againste al men but it extendes to suche landes as are holden of these persones exempted by this statut Put case then that anie of these persones pourchace a seignorie since the tyme of the makynge of this statute shall the kynge haue hys prerogatiue in the landes holden of that seignorie or not And it is clere he shal notwithstandynge the aforesayde woordes of exception for theye doe not extende but to suche fees as we are theyrs at the time of the makynge of this statut Then further for asmuche as there bee diuers statutes concernynge wardeshyppe made aswell beefore as since the time of kynge Edwarde the seconde let vs see whether this prerogatiue wyl extende to those statutes or not and it seemethe it dothe for asmuche as this prerogatiue hathe beene euer from the beginninge as I haue sayde before And therefore if the kynges tenaunte beeinge seased of landes holden of a common parson makethe a feffement therof by collusion contrarie is the statute of Marlebridge to defraude the lord of the wardshippe and diethe the king hauing his heire in warde this matter founde by office shall sease vpon a Scire facias if the collusion be auerrable or wtout a Scire facias if the collusioÌ„ be apparaunt hold the same in warde by force of this prerogatiue that appeareth in 9. H. 4. So likewise wher the statute made in 4. H. 7. T. 9. H. 4. f. 5 prouidethe that the heire cesty que vse shall bee in warde Put case that the kynges tenaunte in capite before the statute in Anno. 27. H. 8. had made a ferfement of lands which he holdethe of a common perâ—one to the vse of hymselfe his heires and died before that statute in this case the kinge shoulde haue hadde his prerogatiue in the Landes so beynge put in feoffament to an vse euen as if his tenaunt had died seased thereof T. 12. H. 7. fo 17. as it appearethe 12. H 7. Than last of all let vs learne howe the lordes whose fees the kynge hathe in warde by his prerogatiue shal be demeaned and ordered for the rentes to be dewe for their seignories duringe the wardshippe whether they shall leese them as they do the landes 29. lib. ass in fits ti Petic p. 5. P. 24. E. 3 f. â—â— and the new natura breuium fo 179. And it appeareth in the booke of assises in 29. E. 3. that they had them by peticion at the Kynges hands therwith agreeth thoppinion of Hill ' in the .24 yere of kyng E. 3. Learne the reason of these bokes for it should seme to me the lawe to be otherwise because that al mesne seignories are suspended duringe the time the kyng hathe the tenauncye in warde if it bee not per case for the surplusage of a rent seruice whiche the mesne maye sue for to the kynge by waye of peticion and to saye that the heire shal be charged at his full age withe the sayde rentes it weare noe reason for then bothe his lande shoulde bee in warde and yet he charged to pay rent for the same wherefore it semeth that these bokes are against the law And with me agreeth Bracton in his first boke in the chapiter de custodia where he saieth Et cum tali ratione sint aliorum feoda in manu do mini regis pred' ratione alij capitales domini feod ' illorum ni hil poterint exigere de terris et tenÌ„tis illis nec in seruic ' nomi nat ' nec in auxiliis ad filiam maritandam vel filium primoge nit ' militem facieÌ„duÌ„ vel in sectis quaÌ„diu terre fuerunt in manu domini regis sed precipiet ' vic' qd ' hmÌ„odi distringere non permittat Howebeit Bracton in his said booke in the chapiter De releuijs saieth that the heire at his full age shall pay his reliefe to euerie of his lordes notwithstanding he hathe ben in warde quod nota for in al other cases he neuer paiethe reliefe that is to saye where he hathe bene in ward and hee makethe no other reason for it butte this s. quod hoc est speciale in rege propter suum priuilegium and so is the booke in the .24 M. 39. E. 3. in Fits ti Relief P. 1. Britton f. 163. yeare of kynge Edwarde the thyrde and the .39 yeare of the same kynge howebeit Brittons oppinion is that the heire shall paye noe reliefe to the other lordes after hee hathe beene in the kynges warde and commethe to his full age and I cannot fynde that the heire in anye suche case shoulde or doothe paye anye reliefe to the kynge that is to saye where hee hathe beene in warde therefore learn what experience teacheth vs in these cases The seconde chapiter ITem Rex habebit maritagium hered ' infra etateÌ„ in custodia sua existenÌ„ siue terre hered ' eorundem sint ab antiquo de corona siue de eschaetis quae sunt in manu domini Regis siue habuerit maritagium ratione custod ' terrarum dnÌ„orum eorundem hered ' nullo habito respectu ad prior ' feoffamenti licet de alijs tenuerunt Bracton li. 1. ti de herede sockman in cuius custodia esse debe at BrittoÌ„ f. 163 M. 24. E. 3. f. 24. H. 12. H. 4. in fits ti Gard. P. 81. All that is contayned in this Chapiter was the kynges prerogatiue by the order of the common lawe as it maye appeare in the bokes of Bracton and Britton in the places before noted and in a boke in the 24. yeare of kyng Edward the thyrde where it is sayde that no lorde can be more auncienter than the kynge for all was in hym and came from hym at the begynninge And therefore his highnesse muste haue prerogatiue in the bodye of whosoeuer the infaunte holdeth besides bee it that the landes are holden of the kynges highnes as of the auncientnes of his Corone or of hys newe escheates or come vnto hym as warde by reason of wardshippe or that his highnesse doe pourchace the seignorie of hym that is lorde by posterioritie or pourchaseth a manor holden of one of his honors whiche are of his newe eschetes of whiche maner thauncester of thinfaunt helde by posterioritie in all these cases the kynge shall bee preferred to the wardeshippe of the bodye and mariage beefore anye other lorde of whom the auncester also helde them daye of his death by priority of feffement that is to saye more auncient feoffement howe be it in these cases hys highenesse shall not haue wardeshippe in the landes holden of thother lordes beecause his tenaunte helde not of hym in châ—efe but onelye shall haue preferrement in the body and mariage beefore all other Then since the common lawe and statute dothe geue the kinge this prerogatiue let vs see whether his highnesse maye by grauntinge away his seignorie to an other graunt also with the same his prerogatiue to the grauntee that is to
away all his purchased landes But of the lands of his inheritaunce he might giue away no more but a reasonable porcion And if the landes were departible amongest the heires males then might the father in his life time geeue euerye childe what porcion hee woulde so it exceded not the porcion that shoulde descend vnto him And in that case whether the gifte were of landes purthased or of inheritaunce it made no matter Howbeit neyther Abbot nor Bishop might iÌ„ any of these cases geue any porcion of their landes away without the kinges assent or his confirmacion because theire baronies bee of the almes of the king or of his progenitours Hitherto haue ye hearde what Glanuill hath saide After this was the Statute of Magna carta made where in the .31 chapter therof it is writen Nullus liber homo det de cetero ampliê° de terra sua vel vendat de cetero quam vt de residuo terre sue possit sufficienter fieri dnÌ„o feodi seruiciuÌ„ ei debituÌ„ quod pertinet ad feoduÌ„ illud Which statute is but a confirmacion of the comon law as it doth appere by that that is written in Glanuil for so one that had helde by knight seruice if he might haue beene suffred to alien the greatest part of his land he would haue aliened the same peraduenture to hold of him but in Socage or by some smal rent than hauing so little a liuelyhod left to himselfe how had he bene then able to haue done the seruice of a knight or a man of warre or what should his lord haue had in ward to haue founde one to haue done that seruice surely little or nothing Wherby the strength of the Realme might haue much decayed therfore it was a reasonable law to restrain him as me semeth Howbeit Bracton in his first booke vnder the title Si ille cui datuÌ„ est rem datam vlterius alteri dare possit disputes this matter after a sorte that is to say whether the tenant may enfeffe an other agaist the lords will or not he there affirmes he may yea that to hold of him by what seruice he will calleth it DamnuÌ„ absque iniuria seing that though the wardship be not so good after alienacion to the chief lord as it was before yet the relief is as good in euery point then if the lord be serued either of the wardship or reliefe he hath all that knightes seruice requireth Howbeit saith he when the tenant is so disposed to sell his land the lorde shal bee preferred to the sale therof before a stranger geuing as muche as an other will It semeth by Bracton that it was verie doubtfull notwithstanding the statut of Magna carta whither the kings tenaÌ„t might alien his whole tenancy or not And therefore was the statute of Quia emptores terr' made where it is prouyded that from thenceforth which is in the .18 yere of kinge E. the first after Bractons tyme it should be lawful for euery fre man to sell his landes or tenementes or any parte therof at his pleasure to holde of the chiefe lorde by the same seruice that the feffour helde Prouided alwaies that by anye suche sales there comes no landes to Mortmaine This statut remedies the mischief that was founde in the wardship but not the other mischiefe that is to saie touching the defence of the realme For when one mans lyuinge is so dismembred neuer a one of them is able to doe the seruice of a man for want of lyuehoâ—e Yea and much more vnabler since this Statute then before For before where he gaue it to hold of himself he reserued somewhat in place of the lande that went from him where as now he can reserue nothing of comen right Howbeit notwithstanding that this statute of Quia emptores terraruÌ„ made it lawfull for all other mens tenauntes Yet was it not lawfull by the said statute for the kings tenants so to doe that is to saye neither to alien the whole nor any parcel therof without the kinges licence And that appereth by Bracton fo 88. Which speakes generally that the kings tenantes in chief cannot dismember his fees wtout his licence And because that before the time of king Edw. the firste they might haue aliened without licence to holde of themselfes as other mens tenauntes might haue done in the like case thinking it more lawful for them so to doe after the making of the said statut of Quia emptores thaÌ„ before it was thought good to prouide some stay for the same by this statut of Prerogatiue And yet by the woordes of the other chapter folowing it appereth that the kings tenant by grand serieantie could neuer haue aliened any lands holden by grand seriantie wtout the kings lyceÌ„ce For that was so high a seruice as Bracton in his first booke in the title de magnis seriaÌ„ciis names it Regale seruicium saith it was first inuented wtin this realme in the time of the Conquest that they coulde not dismember any parte therof without the kinges lycence For he saith in another place in the said booke amongest his writes of particion Quod seriantia diuidi non debet ne cogatur Rex accipere seruiciuÌ„ suuÌ„ per particulas Howbeit since the makinge of this statut of Prerogatiue sundry opinions haue risen in these matters as may appere by the statut made in the firste yere of king E. 3. ca. 12. Which saith in this maner Item pur ceo que plusours gents du Realme soy pleinont deste greues de ceo que terres et tenemÌ„ts que sont tenus en chiefe du roy et aliens sans son conge ount este pris auaunt ceux heures en mains le roy et tenus come forfets le roy ne les teigne my coÌ„e forfets en tiel case mes voet et graunt que desormes de tiels terres et tenementes aliens soit reasonable fyne pris en le chaÌ„cerie per due proces So that by this statute it appereth they toke the landes to be forfeted that were holden of the kinge in chiefe and aliened without his licence And so it appereth by a booke in .14 E. 3. wher Wilby saith that at this day landes holden by graund seriantie and aliened without lycence be forfeted 14. E. 3. in Fitz ti Quare imp p. 54. For the seruice of one mans body cannot be chaÌ„ged into another mans body without the kinges assent Also in the said first yere of king E. 3. the. 13. chap. It is prouided in this wise Et auxi come plusors gents du people soye plenont deste greues per purchase de terres et tenÌ„ts que ont este tenus des auncestors le roy que ore est come des honours et mesmÌ„s tiels tenements on t este prises en le maine le roy auxi si come ils eussent este tenus du roi en chief come de sa
titles as be in the great abrigement of Iustice Fitzherbert were by the Iudges or some other learned men labored studied that is to say euery title by it selfe by speciall diuisions digested orderd and disposed in suche sort as that all the iudiciall actes and cases in the same might be brought appere vnder certeine principles rules and groundes of the saide lawes As for example vnder the title of Briefe might come these titles Fourm Misnaming of the persō Mysnaming of the town One thing twise demaunded death of the plaintifes side death of the defendauntes syde chaunginge of the name of the pleintife or defendaunt hanginge the sute with manye suche other lyke which nowe as thinges scatered abroade and out of orderlye hidden wythin the saide longe tytle that it requires muche more learninge paynes and Studye well to order and dispose the matter in the same then after order made to learne and beare it awaye And yet surelye there cannot bee to muche praise and commendacion geuen vnto that greate learned man the Auctour of the saide great abbridgement which by his greate learninge exact iudgement and intollerable paynes brought suche an infinite nomber of volumes to the readynge whereof A mans lyfe woulde scant haue suffised to a muche more lesse and narower cōpasse whereupon nowe these learned men wyth lesse paynes might compile the thing that should be so easy so profitable and fruitfull to the studentes thereof that in halfe those yeares they now lye sleping in they might come to a ryper and more certeine knowledge and better iudgement For which cause I haue drawen as it were a patern of the thinge I so muche desire takinge vppon mee such tytles as appertaine vnto the kinges prerogatiue not as one in anye parte woorthy to treat of a thynge so high preciouse as that is or in learnynge sufficient or hable therunto for of myne owne here is nothinge more then onelye a colleccion and disposition of that that is alreadye contayned in the saide tytles but rather because I haue alwayes meant this my deuyse vnto you which I coulde not doe or practise so well vppon anye tytle as vppon this that appertayneth vnto your office of Attourneyshippe of the wardes and liueries partly for that I knowe your selfe to haue obserued the like order in your owne Study whiche in fewe yeres hath gotten you aboue other the greate learnynge you haue partlye also for that I couet your Iudgement in these matters wherewith you be daylye in vre and exersised knowinge that I haue to doe herein with one so muche my frynde that if there be any thinge worthie the readinge he will take it thankfullye and if not so well yet will hee take it in good part the rest that is amisse he wil beare it with me This therefore what soeuer it bee I dedicate vnto you read it peruse it and make of it what you will Fare you well from Greis Inne the sixt of Nouember Anno. 1548. ¶ Prerogatiua regis edita Anno. 17. E. 2. Cha. 1. DOminus Rex habebit custodiam omnium terrarum eorum qui de ipso tenent in capite per seruiciū militare de quibus ipsi tenentes fuerunt seisiti in dominico suo vt de feodo die quo obierunt de quocunque tenuerint per huiusmodi seruitium dum tamen ipsi tenuerunt de rege aliquod tenementum ab antiquo de corona vsque ad legittimam aetatem heredis Exceptis feodis Archiepiscopi Cantuariensis Episcopi dunolm̄ inter Tine et Tese feodis Com̄ et Baronum de marchia de terris in marchia vbi breuia domini regis non currunt Et vnde predict ' archiepiscopus ep̄us Com̄ et Baron̄ habeant huiusmodi custodiā licet alibi tenuerunt de Rege Prerogatiua is as muche to saye as a priuilege or preeminence that any person hath before another whiche as it is tollerable in some so it is most to be permitied and allowed in a prince or soueraine gouernor of a realme For besydes that that he is the most excellentest worthiest parte or mēber of the comon body of the welth so is he also through his good gouernaunce the preseruer nourisher and defender of all the people beeing the rest of the same bodye And by his great trauailes studie and labours they enioy not onlye their lifes landes and goodes but all that euer they haue besides in rest peace and quietnes as Seneca sayethe Seneca de consolat ad Polibium Omnium domos illius vigilia defendit omnium ocium illius labor omnium delicias illius industria omnium vacationem illius occupatio For which cause the lawes do attribute vnto him all honour dignitie prerogatiue and preeminence which prerogatiue doth not onely extend to his own persō but also to all other his possessions goods and cattals As that his person shal be subiect to no mans suite his possessions cannot be taken from him by anye violence or wrongfull disseisin his goods cattals are vnder no tribute tolle nor custome nor otherwise distreinable with an infinite nomber of prerogatifes more whiche were to tedious here to recite Howbeit forsomuch as in euery realme the kinges prerogatifes are no small parte and portion of the profites and commodities of the Corone of the same namelye within this realme of Englande it hath bene thought good heretofore to declare and setfurth in writing certeine of the most highest and weightiest matters and articles touching the said prerogatifes And hereupon was there a declaracion made in writing by auctoritie of parliament holden in the .17 yere of the raigne of kinge Edw. the .2 the beginning wherof is in maner and fourme as is aboue written Howbeit this parlament maketh no part of the kinges prerogatife but long time before it had his being by thorder of the commen law as plainlye may appeare by them that haue written before the making of the saide statute of prerogatife Glanu li. 70 For Glanuill who was chiefe Iustice in kynge Henry the .2 daies writing of this matter saith in thys wise Notandum quod si quis in Capite de dn̄o rege tenere debet tunc eius custodia ad dominum regem plene pertinet siue alios dn̄os habere debet heres fiue non quia dominus rex nul lum habere potest parem multo minus superiorem Bracton li. 1 de custod ' et marit ' dominorum Also Bracton whiche wrote in the time of the latter raigne of king Henry the .3 saieth Si aliquis heres terram aliquam tenuerit de domino rege in capite siue alios dominos habuerit siue non dominus rex aliis prefertur in custodia heredis siue ipse ab aliis prius feoffatus fuerit vel posterius cum rex parem non habet in regno suo Both these wryters doe not onely agree in euery point but also geue a reason why the kinge shoulde haue the prerogatiue conteined in this
any suche accion against the kinge For Bracton which wrote in king H. 3. time or nere thereupon saith in his .iii. booke vnder the title Contra queÌ„ coÌ„petit assisa in this wise Inter cetera videndum est quis sit ille qui deiecit Princeps ex poteÌ„tia vel aliquis nomine suo vel iudex qui male iudicauerit an priuata persona si princeps vel rex vel alius qui superiorem non habuerit nisi deum contra ipsuÌ„ non habebitur remedium per assisam imo tantum erit locus supplicationi vt factum suum corriget et emendet quod si non fecerit sufficiat ei pro pena quod deum expectet vltorem qui dicit mihi vindictam et ego retribuam nisi sit qui dicat quod vniuersitas regni et Barronagium suum facere possit et debeat in Curia ipsius regis sed si alius ex facto et disseisina principis statim vel ex post facto in seisinam institerit quamuis talis incidat in assisam et in penam vel tantum ad restitutionem secundum quod seisina ad ipsuÌ„ peruenerit statim vel ex post facto sine principe tamen conueniri non poterit per assisam quia licet quodamodo disseisinam fecerit tamen non per se sed cum alio s. cum principe et ita quod sine eo respoÌ„dere non potuit et ita non procedit assisa Indirecte tamen et quasi ex incidenti et sine breui comprehendi poterit persona principis ad hoc quod factum suum emendet vel in ê‘sonam suam reduÌ„dabit iniuria manifeste vt ecce Esto quod impetretur assisa tantum super eum ad quem res translata est sine principe et qui tenetur ad restitutionem et ad penam vel ad minus ad restitutionem et ipse respondeat quôd sine principe qui fecit iniuriam per se vel per suos respondere non debeat quia ipse princeps per se fecit iniuriam vel ipsi duo insimul extunc erit factum et iniuria in manu domini regis qui dici debet in facto quasi warrantus et quod tunc poterit si warrantus voluerit factum suum emendare quasi a lege compulsus et quam in persona sua cum sit ei submissus debet firmiter obseruare So that by Bracton it appeareth that no accion lyeth against the kinge but the partye greeued is dryuen to sue to the king by peticion But the reason why that aduowsons shoulde passe in the kings case by the order of the common lawe thoughe it were not expressed in the graunt was this I suppose because that landes or tenementes were not then compted as thinges that touched the roiall estate or that made the kynges crowne lyke as Liberties or fraunchises did For the one a comon persone might haue as well as the kinge but the other none might haue but the king or suche as were able to shewe his grant therof and therefore saith Bracton in his first booke vnder the title que res dari possint that for landes currit tempus contra regem sicut contra quamlibet priuatam personam Which is as much to say that if the king had right to any such landes or tenementes and hadde surcessed his time so longe that it exceeded the time of limitation in a write of right his highnes hadde lost then his right for euer And herewith agreeth Briton fo 29. But that is saith Britton of landes parcell of the kinges eschetes or pourchased landes and not of the auncient demeasnes of his crowne for of those nullum currit ei tempus if hee haue anye righte to demaunde them So that by Britton this reason will not serue for landes parcel of the crowne Ideo quere veraÌ„ rationem Howbeit since this statute made what landes soeuer they be those thinges that are comprised in this statut passe not without making expresse mencion therof Hetherto we haue spoken of the reason why at the common lawe aduowsons shoulde passe by graunt of the manour without being named now let vs see how since the makinge of this statute it shal lykewise passe by graunt of the manour without being expressely named and how not And if the kinge render vp to him that was in warde at ful age his landes or to a bishopp his temporalties although he make no mencion of knights fees or auousons yet all passe therwith for like as the kinges seisine in suche case is by these woordes omnia terra et tenementa without speakinge of fees or auowsons euen so being sued out of his handes by these woordes omnia terre et tenementa Liuerie p. 7. T 16 E. 3. p. 30. fees and auâ—wsoÌ„z do passe without making any mencion thereof And this appeareth .5 E. 3. .16 of the same king Where after the death of an ydeot the king rendred againe the lands to the heire not making meÌ„tion of fees or auousons yet he had them And likewise 41. et 44. E. 3. the kinge graunted the temporalties to one that was elect bishop before he was coÌ„secrat H. 41. E. 3. f 44. E. 3. f. 22. aiudged that fees aduousons passed wtout making any meÌ„cion therof yet at the time of the graunt he was not bishop for he lacked consecracion And the reson in all these cases is for that the king was but seised in another bodies righte and by his liuerie he geueth nothinge vnto them but only restoreth theÌ„ to their right they had before Like law should it appere to be by Finchden .29 E. 3. H. 29. E. 3. in Fitz. ti Quare impedit p. 190. If auousoÌ„ of a church be appeÌ„daÌ„t to a Priorie which Priorie is seised into the kings haÌ„ds by resoÌ„ that an alieÌ„ is patron of it afterward the king dimiseth the saide Priorie cum pertinenÌ„ not makinge mention of thauouson vnto the saide Prior yelding a rent to haue to hold the same during the warre And his reason is this for that the right freehold in this case remaineth still in the Priour notwithstandinge any such seisin the kinge is but to haue an annuel profit therof no right but if anye bee to sue dower or liuerie with a particion out of the kinges haÌ„des they by that cannot haue thauouson if mencion be not ther of made no more than they can that claim by Graunt and yet the king rendreth them the thing in respect of a right be fore as he doth in the other cases But what then they claim not the whole lande that is in the kinges hands but only parcell therof then thauouson euermore abydeth with that that remaines if expresse mencion be not made therof and so not like the cases before where the king makes liuerie of the whole And this case appeareth also in the said booke of 5. E. 3. And note
them before hee bee attainted the sale is goode Forfeture 30. 30. H. 6. f. 5 38 E. 3. fo 37. Corone 290. et 285. but for landes it hathe relacion to that daie of the felonic committed be it that the attainder bee by verdite or vtlarie as it appereth .38 E. 3. et 30. H. 6. or be it that he bee attainted without proces of law as in the cases aboue remeÌ„bred where he is killed in the fleing as appereth 3. E. 3. And note that if thattainder and the office found of his landes be both wtin the yere of the felonie first coÌ„mitted that it shal haue no relacion for that yeres profites otherwise it is if it be after the yere as it appereth 3. E. 3. This boke must be vnderstaÌ„de as I take it where the attainder the office be before any daye of paymeÌ„t within that yere The words of this chapiter be further Et si ipsi habeant liberuÌ„ tenÌ„tuÌ„ tunc illud statiÌ„ capietur in manum domini regis et rex habebit omnes exitus eiusdem per vnum annuÌ„ et vnum diem et tenementuÌ„ illud vastabitur et destruetur de domibus boscis et gardinis et aliis quibuscunque ad predictum tenementum spectaÌ„tibus It should appere by Glanuile in the beginning of this chapiter that the common law was as much before the making herof in all cases of feloni sauiÌ„g for theft in which in the king had no yere and daye Howbeit after Glanuiles time the statut of Magna carta was made which sayd in the 22 chapter therof Nos non tenebimê° terras illorum qui conuicti fuerint de felonia nisi per vnum annum et vnum diem et tunc red dantur terre ille dominis feodorum By this it should seme this statute doth remitte the wast because it speaketh nothing of it or ells perauenture you will saye that this word Nisi argues and proues that the kinge before the statut of Magna carta might haue holdeÌ„ it as longe as he would but to the coÌ„trarie of that exposition is Glanuile as it appereth before And also Bracton which wrote somwhat after this tyme For by Bracton in his second boke it appereth that before the making of the sayd statut of Magna carta the king had nothinge els but the wast and to th entent he should remitte the wast the yere and day was afterward geuen to the kinge For these be his words in the title of Vtlarie Si vero terraÌ„ liberam habuerint vtlagati statim capienda est in manum do mini regis et tenenda per vnum annum et vnum diem ad capitales dominos post terminuÌ„ illuÌ„ reuersura si de alio tenuerit quaÌ„ de rege si auteÌ„ de rege tunc erit Eschaeta ipsius regis et hoc veruÌ„ est quod per taleÌ„ terminuÌ„ remanebit in manu do mini regis nisi ipse capitalis dominus vel alius fineÌ„ fecerit protermino regi habendo fed quesit causa quare terra remane bit in manu domini regis videtur quod talis est quia reuera cuÌ„ quis fuerit coÌ„uictus de aliqua felonia in potestate domini regis erit prosternandi edificia extirpandi gardina et arandi prata et quoniaÌ„ huiusmodi vrge bantur in graue daÌ„num dominoruÌ„ pro coÌ„muni vtilitate prouisuÌ„ fuit quod huiusmodi dura et grauia remanerent et quod dominê° rex propter hoc haberet coÌ„moditateÌ„ totius terre illius per vnuÌ„ annuÌ„ et vnuÌ„ dieÌ„ et sic omnia cuÌ„ integritate reuertereÌ„tur in manus capitaliuÌ„ dominoruÌ„ nunc auteÌ„ petitur vtruÌ„ .6 finis pro termino et similiter pro vasto Et noÌ„ video rationeÌ„ quare nisi quod terminus bene poterit esse per se sine vasto eo quod fugitiuus et vtlagatus non soluÌ„ delinquit erga euÌ„ qui sequitur et appel lat sed erga regeÌ„ cuius paceÌ„ infriÌ„git contra fideÌ„ suaÌ„ cui tene tur quia quilibet cuÌ„ faciat sacrameÌ„tuÌ„ iurat salua fide domini regis Thus our autors agre not vpoÌ„ this yere day for Bracton is contrarie to Glanuille that wrote before him Howbeit BrittoÌ„ which was likewise before the makiÌ„g of this statut of Prerogatiua agreeth with Bracton as it appereth in his boke fo 14. adding further that the kinge shal not haue the yere and day of land that is holden only for terme of life or yeres or by freshe disseisin or in fee ferme or in mortgag And so is Bracton also therw t agreing in his secoÌ„d boke but now sins the time this statut of prerogatiua was made which geues the kinge as you may perceiue bothe the yeare day the wast And first he saieth quod rex habebit omnes exitus eiusdeÌ„ per vnuÌ„ annuÌ„ et vnuÌ„ dieÌ„ By this it should appere that the kynge should not haue the issues of the land but by a yere a day but yet it is clere that he shal haue the issues also from the time of the felonie done vntil the time his highnes hath had the yere day wast not the lord allowing that that is to be alowed for the finding of the prisoner for it can not be inteÌ„ded that the lord shoulde haue the meane profits because the laÌ„d shal be deliuered vnto him wtout profit that is to saye wasted destroyed 3. E. 3. in Fitz ti Corone 290. 49. E. 3. fo 1â— And therw t agreeth the boke in 3. 49. E. 3. And there it appereth that if an office be fouÌ„d 20. yeres after the attainder the kinge shal haue the profites from the time of the felonie coÌ„mitted vntill the yeare and daye next after the office founde For though the lord be entitled to haue theschete yet the kinges title for the yeare daye and waste goeth beefore the lordes For the wordes bee Postquam dominus rex habuerit annum diem et vastum tunc reddatur tenÌ„tum illud capitali domino Also by this woorde Reddatur it semes the lord can not enter intoo his escâ—ete after office found but is driuen too sue an ousterle main for the same out of the kinges handes as it appereth 8. 8. E. 2. in Fitz ti Trauers Pl. 48. E. 2. but if a stranger abate before office the lord shal haue a writ of eschete against him and recouer and yet that notwithstanding when an office shal be founde afterwarde the kinge may seise for the yere daye and wast and shal be aunswered of the mesne profytes like as it is when the kinges tenant in chief dyeth his heir of full age an estraÌ„ger abateth the heier maye haue assise of mort dauncestore if he will and recouer against the abator and yet vpon an office found afterward the kinge shall seise for primer season and be answered of all the meane profites and the heir
driuen to sue liuerie Further then let vs see in what cases the kinge shall haue annum diem et vastum and in what not The kinge shall not haue annum diem et vastum of clerks coÌ„uict after verdit because hee forfetes no land Like lawe is it of lands in Gauelkinde where the father is hanged but otherwise it is if he be outlawed or abiured for felonie for there the kinge shal haue the yeare daie wast and this appereth 3. 3. E. 3. in Fitz ti corone P. 332. et Prescription P. 50. E. 3. et 8. E. 2. If the husband be atteinted of felonie the kinge shall haue the yeare daye and wast of the laÌ„ds of the wife and yet in the case the lordes shall not haue theyr eschetes But what then the husbaÌ„d might haue done wast and the wife had had no remedie for the same and by the same reason the kinge maye doe as much and this appeareth 3. 3. E. 3. in Fitz ti corone P. 327. E. 3. And also in Bracton in his second boke And also it shoulde there appeare that the wiefe is driuen to sue anouster le main after the death of her husbande If one be arested for felonie brekes the arest so that in the pursuyt of him he is killed because hee woulde not otherwise be taken 3. E. 3. in Fitz ti Corone P. 312. et 290 et 308. the king in this case shal haue the yere day and wast as it appereth 3. E. 3. If a man coÌ„mit felonie and hathe his charter of pardon yet the king shal haue the yeare day wast and the lordes theyr eschetes this appereth 3. E. 3. for the pardoÌ„ doth not restore him but to the lawe For though the kinge would pardon him with words of restitucion yet his grace could not therby restore him to the laÌ„ds holdeÌ„ of other And note that the king shal haue the yere 3. E. 3. in Fitz ti Corone P. 310. day wast of laÌ„ds in ancieÌ„t demesne if it so be that the tenaÌ„t myght haue sold the said lands against the will of the lord as it appereth 3. E. 3. and that notwtstanding that the sayd lands were alwayes vsed to be surrendred by the rodde to passe by surreÌ„der The words of the statute be further Exceptis hominibus quoruÌ„daÌ„ priuilegiatoruÌ„ indâ— ê‘regeÌ„ 46. E. 3. f. 14. 1. H. 6 fo 12. M. 8. H. 4. f. 1 Corone 31. That is as much to say except such as haue Bona et cattalla felonuÌ„ by the kynges graunte for a man can not prescribe to haue Bona et catalla felonuÌ„ as appereth 46. E. 3. 1. H. 7. 8. H. 4. nor none may haue this prerogatiue of yere day wast but only the kinge although hee would claime it by charter froÌ„ the kinge or otherwise as it appereth 3. E. 3. But when the king is seised of it he may coÌ„mit it ouer as appereth by Bracton in his sayd 2. boke But if the land wherof the kinge should haue the yere day and wast be vnder the yerely value of iii s .iiii. d it is vsed to bee remitted for the smallnesse and simplenesse of the thinge as appereth 3. E. 3. 3. E. 3. in Fitz ti Corone P. 327. for it shoulde cost more the suing of it out of the kinges handes than the thing is worth And note the custoÌ„e of Gloc ' comprised in this statut wherby it should appere that notwithstanding any such custome yet the king should haue annuÌ„ et dieÌ„ but not so of laÌ„ds in Gauelkinde as I haue sayd before ¶ Proces to bee sued after the deathe of the kinges tenaunt in chiefe By a statute made in the 33. yere of the late kinge of most famous memorie H. 8. the 22. chapter it is ordeined and prouided amoÌ„ge other things that no person or persons hauing lands or tenemeÌ„ts aboue the yerely value of fiue poundes shal haue or sue any liuerie before inquisitioÌ„ or office fouÌ„d before theschetour or other commissioner or commissioners by vertue of the kinges writ or commission too bee directed out of the kinges chauÌ„cerie or other courtes hauing authoritie to mak suche writes or commissions for suinge of liueries which writs or commissions shal not passe out of the chancerie nor any other courts but by a warrant or bill too bee assigned and subscribed with the handes and names of the master of the kinges wardes and liueries surueiour of his liueries or the attourne and resceiuor of the court of the wardes and liueries or three twoo or one of them to bee directed deliuered to the chanceller of England or to any other chanceler or officer hauiÌ„g power to awarde such writes And if the lands or tenements wherof any inquisition is to be had by vertue of any such writ or commission excede the yerely value of fiue poundes that then such as sue for such writes and commissions shal pay for the seale and writing therof such fees as hath ben accustomed And if the sayd laÌ„ds tenemeÌ„ts wherof any such inquisicions and offices ar to be found by vertue of any such writ or commission excede not the sayde yerely value of v pounde theÌ„ such as shal sue for such writs or commissions shall paye for the seale of euery of them vi d and for the writinge vi d and not aboue This statut doth not set fourth the name of the writ or coÌ„missioÌ„ that shal bee sued howbeit these words that follow that is to sayr for suinge of liueries do somwhat open the minde of the makers of this statute and declare that their meaninge was of the diem clausit and such other writs or coÌ„missions as serue for that purpose and not of euery writ or coÌ„missioÌ„ for so might an office be found by a wroÌ„g writ or coÌ„missioÌ„ which should want mater or be other wise insufficient to make liueries But learne and enquire if after a good writ or coÌ„missioÌ„ sued fourth the office that is found is not sufficient whether the partie shal haue his liueri or not without suing a melius inquirenduÌ„ or a new office because that some parauenture wil say that the words of the statut be performed that is to wite an office or inquisition is found But to that it may be answered and sayd that that it is no office when it is insufficient at least wise toward the partie that should sue liuerie therupon although it be a good office toward the kinge if any thing therin conteined be for his benefit And learne also if the kinges tenant dye seised of landes in diuerse counties whether by force of this statut he shal cause an iÌ„quisitioÌ„ or office to be fouÌ„d in eueri couÌ„tie where the lands lye for so is it vsed to be done vpoÌ„ al general liueries he that sueth his general liuerie otherwise missueth the same and is an intruder vpon the kiÌ„gs possessioÌ„ howbeit peraueÌ„ture you wil say that
that hath but a chatell shall not be receiued in anye case to falsifie the record that geueth any man interest in the freehold although he be a straunger to that record Contrarie lawe is it of him that hathe a freeholde or inheritaunce in the lande for they shall trauerse the recorde in suche case Lyke lawe is it where the kynge is entitled but to the wardeshyppe of the heire of his tenaūt hee that is fermer of the dimise of a straūger shal not trauerse hys office althoughe the king be not entitled thereby to anye freeholde for it was not the minde of the makers of these statutes to helpe them that clayme but chatels which are accompted in law as nothing because they perishe and abide not Et de minimis non curat lex Howbeit learne what the law wil in these cases for I haue seene noe bookes of them The lorde in title of wardshyppe shal trauerse the office and yet hee claymethe but a terme of yeares in the lande as where it is founde by office that such a one helde lands of the king in chief and dyed his heire within age where in deede he holdeth no suche lande of the kynge but onelye of mee by knightes seruice in this case I that am lorde shall trauerse this office that is to saye shewe howe they bee holden of mee by knightes seruyce without that they be holden of the king as appereth in 1. H 7. Trauers 20. For ther it toucheth the lords inheritance in the righte of his seignory because he by the false office is to lose the profit that is presently fallen by reason of his seignorie it is reason he be receaued to trauerse the office But if hee were but lorde in socage he shoulde not be receiued to his trauerse because he therby can make no title to the wardshippe of the body 37. lib. ass P 35. and landes of the childe for it is a good generall grounde if the kynge be once seised his highnes shall reteine against all other that haue noe title notwithstandinge it be found allso that the kynge had no title but that the other had possession before him as appeareth in .37 lib ass where it was found that neither the kinge nor the partie had title and yet adiudged that the kynge shoulde reteine for thoffice that fyndes the kyng to haue a right or title to entre makes euer the king a good title allthough it bee false and his highnes therby maye take possession against any other that is seised of the landes and reteyne vntill such time as thoffice be trauersed by him that hath title and tried to bee a false offyce And therfore no man shal trauerse thoffice vnlesse he make him selfe a title And if hee can not proue his title to be true allthoughe he be able to proue his trauerse to bee true yet this trauerse wil not serue him As for an exāple it is foūd the kyngs tenaunt died seised of certayn lands that he held of the kynge in chiefe his heire beeinge within age where in dede he had made a feffement in his life time to an other of those landes it is no trauerse for the feffee to say he dyed not seised but he must first make him selfe a title by the feffement and for asmuch as it is founde that the landes are holden in chiefe if he wyl make his title good againste the kyng he must shewe fourth a lycence of alienation or a dispensation therof or els hee muste trauerse the tenure in chiefe as well as he shall doe the rest of thoffice otherwise his tytle is not good Trauers P. 44. et 46. Liuerie p. 18 as it appearethe in .36 E. 3. 3. H. 4. 6. H. 5. .3 H 7. f. 14. Howbeit Hussey holdeth opiniō that not mā may trauerse the tenure but the lord or the heire vnlesse his title be found by office but whether the lawe be so or not learn for as I take it the lorde and euery straunger that hath a tytle againste the kynge makinge his title shall trauerse the office before his title be found by office for when the trauerse is found for the partie his title nowe appeareth of recorde and by the trauerse found the office which was the kings title is vtterly destroyed gone so that now the king is not to make any liuerie of the lands to any person but onely to a moue his hands from the same with the meane issues and profites as one that had no cause to seise them And therefore euery man may enter now that will if he haue right or title of entrie to the lands for the king deliuereth them to no person certaine but onely ryddes his own hands of them as he that had neuer seised thē but otherwise it is where the king is to make liuerie for there his highnes must bee enformed certainly by mater of recorde who shal be his tenāt whoe it is that ought to receiue the liuerie at his handes least his highnes be deceiued in thadmitting of his tenant which ys ought to be a great mater towarde the lord therfore the cases be not lyke wherfore I think a man may trauerse by force of these statutes without hauing their title first found by office so be our bokes .36 E 3. 2. E. 4. f. 10. 16. E. 4. f. 4. Trauers 44. 43. li. ass P. 20. Howbeit 5. E. 4. fo 5. semes to weye to the cōtrarie hereof 12. H. 6. also where it is sayde that if it bee found that the kings tenāt died seised wher in dede he was iointly enfeffed with me now can I not trauerse this office except an other office were founde for me But contrarie lawe should it be if it had ben foūd by the office iointenant with hym for term of life wher in dede I was iointenaunt with him in fee simple in this case I may traūse thoffice because mētiō is made of me in the sayd office this boke case admitted to be law yet it varieth frō the case before remēbred of the strāger that trauersed thoffice for here thoffice is true and when it is found by office that he died seised this maye be allthough the sayde dying seised were iointlye with an other for any thynge that is expresselye founde to the certaintie and then the king here is to admit an other tenant as in the case of the liuerie before of whome as yet he hath no credible informacion that is to saye by mater of recorde and then it is lyke to the cases of tenant by the curtesie tenant in dower and the deuisee which in no wise can be admitted to their estats vnlesse mention be made of them in the office or some other office or mater of recorde found for them 9. H. 7. fo 24 Brief 618. as appearethe in 46. E. 3. M. 11. H. 8. and for none other reasō as I gather it but onely for that thoffice is
true they are to be admytted the kings tenants which can not be but by informacion by mater of recorde vt supra Then let vs resorte to the place we were at before that is to say no man may trauerse with the king vnlesse he make himselfe a good perfecte title as to say that the tenaunt whiche is supposed to dye seised did enfeffe hym or that a straunger was seised and did enfeff him without that that hee dyed seised And so note by the waye that he may conuey hys title aswel froÌ„ a straunger as from hym that is supposed to dye the kynges tenaunt as appearethe in .36 Trauers 44. Ed. the thirde and when he hath made thus his title then he must trauerse the kings title which is thoffice for it is not ynoughe for him to rest vppon his owne title al thoughe it be neuer so strong without aunsweryng the kinges title yea although it were good againste a comon persoÌ„ yet against the king it is not so wtout trauersing the office And therfore if he wil say that the tenaÌ„t in his life time did leuie a fyne vnto him of these lands Sur conusaunce de droit come ceo quil ad de son done by vertue wherof he was seised vntil such time as he was put out by this office praieth restitutioÌ„ this is no ple against the king yet this mater were a good plee in assise of MortdauÌ„cester brought by the heire for in that case he shoulde be stopped by this fine whiche is executed to say the contrarie therof that is to say that his father dyed seised without shewing howe his father gotte the possession againe sins the time of the fine leuied But yt ys no plee against the kinge for the kinge can not bee estopped namely in this case beeinge a straunger to the recorde And also the statut geues a trauerse and by this maner of pleadynge he takethe no trauerse Lyke law it is if it be founde by office that the kyngs tenaunt in chiefe enfeffed one B. without lycence comes one D. and sayeth that he dyed seysed ê‘ 46. E. 3 in Fits titulo Trauers P. 17. and his heire entred and enfeffed him by the kynges lycence this is noe plee without trauersing the feffemeÌ„t made to B. and yet against any comon persone it were a good plee but not against the king for his title must bee aunswered fully and that is the feffemeÌ„t these cases appeare 46. E. 3. 43. li. ass P. 25. Also it is not sufficieÌ„t to trauerse one of the kynges titles but he must trauerse them all for though the kings title that he is seised by be found not good yet if ther be any other record that makes the kinge a title wherby he may retayne the landes the partye must auoide also that title or els he gettes no Ouster le mayne but learne if ther be no suche recorde in Esse or beinge at the time of the trauerse tended hanging the plee vpon the trauerse a new recorde that sâ— to say an office is found which entitleth the kyng whether in this case the ê‘tie shal be driueÌ„ to trauerse this office or not ere he haue his Ouster le maine And it semeth he shal not for so he might be delayd of hys possession infinitlye by finding one office after an other wherfore this office found hangyng the trauerse shall be accompted in law as though it had bene founde after the partye had hadde his Ouster le maine in which case then the partye vpon the first trauers founde for hym shal be restored to his possession by an Ouster le maine and then after vpoÌ„ a Scire facias sued against him to shewe why these landes shoulde not bee reseised vppon this new office found for the king he shal be receiued in that Scire facias to trauerse this newe office Howebeit this auantage he winnes hereby that is to say he then trauerseth with the king keping still his possession where else he should trauerse being still out of possession And this case ye may finde .11 T 11 H 4. et M. 13. H. 4. Thus may ye see when a maÌ„ trauerseth with the king he must trauerse all the kings tytles that haue then their being by matter of recorde and is not bounden any further to answer for that tyme. Then let vs see howe the kinge shall replye vntoo this trauerse and in that it is to bee noted that the kinge hath a prerogatiue that a common person hathe not for his highnes maye chose whether hee will maintaine thoffice or trauerse the tytle of the partie and so takes trauerse vppon trauerse or when all his tytles bee trauersed his highnes maye choose to mainteine them all or else but one of them But then note that if hee mainteine but one that is to saie take issue but vppon one whiche is founde with him that tended the trauerse in this case the partie shall haue his ouster le main notwithstanding there bee no issues taken vppon the other titles but whether the kinge shall euer take auauntage of thother titles after or not this is to be sene and I thinke hee shoulde for though the other titles shall not in this case let the partie of his Ouster le mayne yet it seemes the kinge maye call the partie againe by a Scire facias to aunswere his other titles or else his highnes to reseise as I saide beefore for no nient dedire can preiudice the kinge nec tanta remun eratio like as it may doe a comon person And therfore seeinge hee did not renounce his other titles openlye nor expressely it seemeth his highnes by his prerogatiue shall haue aduauntage of them at anye other tyme when it shal bee his pleasure Trauers 15 And these cases ye maye see .13 Ed. 4 fo 8. 9. Hen. 4. et 4. H. 7. f. 4. Howebeit it appeareth in the saide booke of .13 E. 4. that after the kinge ioineth an yssue vppon a trauerse his highnes cannot in an other tearme wayue this issue and take a newe for so the partie might bee delaied infinitely of his right whiche shoulde bee as it were a wronge committed vnto the partie and the kynge by his prerogatiue maye doe no manne wronge but after issue ioyned hee maye demurre in lawe and waiue thissue for there is noe matter chaunged but the olde remainethe And by the demurrer the lawe presumeth that thissue was misioined and so myght bee a ieofaile and therefore his highnes maye demurre in lawe after issue but not change his issue and take a newe And note that if the partie take a trauers whiche is iudged insufficient in the lawe thys is peremptorie vnto him Trauers 24. he shall not bee receiued after to take a newe as it appeareth .40 lib. Ass Howebeit .14 E 4. fo 1. the contrarie oppinion is holden and that it is not peremptorie because it procedeth in the Chauncerie which is the court of conscience
of certeine lāds which in deede are my landes and theschelour by force of that fals office takes the profites in this case I maye disturbe hym without trauersinge thoffice And those cases appeare .4 Edwarde .4 fo 24. 13. Edward .4 fo 8. T. 9. H. 6. fo 20. M. 47. E. 3. fo 26. Then further The woordes of the saide statutes of anno 36. bee that if anye came before the Chanceller and shewe his right whereby it may appere by good euidence that hee hathe an auncient righte and good tytle then the chaunceller shall let the saide landes to the partye that tendeth the trauerse yeldinge to the kinge the value if it bee aiudged for the king in maner as hee and the other Chaunceller haue done before him by theire good discretions so that hee to whome it shal be letten finde suretie to doe no waste or destruccion beefore the trauers bee discussed By the woordes of this statute it shoulde appeare that the Chauncellours before this time by theire discrecions hadde vsed to let the landes to the partie to ferme Quare impedit p. 34. and that is true for the kinge vsed so to doe vppon a peticion whiche was made to his highnes by the order of the common law in steede of a trauerse nowe vsed as appeareth 5. Edward 3. Trauers 12. and therefore I thinke his highnes may do so at this day bothe vpon a peticion and a Monstrance de droit although the statute make no mencion thereof for so it was vsed to doe by order of the common lawe as it appeareth by the booke before And of this matter see the booke .3 Henrye .7 Now is this statut amplified and made plainer in thys point by the statute made in the .8 yeare Henrie .8 the .26 chapter whiche will that no landes or tenementes seysed into the kinges handes vppon enquest taken before eschetours or commissioners bee in anye wise graunted or letten to ferme by the Chaunceller or Tresorer of Englande or anye other the kinges officers till the saide enquestes or verdites bee retourned fullye intoo the Chauncerie or theschequer but all that time shall abide in the kinges handes and by a moneth after the saide retourne if it bee not so that hee or they that feele themselues greeued by the saide enquest or that are put out of theire landes and tenementes come into the chauncerie and offer to trauerse the saide enquestes and to take the saide lande or tenementes to ferme whiche if they doe then the saide Chauncellour Tresorer or other officer shal let them haue them to ferme shewinge good euidence prouing theire trauerse to be true accordinge to the forme of the statute of an .36 E. 3. to holde till the issue vppon the saide trauerse taken bee founde and discussed for the kinge or elles for the partie and also fyndynge sufficient suertie too pursue the saide Trauers with effecte and to render to the kinge the yearely value of the tenementes whereof the trauerse shal bee so taken if it bee discussed for the kinge And if anye Letters patentes of anye landes or tenementes bee made to anye other parson to the contrarie then the same to be void after the moneth Hereuppon is to bee noted that the shewinge of the euydēce is onelye rehersed to the lettynge of the landes to ferme not to the trauerse For by this statute hee maye trauerse without shewinge anye euydence but not haue the landes to ferme Also by these Statutes hee is not bounde to noe certeine tyme for takinge of hys trauers but onelye for takinge of the landes to forme for hee maye tende hys trauerse when hee will so hee desire not the ferme of the lands But if hee will haue them to ferme hee must tend his trauers within the moneth as appeareth P. 13. E. 4. fo 8. and nowe by the statute of anno 1. H. 8. ca. 9. hee hath three monethes libertie to doe it Also note the thinges that he must fynde suertie for that is to say to sue with effecte to paye the rent after the trauers bee discussed and to doe no waste or destruccion In this woorde rent is emplyed all the arrerages of the rent that shall encurre meane betwene the takynge of the ferme and the discussinge of the trauerse and yet it is not so expressed Also the lease that is made to hym that tendes the trauerse is not of anye terme certeine but onelye by these woordes Donec discussum fuerit for the woordes of the statute bee so and therefore as soone as the trauerse is founde againste him that tendeth it by and by the lease hee hadde in the landes by force of the Statute is voide as apperethe in .4 Edwarde the .4 folio .29 wythout anye further proces Howbeit forasmuche as the woordes bee to holde till the issue vppon the saide trauers taken bee founde and discussed for the kinge or for the partie I woulde learne if the partye bee nonsute vppon hys trauerse or that the trauerse bee aiudged againste him vppon a demurrer in lawe whether the lese shoulde bee voide or not like as it shal bee vppon the issue founde And it seemes it shal bee by the woordes comprised in the saide statute of anno 36. Edwarde .3 But not by any words comprised in the saide statute of an .8 H. 6. For the wordes bee tanque il soit aiudge and therewih agreeth the booke in 4. H. 6. fo 12. Also note that before this statute of anno .8 H. 6. the kynge did vse to graunte the custodye bothe of the landes and body to anye other to whome hee woulde after office and beefore anye trauers tended and this graunt was good because it was not then restrained by any statute Howbeit vppon the trauers tended a Scire facias shoulde haue beene awarded against the patentee comprehendinge in the same all the trauerse And if he had beene retourned warned and came not his patent had ben voide eo facto as appeareth in the saide booke of .4 Henrye .6 at least wise for the landes and yet there was then no estatute that made them voide quod nota And then by and by they shoulde haue beene letten to ferme to him that hadde tended the trauerse But nowe whether since the makinge of the saide statute of an .8 Henry the .6 fo 17. a Scire facias shal bee awarded against the Patentee vppon a Trauers lerne for the saide statute makes suche letters patentes voide for the graunt of the landes but not so for the bodye and therefore it seemes a Scire facias shal bee still awarded and the graunt also of the saide landes is not voide till after the moneth H. 8 H 6. 17. 5. E. 4. .3 .5 M. 14. E. 4. 1 And nowe by the saide statute of anno .1 Henry .8 not till after three monethes and so it shoulde seeme by the booke of .5 and .14 Edwarde .4 and 8. Henry 6. that a Scire facias shal bee awarded at
notwithstandinge thoffice for it did not appertaine to mee to trauerse thoffice and discharge the tenure but that matter was left to my tenant to doe and seeinge hee did it not hee hath charged him selfe of a tenure by way of conclusion to the kinge as well as to mee but it is not so in the other case Also it is to bee noted that if the kinge seise landes in title of Wardshippe and make a feffement thereof in thys case the heire neede not to sue his peticion but may haue a scire facias to repele the said letters patents because the king was deceiued in his grant as it appereth T. 7. H. 4. fo 17. M. 21. E. 3. fo 50. For there the king himselfe is in possession still till liuerie be made so the heire there hath no cause to sue by peticion the kinge is bounde to deliuer it vnto him in whose right he seised Also note that sute by peticion can be to none other than onely to the king for no such sute shal be made to the Quene or to the lord prince for these parsonages haue no such prerogatiue as it appeareth 10. 11. Trauers 51. H. 4 et 10. et 14. E. 3. but though the kinge hee seised sometime in an other bodies right and not in his own Peticion 4 Voucher 135. Scire facias 135. yet the sute that is to be made must bee by petition as well as if hee were seised in his owne right as appereth .10 H. 4. And as I said in the beginning a manne shall haue his peticion for goods as well as for landes as where theschetour seyseythe goodes of one that is outlawed and hathe accoumpted for them in the Eschequer and after thutlagarie is reuersed in this case the partye hathe no remedy for his goods but onelye by peticion Peticion 8. And this case you shall see in .34 H. 6. Howbeit Catesby Hussey hold oppinion to the contrary here of M. 1. Peticion 10 H. 7. And learne if a peticioÌ„ be sued for lands and the plaintife be nonsute whether it be paremptorie or not beecause some saye that that sute is as it weare hys write of righte PeticioÌ„ 11. et 17. and hereof see the booke 11. H. 4. .3 H. 7. ¶ Where a Scire facias must be sued before a lyuerye or Ouster le maine IF the king be seised of a ward and grantethe yt durante minore etate now when the heire commeth of full age and sueth his general liuerie he nedeth not to sue a Scire facias against the pateÌ„tee because his estat is determined by the ful age of the heire and yet it may be that the heire had forfaited his maryage vnto the patentee and then hee hathe good cause to reteine the lande til he bee satisfied of the forfaiture But the lawe shall not entende anye suche forfaiture to bee and therefore ther nedeth no Scire facias be sued Like law is it as semeth if the king graunt the wardshyppe for no time certaine but quamdiu in manibus nostris fore contigerit if he make a special liuerie vnto the heire beeinge within age there needed no Scire facias to be sued so is it where the grant is but dutante beneplacito nostro but if the kyng haue land in ward and enfeffeth therof a strauÌ„ger some think the heire nedeth not to sue any Scire facias against the feffee but at his pleasure and some other thinke he muste beccause his estate is not determined by the full age of the heire as it is in the firste case I put before And it may be that an auncester collaterall vnto the childe hath released with warrantie whiche is descended which the feffee might pleade if he came in by Scire facias or els by the liuerie she saide warrantie is vtterly lost these cases appeare P. 7. H. 4. f. 27. 30. 43. 10. M. 12. E. 3. 50 2. H. 7. f. 2 H. 6. f. 20 M. 1. H. 7. f. 11. .5 E. 4. f 3. Howbeit me thiÌ„ks it were wisedome for the heire to sue a Scire facias to th entent that he therebye with the kinges helpe mighte repelle the sayde letters pattents and bringe them as it were out of his way whiche thinge hee may â—oner bringe to passe by the kinges sute than by hys owne Allso the heire when hee sues liuery nede not to sue anye Scire facias againste him that hathe the landes to ferme vppon a trauers as appearethe in 1. H. 7. Liuery P. 18 for hee hath noe terme certaine in the land but donec discussum fuerit whiche woordes are beecome voyde after the heire is of full age because it can not be then discussed with oute preiudyce of the heire and therefore voyde Then further let vs see wheare hee that sueth by peticion or that tendeth his trauers or Monstrans de droit shall sue a Scire facias and where not And as to that it is a generall rule that yf the kynge haue graunted the wardshyp of the landes ouer for any terme certaine or granted any other certaine estate in the landes he that sueth his peticion Monstrans de droit or trauerse muste sue a Scire facias againste the kinges patentee in suche case Trauers 25. but hee nedeth not to sue any agaynste the heire in whose righte the king is seised of the lande because he that sueth doth not pleade withe the heire but onelye with the kynge or such as hathe his intereste as appeareth in 37. lib. ass Like law it is if the kyngs grant be but durante beneplacito nostro or that it bee made hangynge the trauerse peticion or Monstrans de droit in this case hee that suethe neede not to sue any Scire facias And these cases appeareth in 5. E. 4. f. 3. 13. E. 3. Brief P. 260. And note that if the kynge graunt the wardshippe to one whiche graunteth it ouer to the husbande and to his wife then must there a Scire facias be sued bothe againste the seconde lessee and the patentee but the wyfe nede not to bee named in the Scire facias For there lyethe no voucher in this Scire facias Howebeit in a writ of garde she shoulde haue bene named but also of the voucher Brief 618. and this case is adiudged 46. Edwarde the thirde and yet neuerthelesse Neuton is of oppinion in S Henry the sixte f. 17. that no Scire facias shall bee awarded againste the lessee in this case but onelye against the kings patentee And learne if the kinge grant but the bodie alone whether there nede anye Scire facias to bee sued or noe Also note this case that is to say where the king seised forwardshippe beefore office and made a graunt ouer and after office was founde wherbye it appeared that the childes father in whose right the kinge seised Assise P. 156 was but tenaunte for terme of life the
the thing yet is he not in possession of the profit therof vntill such time as his highnes actually by his officer when it falleth taketh and perceiueth the said profit as for example The thing that king is entitled vnto by office is no land but auowson rent or a comon although that the kinge by this office be patron of thauouson or owner of the rent or comon and therby when the benefice becometh voide may present or when the rēt daye cometh may receue the rent or when the comō is to be takē may vse the said comō yet if the office that entitleth his highnes be false and he that was in possession at time of the office take the profite when it falleth before the kinges officer do take it in this case this takinge is no entrusyon vpon the kynges possessions for he was neuer seysed in deede wherefore being driuen to his accion if his highnes bringe his Quare impedit or accion of trespas the defendant maye trauerse the office with him in the said actions keping still his possession and neede not too sue in the chancerie for the trauersing of the same This maye you see a Difference beetwene a thinge that is manuel and a thinge not manuel and what the reason therof should bee learne for as I. suppose the reason of it is no other but as I sayde before that when a straunger is tenant at time of the office findynge the office maketh no possession in deede in the kinge beefore an entrie or a seiser And then when the kinges officer taketh not the profites when it falleth but suffreth him that was in possession to take it then was the kinge neuer seised but he still remaines in possession that was possessed at the time of the finding of the office vntill such time as seiser bee made for the kinge which can not bee done at all times as it maye bee of land but onely at such times as the profit therof is too bee takē that is to saye when it fallethe and that is nowe past for this time seynge it is allredy taken and therfore the kynge in that case is driuen too his action But quere whether his highnes may bee brought in possession in those cases by a clayme or not And these cases maye you seee in the bokes of .17 E. 3. f 10. 21. E. 4. f. 1. 5. E. 4. f. 3. et 4. E. 3. 15. H. 7. f. 24. Quare Impedit P. 33 Like law is it where an office is found which doth not entitle the kinge to the possession by entrie but onely by action as where it is found that the kinges tenant for terme of life or yeres hath done wast or being his tenant in fee simple hath cessed by ii yeres or made a feffemēt by collusiō contrarie to the statut of marlebrige or such like For it is a general rule that in al cases wher a comō person cannot ēter but is driuen to his action there the kinge can not haue the possession but by like action or ells by a Scire facias after office foūd in nature of the actiō for the office in the case entitleth the kinge to no other thinge but onlye to the action as appereth 21. H. 7. f. 1◠21. H. 7. fo 1◠But quere of a feffmēt that is foūd to be made by collusiō cōtrarie to the statute A. 34. et 35. H. 8. ca. 5. for in the case it semes his highnes may enter wtout Scire facias beecause the said statute apointes no action to be sued in the case And note that in al these cases before where the kinge is driuen to his Scire facias or other acciō if the office be false the partie maye trauerse the office with the king keping still his possessiō whether it be in the chancerie or in any other court nede not to sue any ouster le main if it be foūd for him because he was neuer out of possessiō Thē further let vs see in what cases the king can not be ētitled but only by office or other mater of record in what cases he may howbeit not to haue anye possessiō either in dede or in law vntil the time there be a seasure made And as to that note that in all cases where a comō persō can not haue a possessiō neither in dede nor in law wtout an entre there the kinge can not haue it wtout an office or such like mater of record as where the king hath title to enter for a mortmain or for a cōditiō brokē in this case the king can haue no title vntill such time as the sayd mortmain or cōdiciō broken be foūd by office or by some other record as it appereth 2. ◠9 H. 7. 2. H. 7. in Fitz ti proc P. 10. So it is in diuerse other cases concerning the kinges prerogatiue as in the case of Ideotes of lunatikes which haue lāds or tenemēts or when his highnes is to be ētitled for annū diē et vastū of persōs attaīted or for an alienaciō wtout licēce or to sese the tēporalties of a bishop for a contēpt in all those cases his title must be furst foūd by office or otherwise apere of record for these rights his highnes hath only as king But if his highnes haue cause to seise the lāds of his widow that hath maried her self wtout license his highnes maye seise notwtstandinge there be no office foūde of her mariage as it appereth in the new Natura breuiū f. 174 Learne what should be the reason therof more then in the case of alienaciō before Like law hath bene vsed where his highnes is to sese lands of priors aliens within this realme ratione guerre his highnes doth it without any office for in bothe these cases the kinges title is notorious enoughe althoughe it appere not of recorde But yet in those cases his highnes must seise eare he can haue anye interest in the lāds because they bee penal toward the partie and of these cases you shall finde bokes 49. E. 3. f. 17. 21. E. 3. fo 31. 21. H. 7 fo 7. 14. H. 4. fo 37. 22. E. 4. fo 4. 3. et 17. E. 3. fo 1. et 17. Other prerogatiues the kinge hath which extende onely to personal and transitorie thinges ad bona et catalla felonū wreke de mere tresour troue or the profites of landes of clerkes conuict of felonie or of persons outlawed in a personall action to these thinges it semes the kinge is ētitled although there be no office or other mater of record found of them as it should appere 11. H. 4. fo 39. 21. H. 7. fo 7. et 27. li. ass P. 50 And note that if the kinges title appere any way of record Gard. 1. 40. Ass P. 36 it is as good as if it weare found by office Therfore yf the kinges tenāt alien wtout licence which alienacion appereth by fine or other mater of recorde
in this case if ther bee an other record found that proueth the landes to be holden of the kinge in capite vppō these .ii. records together proces shal be made against the partie by Scire facias to come and shewe why he should not make a fine for the alienacion Like lawe it is where there is a record to proue that he that aliened is but tenant in taile of the kinges gift and he pretendinge to be tenant in fee simple doth purchace a licence of alienaciō and a lienethe and after dyethe without issue which deathe is founde by office but nothinge of his state taile or lycence appeareth in the sayde office yet vpon all these recordes laied together the king shal haue a Scire facias against the alienee to show why the land should not be seised in to his handes and his highnesse aunswered of the profites since the death of tenaunt in taile for when hee was but tenaunt in tayle it appearethe that the lycence was pourchased vpon false suggestyon and so voyde 40. li. assise in Fit ti Garde P. 1. and thenne the landes ought to reuerte to the kynge beecause hys reuercion coulde not bee discontinued And this maye yowe see 40. li. ass Then laste of all it is to bee seene whether the possession may bee taken from the kynge bye entrye or not And as to that yf the kynges possession bee by matter of recorde noe persone can dysseise hym or take the possession from hym for lyke as the kynge maye not take by gyfte from anye persone but by matter of recorde noe more maye the possession departe from hym but by matter of recorde and therefore his hyghnes cā not haue assise or Electione firme siue custodie lyke as a common persone maye yea and thoughe the entrie bee not immedyatlye vppon hym but vppon his committee or fermer yet it is noe disseisin to his hyghnesse as it appearethe 4. H 7. folio 2. M. 2. H. 4. M. 14. E. 4. folio 35. H. 6. in Fits titulo Suggestion P. 9. 2 M. 35. H. 6. folio 1 Bye the whiche sayde booke of 35. it also appearethe that if the kynge or hys commyttee bee cast oute of the wardeshyppe of the landes that the remedy is in thys manner that is to saye vppon suggestion thereof made in the Chauncerye there shal bee awarded a wrytte called Amoueas manum and that vppon a certaine payne whyche wrytte maye bee awarded onelye vppon this suggestion wythoute anye presentmente or enquirie and thys writte maye bee graunted to the committee as well beefore possession hadde of the warde as after for where the kynge was once possessed by office and grauntes it ouer yet this possession styll remaines for the kynge abydeth stil gardeyne notwythstandynge anye such graunt And therefore this writte of Amoueas sub pena lyethe for the grauntee or committee although the graunt be absque aliquo inde reddendo And if vppon this writte of Amoueas the defendant do not restore the thing then shall goe out againste him an attachement vpon which writ the defendant maye appeare and shewe his title which if it be founde agaynste him he shall then make restitucion by iugement and paye a fyne and aunswere the meane issues profites Thus dothe it appeare that the king cannot be disseised or eiected if his highnesse bee once seised by mater of recorde Otherwyse it is before his seisin bee by mater of recorde for if beefore office a straunger entre by title or without title this is no intrusion vpon the kinges possession but in this case the heire may haue Assise of mort dauncester againste the straunger if hee will whiche proues that by his entrie hee hath gottē bothe a freeholde and a fee simple But as sone as the office is founde and the eschetoure entreth this possession of the straunger whiche entred witheoute title is clerely vndone and the freeholde and the fee simple reuested in the heyre But if the entrie of the straunger weare by title and afterwarde office is founde and the kynge seisethe whether then it bee so or noe learne And it shoulde seeme to bee all one or els the kynges seisure is not good for howe can the kynge seise in an other bodyes ryghte if the ryghte weare taken awaye beefore by an entrie therefore it shoulde seeme eyther hys highnesse hathe noe title in that case to seise or els by his seisure the freeholde and the fee simple muste reuest in the heire But note that if the kynge wyll bye coloure of a recorde seyse an other mannes lande whiche recorde geeues him noe title in deede notwythestandynge anye suche seysure yet hee that hathe righte maye entre vppon the kynge and bye his entrie reuestes agayn in himselfe bothe the freeholde and fee simple as where it is foūd the kynges tenaunte dyed seysed but of an estate for terme of lyfe the reuersion to an other and thys notwythestandynge the kynge seisethe in this case if hee in the reuersion entre vppon the kynge this is a good entrie and therefore the case was hee made a feffement after his entrie and it was thoughte to be a good feffemēt Like law is it where the kynge is entitled but onelye to the profites as vppon an vtlagarie in a parsonall action or vpon the conuiction of a clerke in these cases if the partie entre and make a feffemēt or if a straunger that hathe title to entre do entre hee dyschargeth the kynge of hys interest and of these maters Trauers 12. Assise 156. you shal find bokes 8. H. 4. f. 16. 21. E. 3. f 1. 3 H. 7. 10. E. 3. 27. ass P 15. 9. H. 6. f. 20. 21. H. 7. f. 7. Enterpleder SOmetyme it happenethe that by two seuerall offices founde in one countie seuerall parsones be seuerallye founde heires to one man wherebye forasmuche as the kinge is brought in doubt to whiche of them his hyghnesse maye make liuerie they therefore muste firste enterplede and when by enterpleder the priuitie of the bloode is tried beetweene them then his highnesse oughte to make the liuerye to him that is tryed to bee the nexte heire of him that dyed As for an example by one Diem clausit or specyall commission in one countie one is founde heire to hym that dyed the kyngs tenant and of full age and by an other Diem clausit or speciall commissiō in the same countie one other is founde heire also to hym that dyed and within age in this case the heire that was firste founde shal haue a Scire facias in the chauncerie against hym or her that was last foūd heire to come shew why liuerie should not be made vnto hym that last dyed seised thereof vppon whiche writte yf a Scire feci be returned and the partye defendaunt cometh not or yf he come and confesse that he hymselfe is not heire then the plaintife in the Scire facias shal haue hys lyuerie but if hee come