deuised or executed by couin or to deceiue then she doth vtterly reiect them and adiudge them void Co. li. 3. 77. As a man was Lord of the Mannor of D. wherein there was a tenant which had some parcels of freehold land in fee simple the Lord demised certaine lands parcell of the demesnes of his said Mannor to the said freeholder for xxj yeares reseruing certaine rent and demised some other lands parcell of the said demesnes to the same fréeholder at will reseruing another rent and graunted by copie of Court roll certaine other lands parcell of the same Mannor to the sayd freeholder for the terme of life according to the custome of the sayd Mannour reseruing a third rent And after the same freeholder demised all the sayd lands which hee held by lease for yeares at will and by copie in D. to a straunger for the terme of life and then the same freeholder leuied a fine with proclamations of so many messuages so many acres of land medow pasture c. as he had by lease for yeres at will by copie of Court roll of his owne inheritance in D. by couin fraud to barre the lord of his inheritance All the proclamations were made and the fiue yeres were past the same fréeholder continued in possession of the land which was graunted to him by lease for yeres at will and by copie and paid to the Lord yerely his seuerall rents for the same And after the stranger to whom the fréeholder made the lease for life died and the lease which the Lord made to the fréeholder for xxj yeares expired And then the same freeholder claimed the inheritance of all the land which the Lord demised vnto him for yeares at will by copie intending to barre the Lord thereof by force of the fine with proclamations the fiue yeares past But this fine was adiudged void against the Lord and that it did not barre him to clayme and enter vpon his land for that it was leuied by him who had but estate in those lands for yéeres at will or by copy of court Roll and that neither had nor could pretend any title to the inheritance of the land but only by fraud practised the disheritance of the leassor And whereas the meaning of the makers of the statute of Anno 4. H. 7. St. 4. H. 7. 24 was as it may appeare by the preamble of the same that fines ought to be of the greatest strength to auoid strifes and debates when the lessée for yeares at will or copyholder shall make an assurance by fraud and couin A fine leuied of land to defraud the right owner therof to the intent a fine may be leuied to disherit the right owner of his land this is not a meanes to auoid or appease strife but to begin it where none was before and therefore the same statute did not intend to ratifie such an estate begun by deceit And further the meaning of the makers of the said statute was not That he who could not leuie a fine of this land in respect of the debilitie of his estate therin should be enabled by his owne practise and deceit to leuie a fine therof to barre him who had a lawfull title therein and a right to leuie a fine thereof And the same lessée for yeares tenant at will and copyholder contriued his fraud in so secret manner that by his couert practise he depriued his
lessor of the remedy which the said statute of Anno 4. H. 7. did giue him viz. to make his entry or to pursue his action within fiue yeares which he could not do being ignorant of the lease for life which his tenant had made of this land to a stranger and also conceiuing that the lessée hauing land of his owne fée simple in the same towne he leuied a fine of that land which hee might lawfully doe And the deceit and fraud in this case is the more odious because it was practised by the lessée against his lessor and by the copyholder against his Lord who is by the law bound to do fealty to the lessor and Lord which is a bond of confidence and a linke of trust And if a man seised of land in fée Fit Fines 120. do make a lease to another thereof for terme of life and the lessée for life doth leuie a fine therof to a stranger he in the reuersion may enter into the same land for a forfeiture and put forth the conusée in the fine and auoid the fine for it was leuied by deceit to defraud him of his reuersion If a fine be leuied of lands to secret vses to deceiue the purchasor of the same land it may be auerred to be leuied by fraud and so by the statute of 27. El. 4. auoided St. 27. Eli. 4. And so if a fine be leuied vpon an vsurious contract and that be auerred the same fine shal be void by the stat of 13. Eliz. 8. St. 13. Eli. 8 A fine leuied of ancient demesne lands to defraud the Lord. 5 The law is as prouident to protect mens seigniories rents and seruices from euiction by deceit as she is their lands and tenements knowing that a fine in some cases leuied by couin of the one may be as preiudiciall to his inheritance as of the other hath therefore ordained seuerall remedies to redresse seuerall wrongs as if a man seised of lands in ancient demesne do leuy a fine thereof at the common law to another this is a deceit to the lord of that manor of whom the said lands be holden 21. Ed. 3. 20 Fit Nat. Br. 98. therefore he may haue a writ of Deceit against the cognisor and the tenant of the lord thereby auoid the said fine and then he that leuied the said fine shall be restored to the possession and the title which he had before in the same land and also the same land shall returne and become auncient demesne as it was before for that the said fine shal be vtterly void 21. Ed. 3. 56. And he that is lord of a manor of auncient demesne but for the terme of his life only may maintaine this writ of Deceit And so may he in reuersion if tenant for the terme of life doe not bring it during his life and either of them by his said writ may auoid the same fine for by the leuying of a fine at the common law of lands in ancient demesne 8. E. 4. 6. or by recouerie of them at the common law the same lands do become Franke fée and pleadable at the common law and so the lord should be deceiued of his right and loose his seigniorie in them And the writ of Deceit will auoid the said fine or recouerie because the fine was leuied and the recouerie was suffered coram non iudice in deceit of the Lord viz. not before that Iudge nor in that Court where they ought to haue béene 17. Ed. 3. 31. 7. H. 4. 44. 8. H. 4. 23. Fitz. Na. Br. 98. But if a man seised of lands whereof parcell be auncient demesne and parcell Franke fée doe leuie a fine at the common law of both parcels in this case though the Lord of the auncient demesne doe by his writ of Deceit auoid the fine for so much as is ancient demesne yet the residue of those lands which be Franke fée shall continue in force for a fine leuied of them was no wrong or deceit to any 6 And the same law is where land is recouered by deceit A writ of Deceit to auoid a recouery as if one man do bring a Praecipe quod reddat against another and demaund certaine land by force whereof the tenant ought to be summoned to be before the Iustices at a certaine day and the shirife doth returne the tenant of the land against whom the said Praecipe is brought Fit Nat. Br. 97. summoned whereas in truth he was not summoned by which false returne and deceit of the shirife the demaundant doth vpon the Graund Cape recouer seisin of the land by default of the tenant in this case the tenant to whom this deceit is done 3. E. 3. 28. Fitz. Deceit 49. may after iudgemēt giuen for the demaundant haue a writ of Deceit against him that did recouer and against the shirife for his false return And by this writ of Deceit the tenant shal be restored to his land againe 18. E. 4. 11. so that it be brought during the life of the summoners viewers and pernors or any of them for if it bee not brought vntill all the summoners viewers and pernors be dead it will not lye for after the death of them the tenant shall not haue a writ of Deceit for proces shal be awarded against the summoners viewers and pernors to appeare in Court and by the examination of them it is to be tried whether the tenant was summoned or not 50. Ed. 3. 16. 8. H. 6. 1. Fitz. Deceit 48. Fitz. Deceit 32. 33. 34. 46 for the summons must be made by two summoners at the least and two viewers And if any of them did not their duty then the writ was not executed as it ought to haue béene and therefore the plaintife in the writ of Deceit ought to be restored But the K. shall haue the issues of the land in the meane time And if the demaundant who did recouer by the shirifes false returne do make a feoffement of the land then the writ of Deceit must be brought against the demaundant the feoffée and the shirife and if the demaundant that doth recouer 8. E. 3. 6. 10. Ed. 3. 43. the shirife also be both dead yet the writ of Deceit may be brought against the heire of the demaundant and the tenant of the land if the summoners viewers and pernors be liuing And if a man do lose his land by default in a Praecipe quod reddat Fit Nat. Br. 98. Fitz. Deceit 43. 80. whereby he was not summoned and then dieth his heire may haue a writ of Deceit as well as his auncestor and shall haue restitution and the vouchée The vouchée may haue a writ of Deceit where he doth loose by default if he were not summoned 7 And so it is if a man sue a Scire facias against another Deceit to auoid a recouerie vpon a Scire facias
As the law doth both condemne reiect fines and recoueries Warranties deuised by fraud which bée practised or put in execution by fraud or deceit so doth she renounce and make frustrate all sorts of warranties that be deuised or contriued vpon collusion or couin to defeat or defraud others of their iust lawfull titles for though warranties be much fauored in the law for that they be meanes to establish the title of those who be tenants of land in possession but yet if any of thē be vndertaken performed or mixed with fraud then it doth not only loose his fauor but also his force in law Co. lib. 5. 79 50. Ed. 3. 12. 43. E. 3. 7. As if land be giuen to the father for the terme of his life the remainder to his sonne heire apparant in taile and the father by couin agréement betwéene him and another to barre his sonne by a collaterall warranty of his remainder will make a lease of the same land to that other person who will make a feoffement in fée to a third person of the same land to whom the father will release with warranty and thē the father dieth the warranty doth discend vpon his sonne being of full age yet this warranty wil not barre the sonne of this land for the feoffement of the lessée for yéeres was a disseisin and the father was partaker of the offence an actor agréeing thereunto and though the release with warranty was made after the disseisin yet séeing the disseisin was made to that end the law doth adiudge the whole fact frō the beginning to be fraudulent the warranty to begin by disseisin so all that assurance to be void against the heire in taile And in like sort other warranties that do commence by disseisin be contriued to deceiue defeat the right heirs of their iust and lawfull titles 20. H. 6. 10. Regist f. 113 44. Ed. 3. 4. 12 If one do bring a Praecipe quod reddat against two other men Deceit by getting of a Protection and they do purchase a protectiō for one of thē suggesting that he is to go beyond the sea in the kings seruice whereas he doth not so but remaineth still in England and so hath done euer sithence his protection purchased by which meanes the demaundant is delayed of his suit in this case the same demaundant may haue a writ of Deceit against the said tenants for this deceit and delay and shall recouer his dammages Deceit by purchasing a writ to charge another 13 Whereas according to the course of the Chauncery Fit Nat. Br. 96. the king is to haue of euery person who doth bring against another an action of Debt of the summe of fortie pounds or more vj. s̄ viij d. for a fine and for an hundred markes vj. s̄ viij d. and so for euery hundred markes vj. s̄ viij d. and for euery Praecipe quod reddat brought of land to the yearely value of fiue markes vj. s. viij d. and so according to that rate vnlesse it be a writ of right patent If any other person doe purchase a writ in the Chauncerie in my name without my priuitie whereby I shall be charged to pay to the king for a fine any of the summes aforesaid I may haue an action of Deceit against him and recouer my dammages for this writ was obtained to put me to charges and thereby to deceiue me of so much Deceit for purchasing a writ in anothers name 14 If A. being patron of a Benefice Fitz. Na. Br. 96. Regist f. 112. 7. H. 6. 45. when the Church is void do present his Clerke to the Ordinary and B. doth disturbe him whereupon C. doth purchase a Quare impedit against B. in the name of A. returnable in the common pleas A. not knowing thereof and after doth cause the writ to be abated or A. to be nonsuit in that writ in this case A. may haue a writ of Deceit against the same C. and recouer his dammages Deceit for procuring of a suit And if B. doe procure C. to sue an action against A. whereby A. is vexed Fitz. Na. Br. 98. A. may haue a writ of Deceit against B. Deceit by acknowledging of a statute 15 If A. and B. doe come before the Mayor of the Staple Fitz. Na. Br. 105 100. Regist f. 115 or before any other Mayor of any Citie Borough or Towne hauing authority to take acknowledgement of debts and there A. doth acknowledge a statute to B. of an hundred pounds or c. in the name of C. and doth report himselfe to be C. where he is not so whereupon C. is troubled and this statute extended against him then the same C. may haue a writ of Deceit against the said A. and B. and shall recouer his dammages And so it is if another man will leuie a fine of my land in my name Deceit by doing of a iudiciall act in anothers name or confesse an action brought against me in my name or will enter into a voucher in my name 19. H. 6. 44. Regist f. 113 and confesse the demaundants action or will acknowledge a Recognizance or statute Marchant or other matter of Record in my name I haue no other remedie but by an action of Deceit But it is otherwise if he seale and deliuer an obligation in my name for I may plead that it is not my déed which I cannot doe against a Record Deceit by forging of a resignation 16 If a Notarie Fitz. Na. Br. 99. Regist f. 114 and other persons doe by agréement counterfeit the seale of any Parson or Vicar and forge letters of resignation of his Parsonage or Vicarage in the name of the same Parson or Vicar by which meanes he is remoued from the possession of the same Parsonage or Vicarage he may haue a writ of Deceit against the same forgers 20. H. 6. 36. 21. H. 7. 41. 16. Ed. 4. 9. 17 If a man doe bargaine with another to enfeoffe him of certaine lands within twenty daies Deceit by assuring of land to one man which was bargained to another or c. and after he doth enfeoffe a stranger of the same land the he with whom the bargaine was made and was deceiued therein may haue a writ of Deceit against him that so bargained and defeated him thereof And so it is if a man doe compound with another to purchase a mannor or certaine land for him and hée doth buy it for himselfe the partie may haue an action of Deceit against the same purchasor And in all cases where a man doth promise to doe a thing and he doth it falsely a writ of Deceit is maintainable against him Deceit by charging of land after sale as if a man doe promise to assure land to another and after he doth graunt a Rent charge or a common out of it or doth make a Lease for life
be supported and maintained with land to vphold the countenāce charge of the owner thereof And therfore this Earldome being by the K. giuen to the Earle the heires males of his body begotten is an inheritance which may discend from one heire male to an other and then by the speciall words of the before rehearsed Statute of 26. H. 8. and 5. Ed. 6. it shall be forfeited to the King by the said heires attainder of high treason for it was in the same heire an hereditament and whereof he had an estate of inheritance And moreouer when the King at the first did giue to this Earle and the heires males of his body begotten the foresaide great title of honour though there was no condition expressed in the same grant yet there was a secret condition implied therein viz. that the said grauntée and the heires males of his body should be assistant and seruiceable to the King his heires and successors by his Councell in the time of peace and by his force and prowesse in the time of warre Therefore when the heire male of this Earle the first grauntée did take Councell to breake the peace of the King and leuied warres and imployed his force and power against him he first brake the same secret condition which was annexed to his ancestors graunt of the Earledome And so there is reason and cause whie his said title of honour depending vpon the same condition should therewith cease and determine and that the same should returne againe to the Crowne from whence it was deriued The forfeture of lands in fée simple 27 Besides the forfeitures aforesaide 30. H. 6. 5. euery person that is attainted of high treason petit treason or felonie shall also forfeit his lands in fée simple which he hath in his owne right in vse or possession sauing that the attainder of treason by force of the Statute of Anno 5. El. 1. St. 5. El. 1. ordained against the maintaining of the authoritie of the Bishops and Sea of Rome shall not extend to make any corruption of bloud the disheritance of any heire forfeiture of any dower nor to preiudice the right or title of any person other than the offendor or offendors during his or their naturall liues onely And sauing that the attainder of treason by force of the Statute of Anno 5. Eliz. 11. St. 5. El. 11 prouided against the clipping washing filing or rounding of money maketh no corruption of bloud in the heire or forfeiture of dower in the wife And sauing that the attainder of treason by force of the Statute established Anno 18. El. 1. against impairing diminishing falsifying skaling St. 18. El. 1 or lightning of money maketh no corruption of bloud nor the wife to loose her dower for he that is attainted of that treason shall suffer death and forfeit all his goods and chattels to the King and all his lands during his life onely And likewise sauing that the attainder of felonie by force of the Statute made Anno 1. Iac. 12. against coniuration witchcraft enchantment St. 1. Iac. 12 charme and sorcerie maketh no corruption of bloud nor the forfeiture of the heires or successors inheritance of any land nor of the wiues title of dower And further sauing that the attainder of felonie by force of the Statute prouided Anno 1. M. 12. against vnlawfull assemblies St. 1. M. 12 maketh no corruption of bloud And moreouer sauing that the attainder of felonie by force of the Statute ordained Anno 5. El. 14. against the forging of Euidences St. 5. El. 14. and writings maketh no corruption of bloud nor forfeiture of land or dower And furthermore sauing that the attainder of felonie by force of the Statute of Anno 31. Eliz. 4. St. 31. El. 4 prouided against the imbeseling of the Quéenes ordnance armour or artillery maketh the offendor to forfeit no lands tenements or hereditaments any longer than during his life St. 4. Iac. 1. S. Triall by the country 10. Co. li. 7. 34 S. Br. 56. no corruption of bloud nor the wife to forfeit her dower And the same lawe is if an Englishman doe commit any felonie in Scotland And if a man haue an annuitie to him and his heires The forfeture of an annuity and he doe commit high treason and is attainted thereof he shall forfeit to the King the same annuitie by force of the before recited Statute of Anno 26. H. 8. 13. for that the same annuitie is an inheritance 28 He that is attainted of high treason petit treason or felonie Forfeiting of a title to land shall also forfeit such lands whereof he hath neither possession reuersion or remainder but onely a title or right or cause of action As if a man be disseised of lands and then the disseisée committeth high treason Co. l. 3. 10 after an office found thereof the king may seise those lands as forfeited and escheated vnto him in respect of the same persons attainder of treason And if the disseisée be attainted of petit treason or felonie the Lord of the Fée of whom the same lands be holden may enter into the same lands as escheated vnto him in respect o◠the attainder of his lawfull tenant But the Lord cannot haue a writ or escheat or other action to recouer the same land because his tenant died not or was not seized thereof but his onely remedie is to enter 6. H. 7. 9 And if a man make a lease for the terme of life of his land and after committeth felony and then the tenant for the terme of life dieth the Lord may enter but cannot haue a writ of escheat 29 As he that is attainted of treason or felony shal forfeit his lands Forfeiting of euidence so shal the Lord to whom those lands be forfeited 49. H. 6. 14 haue the euidēce of the same lands as escheated or forfeited vnto him to maintaine his title in the same lands escheated and to prooue how his late tenant came by and held the same lands St. 9. H. 3. 29 30 Though it is ordained by the statute of Magna Charta That iustice shall not be sold deferred or denied to no man neither shall any man be condemned but by lawfull triall and that it be further established by the statute of Anno 5. Edw. 3. St. 5. E. 3. 9 That no man shal be attached nor foreiudged of life lands or goods against the forme of the great Charter and the Law of the Realme So that the Law of the Realme doth allow to euery man that is an offendor his answere and lawfull triall be his crime supposed to be neuer so great and the proofe thereof neuer so manifest But if a man that is arrested of Treason or Felony or being vehemently suspected to haue committed Treason or Felony is attempted to be arrested be so wilfull stubborne or rebellious Forfeiture without at-attainder that he will
right to another and if any doe and bée attainted thereof the taker shall forfeit to the King so much of his lands and goods as doth amount to the value of the part that he hath purchased for such Maintenance and to obtaine that any person that will shall be receiued to sue for the king before those Iustices before whom the suit doth depend and the iudgement shal be giuen by them But it may not be vnderstood in this case Pleaders may giue counsell for their fées that a man may not haue counsell of pleaders and learned men for his fée nor of his next friends And after to the intent to impose a sharper punishment vpō such as should be offendors in Maintenance Champerty or the like by a statute made Ann̄ 33. E. 1. it was enacted St. 33. Ed. 1. That if any person do take vpō him for Maintenance Champerty or the like bargaine any manner of suit or plea against another The punishment of champertors is attainted of such assumption suit or bargaine or of consent thereunto he shal be thrée yeares imprisoned and further punished at the kings pleasure 8 And so it appeareth by the foresaid statutes that it is Champerty Fit Nat. Br. 171. 7. Ed. 3. 9. Fit champ 6. where a man by couenant or agréement made by writing or word What is chāperty what not doth bargaine to haue parcell of the land debt or other thing which is in suit if it be recouered to aid and maintain the party to that suit and in this case he that is the other party to that suit oppressed or grieued by this Maintenance may prosecute a writ of Champerty against the same offendor 9. H. 6. 64. or a writ of Maintenance at his choice for euery Champerty is Maintenance but euery Maintenance is not Champerty And in this case of Champerty he that selleth his land or demiseth his land for life or yeares or any part thereof during the time that the same land is in suit shall be punished according to the foresaid statute of 28. Ed. 1. as well as he that purchaseth the same land Fit champ 5. 30. Ass p. 5. 8. Ed. 4. 13. And the writ of Champerty may be brought against the buyer alone or against the seller alone And it is all one penalty where he selleth his land for mony or other consideration and where hée fréely doth giue his land for if it be giuen during the time that the land is in suit it is Champertie for the Law doth prohibite euery man to obtaine land when it is in suit But if a man purchase land after iudgement it is no Champertie for then there is no suit depending touching that land and if a man that is learned in the Law and doth giue counsell therein 13. H. 4. 19. doe take part of the land that was in variance of his client for his fées after the same is recorded this is no Champerty So that the bargaine be made after the recouery of the land and not depending the suit 47. E. 3. 9. 7. E. 4. 15. And if a man doe bring an action against another and do recouer the thing in question against the defendant yet the plaintife may haue an action of Maintenance against euery person that shall maintaine the defendant in that suit though he hath lost nothing by that Maintenance for that the same Statute of 28. Edw. 1. is a prohibition of Champertie And if a man doe bargaine for land before any suit is commenced for the same and after a suit is prosecuted against the tenant of the land for the same Fit champ 15. if the same tenant doe make a feoffement or other assurance to the purchasor according to his bargaine of the same land during the time of the same suit yet this is no Champertie For in this case the seller did not assure this land to the purchasor vpon couenant to haue Maintenance but to performe his former bargaine and the sale was before the suit though the performance thereof was after And if a man doe make a feoffement of land to others to his owne vse 8. E. 4. 13 during the time that a suit is depending for the same land this is no Champertie for the feoffement was not made to haue Maintenance in that suit but to haue the possession of the land to bée transferred to others and yet to the same vse it was before And a man may giue land to his sonne in Franke-marriage 6 E. 3. 33. or for the terme of his life during the time that a suit is depending against him of the same land and it is no Champertie for that the words of the statute of Anno 28. Edw. 1. be But it is not intended that a man shall not haue counsell of pleaders and of learned for his fée nor of his next friends and the father is bound to relieue and helpe his sonne as much as he may and it is no Maintenance nor Champertie in him to assure the land to his sonne nor in the sonne to take it 21. Ed. 3. 52. And in a writ of Champertie it is a good plea for the defendant to plead That he purchased the land of him who recouered it for his money and not for Champertie to maintaine the suit And if a man doe make a lease for the terme of life of land Fit champ 14. and after the tenant for life is impleaded for the same land and depending that plea the tenant for life doth surrender his estate for life to him in Reuersion this is no Champertie 6 Maintenance may also bée committed in other sorts then be aforesaid Maintenance by Embracery viz. by Embraceors St. 33. Ed. 1. and by Iuries By the Statute of Anno 33. Edw. 1. an Embraceor is described to be one that commeth to the barre with the party and speaketh in the matter and is there to suruey the Iurie And he is accounted an Embraceor Fit Nat. Br. 171. who will threaten the Iurie or any of them if they doe not giue their verdict by his direction and he also who is a procuror of a Iurie to appeare 13. H. 4. 19. that is commonly called a leader of Enquests And the punishment of Maintenance both in Embraceors and Iurors is assigned by the Statutes of Anno 34. Edw. 3. Anno 38. Edw. 3. whereby it is ordained St. 34. E. 3. 8. 38. Ed. 3. 12. That if any Iuror sworne in Assises Maintenance by Iurors or other Enquests to be taken betwéene the King and the party or betwéene party and party doe by himselfe or any other take any thing of the plaintife or defendant to giue his verdict and thereof is attainted at the suit of the party which will sue for himselfe or for the king or of any other person entring his plaint by Bill immediatly before the Iustices before whom the Iurie was sworne the
the time of the said Lease then is he not within the danger of the said Statute though neither hée himselfe nor any of his auncestors nor any by whom he doth clayme the same land haue béene in possession thereof nor of the reuersion or remainder thereof nor haue taken the rents or profites thereof by the space of one whole yeare before the said Lease made For if a man doe enter into lands that be holden of him for an alienation in Mortmaine Or if hée doe recouer lands by a reall action hée may sell the same land or make a Lease of the same land within a yeare after the Entry or Recouerie though neyther hée nor his auncestors nor they by whom hee claymeth the same land haue béene in possession thereof nor taken the Rents or Profites thereof by the space of one whole yeare before Br. Maint 38 6. E. 6. And so it is if a man doe morgage his Land for diuers yeares vpon condition of repayment of money at a certaine day or vpon any other condition If after hée doe redéeme his Land hée may sell it or Lease it within one yeare after though he hath not béene in possession thereof nor taken the Rents or Profites thereof by the space of many yeares before For the meaning of the Statute is not to restraine the bargaining buying or selling of good and cleare Rights but of pretended Righs and Titles And this pretenced Right or Title is What is a pretenced title when one man is in possession of Lands or Tenements and another man who is out of possession of them doth clayme them or doth sue for them for hée is not aptly sayd to haue title to land who is in possession of the same And therefore if he that is out of possession of land doth bargaine sell or make any Agréement Couenant or Promise to depart from the same land or to make any assurance thereof after hée shall recouer the said Land hee is within the danger of the said Statute whether he hath a good title to the same land or not And so it is if one who hath a pretenced Right or Title to copyhold Lands doth bargaine and sell it to another Co. lib. 4. 26 he is within the compasse and danger of the foresaid statute of Anno 32. H. 8. For the words of the statute be If any doe bargaine buy or sell c. any right or title in or to any lands or ténements So that those words any right or title doe extend to all manner of rights or titles and consequently to copyhold lands And séeing a great part of the land of the Realme is graunted by copie Therefore the meaning of the makers of the said Statute of Anno 32. H. 8. was to include them for the auoiding of Suits Maintenance and Champertie and not to leaue all copyhold estates to the mischiefes mentioned in the preamble of the sayd Act. Maintenance by giving of Liueries and retaining 12 Giuing of Liueries Badges Signes and Tokens and retayning of vnnecessarie seruants is an euill budde springing out of the foresayd Branch of Maintenance being put in practise by men of great countenance authoritie and estate and it hath béene from age to age accounted a meane to stirre vp quarrels to boulster Suites to procure Periurie and to subuert iustice And therefore the chiefe Gouernours of this Realme haue endeuoured by many Acts of Parliament to represse or snibbe it as by the Statute of Anno 1. R. 2. 7. Hen. 4. it was ordained St. 1. R. 2. 7. 7. H. 4. 14. That if any person shall giue any Chaperons Hats or such like Liueries to any man for maintenance of quarrels or other confederacies he shall forfeit an hundred shillings for euery such Liuerie and he which receiueth such Liuerie shall forfeit fortie shillings And by the statute of 8. H. 6. it was enacted Sta. 8. H. 6. 4 That if any person of his owne authoritie and proper costs doe buy or weare for his clothing any Clothes or Hats called Liueries of the sort or suit of any Lord Ladie Knight Esquire or other person to haue supportation succour or maintenance in any quarrell or in any other matter and being therof lawfully conuict he shall forfeit fortie shillings and be one yeare imprisoned And by the statute of Anno 1. H. 4. it was prouided St. 1. H. 4. 7. That if any which is a Knight or Esquire meniall of the Kings or who is of his retinue to whom his Maiestie shall giue his honourable Liuerie doe weare his said Liuery in the countrey or Countie where he is resiant or dwelling or in any other place of the Realme out of the Kings presence sauing in going or comming from the Kings house and is thereof duly attainted he shall loose his Liuerie and forfeit his fées for euer And by the statute of Anno 8. Ed. 4. it was established Sta. 8. E. 4. 2. Sta. 1. H. 4. 7. That no person by himselfe or any other for him shall giue any Liuerie or Badge or retaine any person other then his meniall Seruant Officer or learned man in the one Law or in the other by any writing oath or promise And if any doe the contrary hee shall forfeit for euery such Liuerie or Badge giuen an hundred shillings And he which doth retaine or take of any other such oath writing or promise or is retained by Indenture shall forfeit an hundred shillings for euery moneth that any person is so retayned with him by Oath Writing Indenture or Promise And euery person which is retained by Writing Indenture Oath or Promise for euery moneth that he is so retained shall forfeit an hundred shillings But this act shal not extend or be preiudiciall to any Gift Graunt or Confirmation made of any Fée Annuity Pention Rent Lands or Tenements by the King or any others to any person or persons for their counsell giuen or to be giuen or for their lawfull seruice done or to be done and for no other vnlawfull cause or vnlawfull intent although the person to whom such gift graunt or confirmation is made be not learned in the one law or the other Neither doth it extend to any libertie giuen at the Kings or Quéenes coronation or at the instalment of any Archbishop or Bishop or erection creation or mariage of any Lord or Lady of estate or at the creation of any Knights of the Bathe or at the commencement of any clerke in an Vniuersitie or at the creation of Serieants of the law or giuen by any Fraternitie Guild or Mysterie corporat or by the Maior Sherife or other chiefe Officer of any Citie Borough Towne or Port of this Realm of England for the time being during that time for the executing
any person or persons or to his or their right heires Or at any time since the said 20. day of Iuly hath conueyed or hereafter shall conuey or make by couin contrarie to the true intent of the Act prouided 34. H. 8. for the making of Wils any estates conditions mesnalties tenures or conueyāces to the intent to defraud or deceiue the King of his Prerogatiue primer seisin liuerie reliefe wardships mariages or rights or any other Lords of their wardships reliefes heriots or other profits which should or ought to accrue growe or come vnto them or any of them by or after the death of his or their tenant by force and according to the Statutes made 32. H. 8. 1. 34. H. 8. 5. and the same estates and other conueyances béeing found by office to be so made by couin fraud or deceit contrary to the true intent of the said Acts Then the king shal haue as wel the wardship of the bodie and custodie of the lands c. as liuery primer seision reliefe and other profits which should or ought to appertaine to him according to the true meaning of the said acts as though no such estates or conueyances by couin had neuer béene had or made vntill the said office be lawfully vndone by trauerse or otherwise And the other Lord and Lords of whom any such lands c. shal be holden by Knights seruice as is aforesaid shall haue their remedy in such cases for his or their wardships of bodies and lands by writ of right of ward and shall distraine and make auowrie or cognisance by themselues or their bailifes for their reliefes heriots and other profits which should haue béene to them due by or after the death of their tenant as if no such estate or conueyance had béene had or made Sauing the right and title of the donees feoffées leasées and deuisées thereof against the said deuisor and his heyres after the interest and title of the King or other Lord therein ended 24 If the father doe make a feoffment of his lands holden by Knights seruice Fitz. Collusion 29. 33. H. 6. 14. Co. li. 1. 122. to his eldest sonne He that is not partie to a fraud shall sustaine no losse then by the foresaid Statute of Marlebridge the Lord of whom the same lands be holden is inpossibilitie to haue the wardship of the said sonne if the father die his said sonne being within age But if the same sonne doe after make a feoffment of the same land to an other bona fide and after the father doth die leauing his sonne within age there this possibilitie is destroyed for that the stranger who had no notice of this fraud hath purchased the land bona fide and therefore shall sustaine no preiudice by it And yet in that case if the sonne had made the Feoffment after the fathers death Co. li. 2. 94. this alienation had not depriued the Lord of his wardship which was once lawfully deuolued vnto him 25 And it is a deceit collusion and defrauding of the lawe and a great disheritance and preiudice to the Lords of the Fee of whome any lands bee holden to giue the same lands in Mortmaine or to doe any Act or procure any thing to be done whereby they may come into Mortmaine contrarie to the statutes of Magna Charta 7. Ed. 2. 13. Ed. 1. 15. R. 2. and 23. H. 8. for the Lordes doe loose the wardships mariages reliefes and other seruices of their Tenants by that meanes And therefore by the Statute of West 2. it was enacted That if any religious or Ecclesiasticall person doe impleade an other St. 13. E. 1. 31. by a Reall action of land and the Tenant will make default after default whereby hee ought to loose the land Then hee which doth recouer shall not haue Execution of the same Land recouered vntill he hath sued forth the kings writ of Quale ius directed to the Escheator of the same countie to make enquirie by a Iurie what right hee that recouered the land hath to the same And if he hath right Deceit and Collusion to bring land into mortmaine iudgement shal be giuen for him he shall haue execution of the same land And if it be found that he hath no right to recouer by his said action but that the lands were lost by collusion betwéen him and the tenant of the land then the land shall accrue to the next Lord of the fee if hée demaund it within a yéere next after the Enquest taken And if he doth not demaund it within a yeare it shall accrue to the next Lord aboue if he demaund it within halfe a yeare after the same And so euery Lord after the next Lord immediat shall haue halfe a yeare to demaund it successiuely vntill it come to the King to whom through the default of other Lords the land shall accrue For this recouerie of land by default by a compact and couin before agreed vpon betwéene the demaundant being a religious or Ecclesiasticall person and the tenant is to defraud the intent and meaning of the Statutes of Magna Charta and an 7. Ed. 1. whereby it was ordained St. 9. H. 3. 37 St. 7. Ed. 1. That if any religious person or other whatsoeuer will buy or sel any lands or tenements or wil receiue the same by colour of any gift or lease or by reason of any other title whatsoeuer or will by other practise or deuise procure the same to himselfe whereby such lands or tenements may come into mortmayne he shall forfeite the same lands And by the equitie of the foresaid Statute of Westminster 2. if any Ecclesiastical person doe recouer land against another by reddition 3. Ed. 4. 14. confession or action tried yet the collusion shal be inquired of for that the same recouerie may be by collusion before had betweene the demaundant and the tenant And because that by feoffments fines recoueries and other assurances made of trust of lands to the vse of parish Churches Lands assured in Mortmaine to churches chappels Guilds c. Chappels Guildes Fraternities c. there groweth to the King and other Lords and subiects of the Realme the like losses inconueniences and is as much preiudiciall to them as doth and is where lands be aliened in mortmaine Therefore for the eschuing and auoydance of them by a Statute made an 23. H. 8. it was enacted St. 23. H. 8. 10. That all feoffments fines recoueries wills and other estates deuised or in any wise made of trust of any mannors lands tenements or hereditaments to the vse of any parish churches chappels churchwardēs Guildes fraternities or brotherhoods erected or made of deuotion or by common assent of the people without any corporation Or that the Feoffees Conisees Recouerées or other persons and their heires thereof seised shall take leuie or perceiue or cause to be taken c. the issues and profites thereof and the same to
orphans within the City of London or any other City Borough or Towne where Orphans Orphans are commonly vsed to be prouided for either by grant or by custome But the Lord Maior of the city of London and the Aldermen of the same and euery other head Officer of any other Citie c. where such Orphans be prouided for shall and may haue take like rule order kéeping and charge of such Orphans and of all their lands tenements goods cattels as heretofore they vsed or lawfully might haue had vsed if this act had not bin made There was grandmother a widdow mother a widdow ij daughters Co li. 3. 37. the grandmother being seised of certain land in sée holden in socage did by her last wil in writing bequeath the same to the said ij daughters to the heirs of their ij bodies begotten by euen portions equally to be diuided the remainder to the mother being her sole daughter and heire apparant her heires and after the mother maried a second husband and then the grandmother dyed after whose death both the said daughters entred into the said lands so deuised vnto them and then the yonger daughter being betwéene the age of xiiij and xvj yeares and liuing in house with her father in law and mother of her owne will and forwardnesse and with the consent and agréement of her father in law departed foorth of his house in a morning and the same day in another place maried a husband In this case it was adiudged that the said yonger daughter had forfeited her moitie or halfe part of the said lands so deuised vnto her The daughters forfeiture for mariage without her mothers consent by her contracting of Matrimonie and that her said mother should take the benefit of the said forfeiture for the mother had the custodie and gouernement of the said daughter at the time of the said contract by the special words and prouision of the said statute which gouernment was annexed to the person of the mother Iure naturae and was not transferred to her second husband by her mariage as her lands and goods were and so her husbands consent was not materiall nor that consent which the meaning of the makers of that statute did respect and prouide for And though the daughter was forth of her mothers house at the time of the contract of mariage yet in the iudgement of law the mother had then the custodie of her which was inseperable from her person And seeing the foresaid stat of 4. St. 4. 5. P. M. 8. 5. P. M. doth giue the forf to the next of the kin to whom the inheritance should discend or come after her decease during the life of such person that so shall contract matrimonie therfore the partie must be of the blood next of the blood to whom the inheritance vpō such forf shal discend or come which is the mother not the eldest sister for administration may be grāted of the goods of the son or of the daughter dying intestat to the father or mother as to the next of the blood of the party deceased according to the stat of an 21. H. 8. 5. And further though the elder sister be of kin to the yonger yet in this case if the yonger haue any issue her land should discend to her issue and if she haue no issue it should remaine to her mother for that the elder and yonger sisters were tenants in common in taile though they neuer made partitiō indeed the remainder therof to their mother in sée by force of the said deuise of their grandmother who by her will meant and ordained that the land should bee diuided and that one of them should not enioy the whole as suruiuor to the other 41 Hauing written of deceits and frauds practised or performed by some particular persons to others as by the tenant to his Lord Seuerall deceits prohibited by seuerall Statutes the debtor to the creditor the seller to the purchaser the lessor to the lessée c. I am now to expresse and discouer some other guiles frauds and falshoods which the offendors therin do endeuor to put in vse or practise not onely against any one two or more speciall persons as in the cases aforesaid but against euery person that shall put them in trust or otherwise shall haue occasion to vse them or theirs which our stat lawes haue accused and condemned to be offences and haue inflicted vpon the transgressors thereof seuerall punishments As by the stat of Anno 9. St. 9. H. 5. 8. H. 5. falsifiers and counterfeiters of deceitfull and vntrue weights Counterfeiting of weights deceitfull being attainted thereof shal be taken by Iust of peace Sherifes Eschetors other cōmissioners kept in prison without mainprise vntil they haue made fine and ransome according to the Iust discretion St. 23. H. 8. 4 By the stat of An. 23. H. 8. If any diminish a barrell a kilderkin or firkin to the deceit or hurt of another Deceit by diminishing of a vessell by taking out the head or any staffe he shal forf iij. iiij d. and be punished by the discretion of the chiefe officer Deceitfull things vpon fustian before whom the offence shall be presented and the vessell shall be burned By the stat of An. 11. H. 7. Sat. 11. H. 7. 27. If any denizen or forreiner shall vse yrons or other deceitfull thing vpon fustians vnshorne to breake off the nap and cotton of the same but onely the broad shéeres he shall forfeit for euerie offence twentie shillings to the king and him that will sue By the statute of Anno 18. Deceit in goldsmithes work◠El. If any Goldsmith doe make any Goldsmithes worke Sta. 18. El. 14 or plate which shall be touched marked or allowed for good by the Wardens or Masters of that Mysterie and that in the same there shall be found any falshood or deceit then the sayd Wardens and Corporation shall forfeit the value of the thing exchanged or sold to the king and the partie grieued By the Statute of Anno 1. Deceitfull vsing of linnen cloth Eliz. If any do cast or cause to be cast St. 1. El. 12. any péece of linnen cloth ouer a péece of timber and doth by any deuice racke draw and stretch the same of length and bredth and then doth beat it and cast deceitfull liquors mingled with chalke or other things vpon it or doth vse any other deceitfull thing wherby it shal be the worse for the vse thereof then he shal forf the same to the K. and him that will sue for it be one moneth imprisoned at the least and pay such fine as shall be assessed by the Iustices before whom he is condemned By the Statute of Anno 19. Deceits in weights or beames for pewter or brasse H. 7. St. 19. H. 7. 6 4. H. 8. 7. If any
enquest of twelue women before the Iustices 22. As p. 71 25. Ed. 3. 42. 12. As p. 11 23. As p. 2. Fitz. Cor. 240. 253. who being then sworne to examine and trie the trueth shall take that woman into a chamber and search and trie whether she be quicke with childe or not and if she be found to be quicke with childe then execution of her shall be staied vntill she shall be deliuered But if shée be not quicke with child she shal be hanged presently for it will not auaile her to be yong with childe And yet whether shée be with child or not Iudgement shall not be delayed but shal be presently giuen against her that she shal be hanged but only the execution of that iudgement shal be stayed If after she is repried and deliuered of her childe and before the next Gaole deliuerie she be with child againe though she be quicke with childe execution shall not be staied but she shal be put to execution presently And yet in that case the truth of the matter being inquired of and found the shirife marshall or gaoler which had the custodie of her shal be fined for kéeping her so slackly that shée had the company of a man 13 If a man attainted of felonie be adiudged to be hanged Fi. Cor. 335 and the sherife doth carrie him to the place of execution and doth hang him and he breaketh the Rope and falleth downe before he be dead A man hanged falleth downe before he be dead In this case the sherife must take him and hang him againe for his iudgement is that he shal be carried to the place of execution and there be hanged vntill he be dead And so vntill he be dead the iudgement is not fully executed ⧠Forfeiture AFter an offendor is attainted of treason or felonie A felon shal forfeit lands and goods and hath had iudgement of death hée shall presently thereby forfeit his goods and also his lands sauing in certaine cases hereafter expressed though it be not mentioned in the iudgement And notwithstanding there is a difference betwéene treason and felonie concerning the forfeiture of lands yet touching the forfeiture of goodes they be all one for they shall be forfeited to the King St. 17. Ed. 2 16 as it appeareth by the Statute intituled Prerogatiua Regis which hath ordained That the King shall haue all the goodes of felons which be condemned and which be fugitiue wheresoeuer they be found and if they haue any fréeholde it shall be forthwith seised into the Kings hands and the King shall haue the profites thereof by the space of a yéere and a day and the land shall be wasted and destroyed in the houses woodes and gardeins and in all things belonging to the same except men of certaine priuiledged places And after the King hath had the yeare day and waste the land shall be restored to the chiefe Lord of the same Fée vnlesse that before hée redéeme the same yéere day and waste of the King by payment of a fine But there is a custome in the countie of Gloucester that after a yeare and day the lands and tenements of felons in that Shire shall reuert and be restored to the next heire to whom they ought to haue descended if the felonie had not béene committed And in Kent in Gauelkinde the Father to the Bough the Sonne to the Plough there all the heires males shall diuide their inheritaunce and likewise women but women shall not make partition with men And a woman after the death of her husband shall be endowed of the moitie And if a woman doe committe fornication in her widdowhoode or take any husband she shall loose her Dower 22. As p. 96 Fit forfeiture 35. 2 A man being indicted before the Coroner of the death of an other man Forfeiture of goods and if it be further found by the same indictment that hée did flie for the said felonie although after he be acquitte of the same felonie 7. Eli. 35. Dy. 238. Co. l. 5. 109 and notwithstanding that the Enquest which did acquitte him doe say that he did not flie for the felonie yet his goodes shall be forfeited to the King For the King shal take holde of that Record which is most for his benefit and that is the Coroners Record And in like sort if one that is indicted of felonie Fitz. forf 32. Fi. Cor. 290 344. is acquitte thereof by verdict Flying for felonie if the Iury which did acquitte him will say that he did flie for the felonie he shall forfeit his goodes which he had at the time of the verdict giuen which being an auncient lawe of this Realme is grounded vpon this reason that notwithstanding his acquitall of the felonie yet he is to be suspected of the felonie for the vehement presumption which is risen of him as well in respect of his flying away as by the indictment And though the Enquest which did finde that he fled for the felonie be as touching that part of their verdict but an Enquest of office yet it is not trauersable because it is onely touching goodes for the which goodes no trauerse against the King is allowed by the Lawe for the Lawe doth accompt goodes inter minima de minimis non curat lex And though goods be in comparison of mans life or his lands in the eie of the Lawe called and accompted Minima yet they be not of so small value or so little to be regarded but the Iudge or the Coroner ought with all due circumspection foresée that the Iurie be not vpon ignoraunce or small euidence seduced to finde an vntrueth to the vtter vndooing of the partie indicted or accused Fi. Cor. 308 338. And in like sort if a man be indicted and arraigned of felonie and it is found by the Enquest or the Coroners Roll that hée fledde for the felonie he shall forfeit his goodes though hée hath the Kings pardon of the felonie for the charter of pardon doth containe the presumption of him that he is guiltie of the felonie An accessorie fled for the felonie 3 If a man be indited before the Coroner as accessorie to the death of an other man and it be found that he fled for the felonie 4. H. 7. 18 in this Case hée shall forfeit his goodes if hée were accessorie before the felonie committed But if it be found before the Coroner that hée was accessorie to the felonie after the offence committed and that he fled for the felonie hée shall not forfeit his goodes for the Coroner hath no authoritie to meddle with any that was accessorie after the homicide committed but onely with such by whose meanes the dead man was slaine or who were the causes of his death which the accessorie after the offence committed could not be And therefore when hée indicted one for receiuing of a murderer and that he fled this inditement of the receipt of the
not yéeld to be iustified and tried by the Law but will either kill himselfe or giue cause to other men to slay him Fi. Cor. 289 290 312. S. Br. 5. for resisting and not submitting his obedience to the Law then he shal forfeit his goods so that this offence be found and presented by twelue men before the Coroner or some Iustices after his death for in this case the default is in the offendor and not in the Law that he came not to lawfull triall of his offence for the law requireth no more but that the supposed offendor shal be safely kept sub custodia legis by imprisonment or maineprise vntill it be tried whether he be an offendor or not But though the person thus slaine shall for his disobedience forfeit his goods béeing not attainted either of treason or felonie yet in the like case he shall not forfeit his lands if hee bee slaine in arresting or after arrest or otherwise die before he be attainted St. 34. E. 3. 12. as it appeareth by the Stat. of an̄ 34. Ed. 3. 12. which hath established That for forfeitures of dead persons not attainted nor adiudged in their liues their heires or land-tenants shall not be impeached or challenged nor of any other forfeiture except the forfeitures in old time adiudged after the death of the persons by presentment in Eyre or in the Kings bench or of felons of themselues or others And yet some doe affirme if a man doe leuie warre or open rebellion against the King or is assistant to his enemies in the field and then is slaine in battell he shall forfeit his lands goods And others doe adde thereunto that the same his Treason and manner of death must also after his death be found by a Iurie super visum corporis Co. li. 4. 57 Pl. Com. 262. 263. before the chiefe Iustice of England being the soueraigne Coroner of the realm and he must returne it into the Kings Bench and make a Record therof and then that person shall forfeit his lands and goods And vpon those words of the sayd Statute of 34. Ed. 3. viz. Except the forfeitures in old time adiudged after the death of the persons by presentment in Eire or in the Kings Bench or c. some doe inferre that if a presentment in Eire or in the Kings Bench be made of such an open rebellion and battell thereupon foughten and of those that manifestly shewing themselues to bée open enemies or rebels to the King were slaine therein that by the words of the same Statute they shall forfeit their lands But if a man bée arrested for counterfeiting the K. great or priuie Seale for forging of his money or for a priuy conspiracie of the death of the King or c. and is slaine in resisting the said arrest or for a rescous attempted before or after the sayd arrest hee shall forfeit his goods but not his lands And if he bée arrested for any of the sayd offences and committed to prison for the same and after doth dye in prison before he bee attainted of any of the sayd offences he shall neither forfeit lands nor goods though he be taken with the manoure viz. found hand hauing and backe bearing for though it is a mischiefe that a man committing high Treason shall forfeit neither life lands or goods yet the law doth rather beare with that mischiefe than to suffer such an inconuenience that a man onely accused or but only a supposed offendor should bée attainted and forfeit his lands and goods where being preuented by death viz. by the hand of God hee cannot come to answer and defend himselfe and by that meanes cannot bée condemned by such lawfull tryall which is meant and specified in the before rehearsed Statute of Magna charta But for the auoiding of questiō and doubt in the case aforesaid they which haue béene knowne parties to such open and manifest rebellions St. 29. H. 6. 1 St. 12. El. 16 St. 29. El. 1 St. 35. El. 5. St. 3. Iac. 2. haue béen of late yeares attainted by Act of Parliament and their lands and goods giuen as forfeit to the King As it appeareth by the stat of Anno 29. H. 6. 13. El. 29. El. 35. El. 3. Iac. The forf of the yeare day and wast 31 There is another forfeiture besides the losse of life lands annuities Fi. Cor. 310 290. 327. and goods wherewith the law hath deuised to punish those that doe commit petit Treason or Felonie and be attainted thereof which is called in Latine the forfeiture of Diem annum vastum the forfeiture of the yeare day and wast which is executed vpon the houses and lands of the offendor that be holden of any other sauing of the king That is the felons houses and lands shall bée seised into the Kings hands where they shall remaine by the space of a yeare and day and then the houses shall be throwne downe to the ground the trées shall be pulled vp by the roots the medowes shal be ploughed vp and all things which the felon did build or plant shal be cast downe digged vp Fitz. Cor. 358. and supplanted Which punishment was ordained in despight of offendors and to shew to others how much the law doth detest murderers committers of burglarie robberie and other felonies and as much as may be to terrifie and discourage others to attempt or practise the like 32 It appeareth by Bracton that by the common law the King should haue had but onely the wast of a Felons lands viz. the benefit to pull downe his houses root vp his trées plough vp his medowes and such other commodities as he could haue raised by spoyling and wasting of the felons houses trées and lands and that then the land so wasted should haue béene presently deliuered to the Lord of the fée of whom the same lands were holden which wast and spoyle was then made without redemption And after by a composition made betwéene the King and the Lords it was agréed By what means the K. came by the yere day and wast That the King should haue the benefit of the felons lands a yeare and a day to redeeme the spoyle and wast which hée might make of the sayd felons lands And the K. graunt by the great Charter made Anno 9. H. 3. St. 9. H. 4. 3 22. tendeth to the same effect viz. Wee will not hold the lands of those that bée conuict of felonie but a yere and a day and then they shall bée deliuered to the Lords of the fées And so it séemeth that King Henrie the third and King Edward the first did hold themselues satisfied with the yeare and day of the felons lands without taking the wast thereof St. 17. E. 2. 16 But after Anno 17. Ed. 2. the Kings Prerogatiues royall béeing expressed or enacted by Parliament amongst others it is ordayned That the King shall haue all the goods of felons which be
should be forfeited to the King from the time of his flying vntill the presentment and also that the King should haue the yeare day and wast S. Br. 30. But this land shall not come to the Lord of the fée by Escheat because hée was not attainted of felonie Pi. Cor. 332 38 The King shall not haue the yeare day The yere day and wast of a Clerke conuict Land of small value and wast of the lands of a clerk conuict neither shall the Lord of the fée haue the forseiture thereof for that the offendor is not attainted but onely conuict of felonie And if the land of the felon attainted be but of the yearely value of thrée or foure shillings or of so small value Fi. Cor. 327 that it will cost more to obtaine it by suit out of the Kings hands than it is worth then the King shall not haue the yeare day and wast thereof St. 17. E. 2. 16 39 The words of the foresayd Stat. of Praerogatiua Regis be If they haue any fréehold When the K. shall haue the felons yeare day and wast it shall bée presently seised into the Kings hands This word presently ought to bee intended immediatly after the Office found and not before 49. E. 3. 11. Fitz. N. B. fol. 144. And therefore if an Office of that land bee not found vntill it bee many yeares after the felons attainder yet from the time of the Office found vntill a yeare and a day after the King shall haue the Felons lands And also the King shall haue the profit of the Felons lands from the time of his attainder vntill the Office bée found thereof though it bée twentie years betwéene the attainder and the Office for the heire of the felon cannot haue it in respect of the corruption of bloud And the Lord must not haue it by Escheat vntill the King bée intituled vnto it by Office and vntill one yeare and a day after and vntill the King hath wasted it vnlesse the Lord doth agrée with the King in the meane time for the sayd yeare day and wast And moreouer Fitz. Trauerse 48. 4. E. 3. 47. the Lord cannot at any time enter into the same land as escheated vnto him vntill hée hath sued a writ to haue it deliuered vnto him out of the Kings hands for after a writ is awarded to find the land of him that is attainted of Felonie another Writ shall bée directed to enquire if the King hath had the yeare Regist fol. 165. day and wast and that beeing found the Lord shall haue the land out of the Kings hands and not before because though the attainder of the Felon was found and that the King ought to haue had the yeare day and wast yet it may bee that the King neuer had the profit thereof but was interrupted by some pâ—â—â—on or by some casuall meanes 40 This commoditie to the King and forfeiture of the felon of the yeare Fit Cor. 310 day and wast is such a benefit to the King and so firmely and highly annexed to the Crowne The yere day and wast not grantable froÌ„ the Crowne that it cannot be seuered from it or granted to any other neither can any person claime it by colour of any franchise or libertie But after the King is intituled vnto it by Office hée may graunt or commit the land to another during the yeare and day and also giue him authoritie to take the benefit of the wast What goods of felons the king shal haue 41 The words of the foresaid stat of Praerog Regis be The K. shal haue all the goods of felons which be condemned and which bee fugitiue which is as much to say as he shall haue all their goods mouable and vnmouable for the King shal haue the corne growing vpon the land of the felon attainted and the issues and profits of the land which he hath in his owne right or in the right of his wife during the time of his life or vntill he doth purchase his pardon But touching the profit of fugitiues lands there is a difference betwéene a flying presented before the Coroner and a flying found by verdict vpon an acquitall for vpon a flying presented before the Coroner Forfeiture vpon flying Fi. Cor. 296 344. he shall forfeit the profits of his lands vntill his death or vntill he be acquit or vntill he hath purchased the K. pardon but vpon a flying found by verdict vpon acquitall he shall forf no issues of his lands for by his acquitall the land is discharged and consequently the issues thereof From what time forf of land shal haue relation 42 The law hath restrained offendors in Treason and Felonie to certaine times to make alienation of their lands and goods and hath prefixed limits whereunto the forfeiture of their said lands and goods shall haue relation and yet with this difference That as soone as any Treason or Felonie is committed the offendor therein is restrained to make any alienation of his lands for then it is not his land but by the committing of the Treason or Felonie Pl. Com. 263. 30. H. 6. 5. Bracton Fitz. Forf 30. Bracton l. 2. 13. hee hath forfeited all the estate which he had therein And therefore if betwéen the time of the committing of the Treason or Felonie and of the offendors attainder thereof the offendor doth make any alienation or assurance of his land after the time that the offendor shall be attainted of the same Treason or Felonie the said assurance shall bée void whether the same attainder bée by verdict confession or outlawrie for the forfeiture of the land shall haue relation from the time of the offence committed From what time the forf of goods shall haue relation 43 The forfeiture of goods and chattels shall not looke backe so farre as forfeyture of landes nor shall haue relation from the time of the Treason or Felonie committed but from the time of the Attaynder of the Treason or Felonie And therefore if one doe commit Treason or Felony Fi. Forf 30 and in the meane time betwéene the Treason or Felony committed and the offendors attainder thereof the offendor doth giue away his goods this is a good gift for as yet they be not forfeit but be his owne to maintaine himselfe and his family vntill he be attainted of Treason or Felony and by the Law adiudged not worthy to possesse or enioy goods nor to haue sustenance And therefore if vpon a fugam fecit presented before the Coroner one doe forfeit his goods he shall not forfeit those goods that hée had at the time of the Felony committed but he shall onely forfeit those goods which he had at that day when the fugam fecit was presented against him And in like sort if one that is indicted of Felony be acquit thereof by verdict and in their verdict the Iury doe find Fi. Cor. 296 that
nothing for that they be discharged of their charge and seruices which they did hold by which was as much as they receiued of the tenant perauaile And if they held of the King by lesse rent than their tenant perauaile held of them they shall haue the surplusage of that which was holden of them of the king by the way of petition Fitz. Assise 124. Fitz. Petition 19. And if the king doe not kéepe the land so escheated vnto him in his hands but will assure it to another hée must reuiue the tenure in the Mesne Lord to hold of them of whom it was holden before the attainder It appeareth by the statute of Praerogatiua Regis cap. 12. That the Kings and whole Court of Parliaments meaning was at that time when it was published and established by Parliament which were the Prerogatiues royall annexed to the Crowne of England by the common law That of such lands as did escheat to the King the seruice of the Lord of the fée should be reserued for the words of the Statute bee these viz. St. 17. Ed. 2. 12. The King shall haue escheat of the lands of Normans to whose sée soeuer they belong Sauing the seruice appertayning to the chiefe Lordes of the same Fée And King Henrie the third gaue the Escheates of Normans landes to bee holden of the chiefe Lordes of the Fee by Seruices and Customs due and accustomed thereunto Some of which Normans dwelling in Normandie at that time had lands in England and were subiects to the King of England and did forsake their obedience to the King of England and became subiects to the K. of Fraunce the King of Englands enemie and therby did forfeit those lands which they had in England by the common law and they did escheat to the king 48 In Petit Treason Who shal haue the forf in petit treason and felony and Felony the king shal not haue the escheat of the offendors land vnlesse it be holden immediatly of him but the king shal haue the profits of the said offendors land by the space of a yeare and a day and the land shall be wasted and destroyed in the houses woods and gardeins and in all things belonging to the same and then it shall bee deliuered to the chiefe Lord of the fée of whom the same land is immediatly holden And yet in some cases the King shall haue the forfeiture of the land of him which doth commit Petit Treason or Felonie though the land be holden of others and not of him St. 17. E. 2. 14. as it appeareth by the Statute of Praerogatiua Regis which hath ordained That the king shall haue the escheates of lands of Archbishops and Bishops fréeholders when such tenants be attainted of Felony committed in time of vacation whilest their temporalties were in the Kings hands to bestow in what sort it shall please him Sauing to such Prelats the seruice that to them is due and accustomed And therefore sauing in the cases aforesaid the mesne Lords of whom the lands be immediatly holden shall haue their escheats of their fréeholders lands that haue committed Petit Treason or Felonie which land after the King hath hath had the yere day and wast thereof they must haue deliuered vnto them out of the kings hands by suing out of a writ S. Br. 39. 49 If any stranger The Lords remedy for lands escheated vnto him or other sauing the King doth intrude into that land whereof the felon attainted was seised at the time of the felony committed the immediat Lord of the fée of whom the same land is holden may enter vpon him and put him out or else he may haue his writ of Escheat against him In the which writ he must rehearse the iudgement giuen against the person attainted viz. if he were attainted by outlawrie to alledge Eo quod praedictus A. feloniam fecit pro qua vtlagatus fuit and if he were attainted by abiuration to say Pro qua regnum nostrum abiurauit and if he were attainted by confession or verdict to say Pro qua suspensus fuit and if hee doe alledge one of those iudgements Fitz. Escheat 14. Fitz. Escheat 8. Fitz. Escheat 6. in the stead of another his writ shall abate And yet he néed not rehearse the manner of the felonie in his writ nor in his count but generally that he committed felonie And though there be error in the iudgement yet the Lord shall haue a writ of Escheat and the tenant shall not falsifie the iudgement by the errour 46. E. 3. 4. 50 Island escheat to the auncestor The heirs remedie for land escheated to his auncestor because his tenant was attainted of felonie and the auncestor dyeth before he doth bring his writ of Escheat or doth enter In this case the heire may haue a writ of Escheat and suppose that the partie attainted did hold of his auncestor Fitz. Escheat 17. 51 If a lease of land be made for the terme of life reseruing to the lessor a rent and the lessor payeth his seruices to the chiefe Lord and then the lessor is attainted of felonie Where the Lord shall haue his writ of Escheat and where he may enter and after the tenant for terme of life dyeth In this case the Lord paramount may haue a writ of escheat of the land for the rent which was reserued vpon the lease doth come in stead of the land and so in the consturction of law he died seised of the land But if no rent had béen reserued the Lord might haue entred into the land as escheated vnto him 6. H. 7. 9. but could not haue recouered it by a writ of Escheat no more than if his tenant being disseised had bin attainted of felony in which case his only remedy is to enter The forme of a 〈◊〉 of Escheat 52 This is the forme of the writ of Escheat Rex vicecomiti B. salutem Praecipe A. quod iuste sine dilatione reddat B. decem acras terrae cum pertinentijs in N. quas C de eò tenuit quae ad ipsum B. reuerti debent tanquam Escaeta sua eò quod praedict ' C. feloniam fecit pro qua suspensus fuit vt dicitur Vel pro qua vtlagatus fuit vt dicitur vel pro qua regnum abiurauit vt dicitur Et nisi c. And though the indictment was executed in other maner than is rehearsed in the writ yet the writ shall not abate Register fo 165. as if he were Decapitatus non suspensus for the execution of the iudgement is not material so that he had such a iudgement for the action is true though the writ be not true The K. remedie for land escheated to him 53 In all cases of felony if the king ought to haue the escheat he must haue an office found for him before he can enter for vntill the office found the king hath but a
possession in law and not in déed notwithstanding the death of him which is attainted But by the stat of an 33. H. 8. the king shal haue the lands St. 33. H. 8. 20. goods cattels and all other things of the offendors attainted of high Treason without any office the words of which stat be these viz. If any person or persons shal be attainted of high Treason by the course of the common lawes or statutes of this realme in euery such case euery such attainder by the common law shal be of as good strength value force and effect as if it had bin done by authoritie of Parliament And the K. his heires and successors shall haue as much aduantage by such attainder as well of vses rights entries conditions possessions reuersions remainders and all other things as if it had bée done and declared by authoritie of Parliament and shal be déemed and adiudged in actuall and real possession of the lands tenements hereditaments vses goods chattels and all other things of the offendors so attainted which his Highnes ought lawfully to haue and which they so being attainted ought or might lawfully loose and forf as if the attainder had bin done by authoritie of Parliament without any office or inquisition to be found of the same Any law statute c. notwithstanding By force of which stat the King shall be in actuall and reall possession of those lands which do escheat vnto him by any attainder of high Treason An office of those lands which do escheat for felonie without any office or inquisition thereof found though for those lands which do escheat vnto him by any attainder of felonie there must be an office found for him before he can enter according to the antient course of the common law Forf of title of Dower 54 By the common law any man attainted of Treason or felonie should haue forfeited that title which his wife had by their espousals to be endowed of his lands to the intent that if the care of his owne life could not stay him from the committing of felony or treason yet the loue which he did beare to his wife and children should restrain him therof whom he was assured by that wicked act to vndoe and vtterly to depriue them of all likelihood wherewith to maintaine them And some do affirme that this law was at the first deuised to punish the wise and to auoid her dower for that it was intended that the wife gaue consent vnto or at the least did know of the Treason or Felonie which her husband committed and either by intreatie persuasion or some other meanes might haue withdrawne him from it But the common law in that case is altered by the stat of Anno 1. Ed. 6. St. 1. E. 6. 12 whereby it is enacted That albeit any person or persons of what estate condition or degrée he or they be shal fortune to be attainted conuicted or outlawed of any Treason petit Treason Misprision of treason Murder or Felony whatsoeuer yet that notwithstanding euerie woman that is or shall fortune to be wife of the person so attainted conuicted or outlawed shal be endowable and enabled to demaund haue and enioy her dower in like maner and forme as though her husband had not béene attainted conuicted or outlawed Any statute law custom c. notwithstanding But after some part of the foresaid stat of Anno 1. E. 6. was altered by a braunch of a stat St. 5. 6. E. 6. 11. made Anno 5. 6. Ed. 6. whereby it was prouided and enacted That the wise or wiues whose husband or husbands hereafter shal be attainted of any Treasons whatsoeuer they be shall in no wise be receiued to aske challenge demand or haue dower of any the lands tenements or hereditaments of any the person or persons to be attainted of treason as is aforesaid during the said attainder in his force And yet sithence the foresaid stat of 5. 6. Ed. 6. it was specially prouided and ordained by the stat made Anno 5. El. 1. Anno 5. El. 11. An. 18. El. 1. That the husbands attainder of treason by force of any of the foresaid stat should cause no forf of dower in the wife S. Br. 27. Br. Appeale 117. Fitz. Iudg. 225 Plo. Com. 261. 55 If in an Appeale the Appellée do wage battell What the Appellée that wageth battell shall forf and the Appellant doth slay him in the field the Appellee shall forf all his goods chattels but his land shall not escheat for inheritance is so greatly fauoured that it shall not be forf without attainder by iudgement But if the Appellant do vanquish the Appellee then his land shal be forf for when he is vanquished and not killed iudgement shal be giuen that he shal be hanged and by that meanes he shall forf his land 6. H. 8. Dyer 2. 56 If a man seised of land in fée A rent charge pro consilio not forfeited doth grant a rent charge out of the same to another for the terme of the life of the grantee pro bono cōsilio suo impendendo with clause of distres within the same land if the grantée of this rent charge be attainted of treason and committed to prison yet hee shall not forf this rent charge to the K. for it is incident to the cause for the which it was giuen viz. to the counsell to be giuen by the grantée to the grantor which was a trust that the grantor reposed in the grantée to giue him counsell which trust the grantée cannot assigne or forf to another And though the grantée of this rent charge be attainted of treason and imprisoned yet the grantor may come or send to him for his counsel and he may giue it him and so there wil be no fault in him But if a man do purchase a rent charge for the time of his life out of another mans lands in consideration of a summe of money paid by the grantée to the grantor and after the grantee is attainted of treason or felony the same rent charge shal be forf to the K. and paid to him during the life of the grauntée S. Br. 27. The forfeitures of an Outlaw 57 Out of all which foresaid forfeitures Bracton de coron̄ c 13 the words of Bracton may be verified who writeth That a man outlawed or otherwise attainted of Treason or Felony shall forfeit his coūtrey and kingdome and shall become a banished man who in English is called an Outlaw And in former times he hath béene tearmed a Friendlesse man and so he hath séemed to forfeit his friends for if any man after his Outlary doth willingly féed him receiue him kéepe company with him or hide him he shal be punished in the same sort that the Outlaw shall Also he shall forfeit all things which be peaceable séeing that from the time he is an Outlaw he carieth a Wolues head so
that all men may kill him without punishment and specially if he defend himselfe or flie away in such sort that he may be hardly apprehended But if he doe not flie or defend himselfe then he that killeth a man so taken shal answere for him as for any other man for that life and death be in the kings hands vnlesse there be a custome to the contrary as in the Counties of Hereford and Glocester And he shal forfeit the benefit of Law for he which being outlawed will be so bold as to returne without the kings licence shall die without law or further examination in iudgement And he cannot appeale others for he hath lost the benefit of law and carieth with him his iudgement vpon his head he can haue no defence so long as the Outlary standeth in force It is vpright iustice that he shal perish without law and iudgement who refuseth to liue according to the law And he shall forfeit his right and possession of all things that he hath gotten or may get And all bonds obligations homages fealties oathes and other contracts made with him be dissolued which can neuer be reuiued but vpon a new contract though he be restored And he shal forfeit all his tenements and hereditaments from him and his heires and euery action that was due to him before his Outlary though he be after restored by the kings pardon And Outlary of felony and euery other iudgement of felony doth dissolue all the gifts sales of land that he made sithence the time of the felony committed The outlawes goods shal be the kings for he cannot be outlawed in any other place but in the kings Court as in the Country Court or in the Hustings of London ⧠Corruption of Blood 1 BY attainder of Treason or Felony commeth corruption of Blood that is to say that the offendors children cannot be heires to him that is attainted nor to any other auncestor Corruption of blood salued by Parliament only And if the offendor were a Nobleman or a Gentleman before by this attainder he is become ignoble and not onely he himselfe but also all his children hauing respect to the Nobilitie which they had by their birth And this corruption of Blood is so grieuous that it cannot bee salued otherwise then by authoritie of Parliament But if the King will pardon the offendor it will cleanse the corruption of blood of those children which be borne after the pardon and they which be borne after the pardon may inherite the land which their auncestor purchased at the time of the pardon or after but so cannot they which were borne before the pardon And also he that is attainted of Treason or Felony shall not bee heire to his father but his disabilitie shall hinder others to be heire so that during his life the land shall rather escheat to the lord of the fée 27. Ed. 3. 77. Fi. Petit. 20 then discend to another But if he that is attainted doe die without issue of his body during the life of his auncestor then his younger brother sister or cousin shall inherite for if the eldest sonne be hanged Fi. Discēt 6. 26. As p. 2. or doth abiure the Realme for Felony during the fathers life it is no impediment but that the youngest sonne may inherite 29. As p. 11 13. H. 4. 8. Fit Discent 17. And if he which is attainted of Treason or Felony in the life time of his auncestor doe purchase the Kings pardon before the death of his auncestor yet he shall not be heire to his said auncestor but the land shall rather escheat to the lord of the fée But if the eldest sonne be a Clerke conuict in the life of his father and after his father dieth in this case he shall inherite his fathers land because he was not attainted of Felony for by the common Law hée should haue inherited after hée had made his purgation And now by the Statute of Anno 18. Eliz. hée shall bee forthwith enlarged after burning in the hand Fi. Cor. 382 St. 18. Eli. 6. and deliuered out of prison and not committed to the Ordinary to make his purgation and so he is in case as if he had made his purgation Where corruption of blood shall preiudice tenant by the courtesie 2 If a man that hath land in the right of his wife haue issue 13. H. 7. 17 and doth commit Felony for the which he is attainted and the king doth pardon him in this case if his wife doe die before him he shall not be tenant by the courtesie for the corruption of blood of that issue But it is otherwise if he hath issue after the pardon for then he shall be tenant by the courtesie although the issue which he had before the pardon be not inheritable The eldest sonne attainted of felony during his fathers life 3 If a man seised of lands hath issue two sonnes 32. H. 8. Dyer 48. and the eldest is attainted of Felony in the life of his father and is executed for the felony or otherwise dieth during the life of his father and after the father dieth seised of the land the land shal discend to the youngest sonne as heire to his father if the eldest sonne hath no issue then liuing But if the eldest sonne that was attainted hath any issue in life which should haue inherited but for the attainder the land shall escheat to the lord and not discend to the younger brother for that the blood of the eldest brother is corrupted Where an attainder but n◠corruption of blood 4 S. Forfeiture 27 That the attainder of Treason or Felony in certaine cases shal not extend to make any corruption of blood the disinheritance of any heire forfeiture of any dower nor to preiudice the right or title of any person other then of the offendor or offendors during his or their naturall liues only ⧠Restitution of stolne goods 1 HAuing written of Robberies and other Felonies and declared how Felons are to be prosecuted by Arrest Appeale Indictment Arraignment Tryall and Iudgement and what they shall forfeit I meane now to shew how true men whose goods were robbed stoln or feloniously taken from them by such Felons shall be restored to their goods againe As it is necessary for the Commonwealth that Felons should be punished least the impunity of some should incourage them and also allure others to commit the like offences so is it fit that they chiefely whose goods were taken from them and therby haue tasted the smart and receiued the losse by the Felons and are more likely to know who they be and where they be then others are should doe their vttermost endeauor to procure those Felons to be apprehended brought to their answers and to haue them punished according to their demerits that is to say he that was robbed What is fresh suit or whose goods were stolne from him ought presently after the
things done in the Countie which belongeth to the Office of the Coroner And also an Appeale shal be entred of Robberie or Larcenie in the presence of the Coroner in the Court of any frée man which hath a franchise of Infang théefe Election of the Coroner Which Coroner shall be chosen into the same Office vpon the death or other auoidance of another by force of the Kings writ directed to the Sherife of that Countie where that Office is void by death or otherwise And the same election shall be in the full County Court by warrant of the Kings writ The tenor of which writ is as followeth 2 Iames by the grace of God c. The writ de Coronator◠eligendo To the Sherife of the Countie of Buckingham Salutation c. Because L. one of our Coroners of the Countie is deceased as we are informed we do commaund thée if it bee so that thou doest cause another Coroner to be chosen in thy full Countie by the assent of the same Countie in the place of the same L. according to the forme of the statute therefore made and prouided Who taking his othe according to the custom shall from thenceforth do and performe all things which doe appertaine to the Office of a Coroner in the Countie aforesayd And cause such a one to bee chosen which best can and will attend that Office How long a Coroner shal continue in his Office When a Coroner is chosen he shall continue in his Office vntill the King hath otherwise determined his pleasure 4. E. 4. 44 or that the King doth dye or that there be another King for he is not changeable euerie yeare as the Sherife and Escheator is And then the Sherife shall giue him an othe That he shall lawfully and without demaunding of any reward make his enquests and inrolments and do all things which do belong to the office of the Coroner 3 And because many meane men and of small discretion were diuers times chosen into the sayd Office of Coroners and for that it is expedient that discréet lawfull and sage men should meddle in the same Office therefore by the Statute o◠Westminst prim̄ made Anno 3. Edw. primi St. 3. E. 1. 10 it was ordained Who shal be Coroners by whom they shal be chosen That all Coroners of Shires shall bée chosen in the full Counties by the Commons of the same Counties of the most méet and worthie people which may bée found in the same Counties to execute the sayd Offices and of the most sage and wise Knights which doe best know can and will attend vnto the same Office and which will lawfully attache and present the Pleas of the Crowne And the same Statute was after rehearsed and confirmed by the Statute of Anno 28. Edw. 3. by which it was ordained St. 28. E. 3. 6 That Coroners of Counties shall bée chosen in the full Counties by the Commons of the same Counties of the most fit and lawfull persons of the same Counties Alwayes sauing to the King and other Lords which ought to make such Coroners their Franchises St. 14. E. 3. 8 But by the Statute of Anno 14. Edw. 3. no Coroner shall bée chosen A Coroner must haue sufficient land if hée haue not sufficient land in fee in the same Countie whereof hée may answer all manner of people And because this Statute is in the negatiue therefore the not satisfying of it is a sufficient cause to remooue a Coroner from his Office And hée is sayd to haue sufficient land if hée hath land in the Countie whereupon hée may liue according to his degrée to execute that Office And whereas the foresayd Statute of 28. Edw. 3. hath ordayned Fi. N. B. 164. That a Coroner shall bée chosen by the Commons of the sayd Counties that is intended by the fréeholders of the same Counties and by none other Whether Coroners ought to be knights 4 The foresayd Statute of Westminst prim̄ St. 3. E. 1. 10 committeth the Office of Coroners to Knights and none others and therefore in former ages it was a cause amongst others to discharge a Coroner of his Office that hée was no Knight But because those words were put into the Statute onely to the intent that the Coroner should haue sufficient within the same Countie for which cause if that be performed the intent of the Statute is obserued Causes to remoue a Coroner 5 And also the same statute doth ordaine That such shall bee chosen Coroners which do know can and will attend vnto the said Office And therefore if any be chosen which do not know cannot or will not attend vnto the same office they shal be remoued and discharged of that office by the K. writ Co. l. 5. 57. wherein the cause of his discharge shall be rehearsed either because he is imployed in other affaires of the K. or that he is sicke of some grieuous and long infirmitie or that he is lame or that he is not méet for that office viz. by force of some clause contained in the said statute of West 1. or that hee hath not sufficient lands within the same Countie or that he hath the palsey Fitz. N.B. 165. N. or that hee is dwelling in the vttermost part of the Shire or that he is chosen Sherife or verderer of a forrest But if any of those causes surmised be false whereby the Coroner is discharged of his Office by false suggestion then he may sue for a commission to be awarded out of the Chauncerie to enquire of the same suggestion And if it be found false and returned so into the Chauncerie then there shall be a Supersedeas awarded out of the Chauncerie to the Sherife that hee shall not remoue the sayd Coroner And if he be remoued that hée shall suffer him to enioy the sayd Office as he did before But it is sometimes vsed and most commendable for him that is chosen Coroner if he perceiue in himselfe any of the foresayd impediments Register fo 177. to purchase a writ out of the Chancerie to discharge him of the said Office 6 And because the sayd Coroner should doe iustice and right to all persons Where a Coroner may take a fee and where not without extortion or exaction St. 3. E. 1. 10 the foresayd statute of West 1. doth further ordaine That Sherifes shall haue counter-rolls with the Coroners as well of Appeales as of Enquests of Attachments and other things which do belong to his Office And no Coroner shall demaund or take any thing for the execution of his Office vpon paine of a grieuous forfeiture to the King Which said Statute was also confirmed by a statute made at Excester St. 14. E. 1. anno 14. Edw. 1. And by the statute made Anno 1. H. 8. it was enacted St. 1. H. 8. 7. That vpon request made to a Coroner to come and
enquire vpon the view of any person slaine drowned or otherwise dead by misaduenture the sayd Coroner shall diligently doe his Office vpon the view of the bodie of euerie such person or persons without any thing taking therefore vpon paine to euerie Coroner that will not endeuour himselfe to doe his Office as is aforesaid or that hee taketh any thing of any person for doing of his Office vpon euery person dead by misaduenture for euerie time fortie shillings And the Iustices of Assises and Iustices of Peace within the countrey where such default of Coroners be haue authoritie to enquire thereof and to determine the same as well by examination as by presentment But by a statute made Anno 3. H. 7. it was prouided St. 3. H. 7. 1. That a Coroner shall haue for his fée vpon euerie Inquisition taken vpon the view of a bodie murdered or otherwise slaine iij. s̄ iiij d. of the goods and cattels of the murderer if he haue any and if he haue no goods the Coroner shall haue his fee of such amerciaments as any towneship shall be amerced for escape of any such murderer And though by the common law the Coroner hath a fee Fitz. Cor. 321. 372. a penie of euerie Visinage as appendant to his Office at the comming of the Iustices in Eire yet that fee is not repugnant to the foresayd statute of Westminst 1. for hee taketh not that to execute his Office but as a fee of right incident to his office though he do nothing in the execution of the said Office St. 3. Ed. 1. Bracton de Corona cap. 5. 7 It appeareth both by the stat intituled Officium Coronatoris Of what things Coroners shall inquire and by Bracton that if any Coroners be aduertised by the K. Bailifes or other honest men of the countrey to come to those that be slaine sodainly dead or wounded or to house breakers or to any place where treasure is found they shall immediatly come and forthwith commaund foure fiue or sixe of the next townes that they appeare before them in such a place and when they come the Coroners vpon their othe shall inquire Murder if they did know of that man that was killed where he was first slaine whether in the field or in the house bed Tauerne or in any companie and who were there Inquirie of the offendors Likewise they shal inquire who were culpable either of the act or force and who were present either men or women and of what age they be so they can speak and haue discretion And they which be found guiltie by inquisition in the foresaid maner shal be taken deliuered to the Sherif and committed to the gaole and as many of them as be not found guiltie shal be attached vntil the comming of the Iustices and their names inrolled A man found slaine And if any man be sodainly slain and found in the fields or woods it is to be considered whether he were slaine there or not if hée were brought thither their steps that brought him if it may be shall bee followed and so shall the tracke of horse and cart And also it shall be inquired if he that was slaine were knowne or vnknowne and where he lodged the night before And if any be found guiltie of the death of such immediatly the Coroners shal come to his house and inquire what cattell he hath and what corne in his graunge and what on the ground and if he be a frée man what frée land hée hath and what it is worth by the yeare beside the Lord of the fées seruice but the land shall remaine in the kings hands vntill the Lord of the fée hath made a fine for it And when they haue enquired of all things then they shal cause them to be priced as if they should straight way be sold and the bodie of him that is dead shall be buried Moreouer the Coroners shall enquire of them which be drowned sodainly slaine Sodainly slaine or strangled by the signe of a coard tyed strait about their neckes or about any of their members or vpon any other hurt found vpon their bodies or some other manifest token and shall attache the finders and al other in their company A Coroner ought to inquire of treasure that is found Treasure trone who were the finders and who are suspected thereof which may be gathered by some mans delicat liuing and frequenting of Tauernes which vpon suspition shall be attached by foure or sixe or mo pledges If any be appealed of Rape Rape he shall be attached by foure or sixe pledges if the appeale be fresh and the signe of the truth apparant or an open outcrie leuyed But if it be without any manifest token or outcry two pledges shall suffice Vpon Appeale of Maihem if the wounds Maihem or wound be mortall they which bee appealed shall bée forthwith apprehended and kept vntill it be knowne whether he that is hurt shall recouer or not if he dye they shall be retained if he liue they shall be attached by foure or sixe pledges according to the bignesse of the wound If it be for a Maihem then there shall be no lesse than foure pledges if a small wound be then two will serue The length breadth and déepenesse of all wounds The length breadth and déepnesse of wounds ought to be viewed and with what weapons and in what part of the bodie the partie was hurt and also how many wounds there be how many be culpable and who gaue the wound all which things shall bee inrolled in the Coroners roll Horses boats carts commonly called Deodands Deodands wherby any person shall perish shall be valued and deliuered to the whole township which shal be answerable therefore Whosoeuer layeth hands vpon the wreck of the sea Wrecke of the Sea shal be attached by sufficient pledges The price of the wrecke shal be valued and deliuered to the towne to answer c. 8 It doth first appeare by the words of this stat St. 3. Ed. 1. that the Coroner ought to do his office in his owne proper person The Coroner shall execute his Office in his owne person and not by Deputie viz. They shall presently come to those that bée slaine or sodainely dead And so also it is declared by the Statute of Excester St. 14. E. 1. and prooued by the foresayde definition of the Office or Authoritie of a Coroner viz. That a Coroner shall make a Record of his owne view which is that hée shall sée the dead bodie when hée doth make the inquirie or otherwise the inquirie is not good Fi. Cor. 10◠For if hee will inquire of any dead person without the sight of him this is without authoritie and so void The Coroner shall sée the dead body And therefore if the bodie bée buried before his comming hée must record it in his Rolles to the intent that the towne where
to him and so no other person is intituled to haue those goods the King shall haue them as confiscat according to the old text Quod non capit Christus capit fiscus And the appellant shal be thus punished by the losse of his goods for his negligence attenuating concealing of the robbers offence Confiscation by a false appeale 20 If a man bring an Appeale of Robberie against another which tooke the Appellants goods lawfully Fitz. Cor. 367. and not feloniously viz. found them in the high way it is so found by verdict in this case though the appellée hath no cause to detaine them against the appellant for that they were his owne goods yet the plaintife shall loose them for his false appeale and they shall bee confiscat to the King and also the appellant shall bée committed to prison for charging the defendant with robberie whom he did know came lawfully by the goods Co. li. 5. 110 and so for malitious séeking of a mans bloud without cause and the defendant shal be discharged 21 There is another kind of forfeiture of felons goods to the King which is called a waif A waife and that is when a felon vpon huy and cry or other pursuit after him or for feare to bee taken er otherwise to ease himselfe of carriage Co. li. 5. 109 doth without Huy and crye wayue cast away or goe from the goods that hée did steals and hath in his possession or some part thereof and doth flye away whereupon the Kings Officers or some other in the Kings right doth seise those goods Seising of a waife In this case the goods so seised be called a waife and the King shall retaine them to his proper vse if the owner of them doth not make fresh suit after the felon to attaint him for those goods And if the owner doe make fresh suit after the felon hée shall haue his goods againe notwithstanding the waiuing and seising of them And this forfeiture of goods by waife is a penaltie which the law imposeth vpon the owner of those goods for default of fresh suit against the felon and for omitting his duetie in pursuing and apprehending of the felon being a pernitious and corrupt member of the Commonwealth St. 21. H. 8. 11. And by the Statute of 21. H. 8. the Iustices before whom any felon or felons shal be found guiltie or otherwise attainted by reason of euidence giuen by the partie robbed or owner of any money goods or cattels robbed or by any other by his procurement haue power to award from time to time writs of Restitution for the said money goods or cattels as though any such Felon or Felons were attainted at the suit of the party in Appeale But if a felon doe steale goods Co. li. 5. 109 and carrie them into a Mannor and there leaue them or leaue them in his owne house or in the house of any other or in the custodie of any other or hide them in the ground or in any secret place and after doth flie these goods shall not be adiudged in law to be waiued nor shall bée forfeited for if the felon hath not the goods with him when he doth flie or doth waiue them for feare to be taken they shall not be accounted waiued or forfeited but the owner may take them againe without fresh suit for that there is no default in him 22 If a felon do steale goods and after doth waiue them The owner seiseth goods waiued the owner of them may reseise the same goods and carrie them away twentie yeres after the waiuing of them if in the meane time no Officer of the Kings nor of any Lord of a libertie 21. Ed. 4. 16. hath seised them before the owner But if any Officer of the Kings or of any Lord of a Franchise hath seised them before then the owner must sue an Appeale against the felon and so he may haue his goods againe if hée hath made fresh suit or else the owner must procure the felon to be indicted arraigned and found guiltie or otherwise to be attainted by euidence giuen by himselfe or by some other by his procurement and by that meanes obtaine a writ of Restitution to be awarded by the Iustices before whom the sayd felon shall be arraigned according to the foresaid statute of 21. H. 8. 11. And the like law is if a felon do steale goods and doth not waiue them nor any Huy and crie is made vpon him but one in the Kings right doth take the goods from the felon vpon suspition that he hath stolne them yet the owner vpon fresh suit shall haue restitution of them againe for it may be that the owner had not intelligence of the stealing of his goods a long time after they were stolne and then could not make fresh suit nor leuie huy and crie 23 There can be no waife but of goods stolne sauing in certaine cases for if one do take goods as a trespassor and doth goe from them No waife but of stoln goods no man can seise them as a waife P. 13. E. 4. 5 And therefore in an action of Trespas of goods taken away if the defendant do iustifie for a waife it is a good issue for the plaintife to ioine that the goods were not stolne And if a man do fly for a felonie and leaue his house goods yet those goods shall not be a waife for that they were not stolne And in some speciall case there may be a waife though there be no stealing Waif of goods not stolne as vpon a huy and cry leuied 29. E. 3. 29. a man that hath committed no felony doth leaue his owne goods and doth flie to a church those goods may be seised to the Kings vse for a waife No waife of goods stolne from an Alien 24 If the goods of an Alien which hath the Kings safe conduct both for bodie and goods be stolne from him and by the felon bée after wayued and refused yet those goods cannot bée claimed or seised by the Officers of the King or of any Lord of a Franchise for a waife for when the King hath graunted to the Alien safeconduct both in bodie and goods and this is a couenant betwéene the King and him then if a felon doe steale his goods and after waiue them it is no reason that the Alien should loose them and be put to sue against the felon but he must sue to the King vpon his couenant And therefore the K. cannot haue those goods as waife and by the same reason hee cannot graunt them to another neither can any haue them by prescription Forf of lands 25 As he that is attainted of Treason or Felonie shal loose his goods debts and rights Tenant for yeares so also shall be forfeit his leases for terme of yeares of lands the lands which he holdeth by extent of Statutes Recognisances or Iudgemēts his