wrong to the King when I disseise him of his right or use force where I ought to use Judgement On the other side that which is taken from me by the rightfull Judgement of any Judge Ordinary or Arbitraty is not taken wrongfully from me Wrong is here taken as well for deforcement or disturbance as for ejection Deforcement as if another entereth into anothers Tenement when the rightfull owner is at the Market or else where and at his returne cannot enter therein but is kept out and hindred so to doe Disturbance is as if one disturbe me wrongfully to use my seisin which I have peaceably had and the same may be done three waies 1 As when one driveth away a distresse so that I cannot distreyne in the Tenement lyable to my distresse whereof I have had seisin before 2 Another is where one doth Repleive his distresse by the Sheriffe or the Hundred wrongfully 3 As if one distreyne me so outragiously that I cannot manure Plow or the my Land duely in which Case it maketh one an outragious distreyner to disseise or for to eject the Tenant as if any one eject me out of my Tenement whereof I have had peaceable possession by discent of Inheritance or other lawfull title to the possession Note that all right is in two kinds either in right of possession or in right of property and therefore the right of property is not so determinable by this Assize as is the knowne possession or as that which altogether favoureth of a possessory right The remedy of Disseisins hold not of moveable goods nor of any thing which falleth not into Inheritance as Land Tenement Rent Advowson of a Church and a house of Religion Franchises and the Appurtenances and such other rights whether they are holden perpetually in Fee or for terme of life or yeares according to the Contract as well as the Land morgaged to such a one and his Heires untill so much be paid to such a Tenant or his Heires Eiection of a terme of yeares falleth into the Assize which sometimes commeth by Lease or Baylement or Loane and sometimes by right of Wardship by the Nonage of some Heire and to the recoverer it belongeth to hold them according to the Contracts Villinage in some Case falleth into this Assize as to Free-tenants who are ejected or disturbed to continue their seisin of lawfull Presentments and whereof a Bargaine is made betwixt any Doner and any Purchaser although that the Purchaser cannot present living the Clerke of the Doner instituted into the Church the Title neverthelesse of Contracts barreth not altogether the Donee so that afterwards he cannot present against the forme of the Contract and if he doe the Doner falleth into this Assize and the Bishop who gave the Institution to him who is not presented by him to whom the right of presentation doth belong in his owne name Into this Assize also fall Donors and Purchasers who make vicious Contracts of Lands and Possessions as also it is of Guardians and of Farmers who Lease their Lands for a longer time then their terme endureth in prejudice of the Lord of the Fee or of him to whom the Reversion belongeth as it is of those Lessors who have Fee rayle On the other side fall into offence those the Kings Officers and others who disseise a man or a Corporation of their Franchises whereof they have the Inheritance by lawfull Title if not through the default abuse or negligence of those or of their Bayliffes to whom the Franchises belong Into this offence also fall all Atturnies who yeeld up the Inheritance or Freehold of their Clyents in Judgement and the Justices also who yeeld to them and the Tenants also for it behoveth not Atturnies to lose their Clyents rights but it behoveth them to defend them till a rightfull Judgement be given Into this offence fall all those who commit any wast exile or destruction in Lands as that which is not justifiable by Law as those who assigne over Lands to others where in the Feoffments to themselves or their Ancestors there is mentioned but of Heires only and that may be two waies viz. to Heires generall or to speciall Heires named as in Fee tayle or not named as in Franck-marriages This Action all Persons may bring Men Women Clerkes and Laymen Infants and others of what condition soever they be who are not forbidden by the Law It is forbidden to Villaines to bring this Action without their Lord for as much as they are in the Custody of their Lords In the same manner to Feme Coverts and to others who are in Ward and to those who were never Tenants in their owne names but in the name of the Lord The Law also denyeth the Suit to those who have withdrawne themselves from the same action in Judgement or have released or quit-claimed their right And note that Retrahere sub-trahere is not all one Retrahere doth acquit a man from those things which are in his Writ or in his Action but neither the one not the other can utterly barre him if he doe not openly declare the same but subtrahere withdraw his Action every Plaintiffe may doe either by himselfe or his Atturney whether he be present in Court or absent and although it be that one will not pursue his Action yet he doth not so barre himselfe nor withdraw himselfe but that he may have a new Writ and a new Plaint if he doe not openly in Judgement say that he withdraweth his Action these remedies hold against a Disseisor and where there are many against all those who appeare in the force or in the aide CHAP. II. SECT 26. Of Distresses ANy Action rightfully grounded upon a Personall Trespasse accrueth to people wrongfully distreyned which is called a Distresse and because that none can cover his Robbery or his Latcine by Distresse it is 1 to be knowne what is the division of Distresses 2 Who may distreyne 3 When and of what things a Repleive lyeth A Repleive is nothing else but a reasonable distresse A reasonable distresse is to the value of the thing in demand without any other fault for no outragious distresse is termed lawfull There are two manner of Distresses a dead distresse as of Corne Wine and other such Chattels and a live distresse as of a Man a Beast and of such like things No man can distreyne who is not warranted so to doe by Law or by some other speciall deed 1 By the Law as for Damage feasance and for Debts and Contracts of Forraigners for Forraigners are distreynable by their moveable goods and summonable because they are not free Tenants in the places where they are destreyned and for as well a Debt recovered as any other and so for Amercements of damages and Arrerages of Accompt or other thing 2 By Deed as if you grant me any Annuity and doe grant me to distreyne in the Lands for the Arrerages of the same or other service and binde
a personall Trespasse and requireth a personall punishment and not a simple Amercement CHAP. V. SECT 4. Articles upon the Statute of Westminster the first MAny Chapters are reproveable of the Statute of Westminster For the points touching religious Persons are matter to gaine monies and a purchase upon a foundation of covetousnesse more then for their advantage The Chapter of Clerkes found guilty of felony is reproveable for for want of addition of punishment these Clerkes are not to be delivered to Ordinaries but at the pleasure of the King and of his Justices The Chapter of Wreck is reproveable in as much as the finder is forjudged by the Statute to have part thereof whereas he ought to have part of the profit and so it is reproveable as to the awarding of the punishment Of the points of Amercements is before spoken in the Great Charter The point of takings of distresse is much reproveable Cap. 9. as before is said The Chapter concerning pursuing of Felons to maintaine the Peace is reproveable in the punishment for he is consenting to a Felon who doth not apprehend him when he may In the same manner is it of the Chapter of Coroners contained in the Articles following The point of Election of Coroners was not needfull to have been ordained Cap. â— for it behoveth more the Electors to have wise and loyall Coroners then to the King and it had better have been enacted that the Coroners doe present the points of their Office under the Seales of the Jurours then Sheriffes should make counter parts of the Rolls The point of Enquest of Odio aria is reproveable Cap. 12. for London and other places in Liberties where there are no Knights The point of putting people found guilty of felony who will not put themselves upon the Country to pennance it is out of use that one kill them without having regard to the conditions of the Persons and therein it is reproveable since one may perhaps helpe and acquit himselfe otherwaies then by his Country and in as much as none is to be put to Pennance before he be attainted of the offence for which he ought to be pained The Ordinances of punishments of long imprisonment are to be reprehended as before is said The point of the order of Outlawry of the principalls before the Accessories is no Statute but a revocation of errour The point of Replevisalls is reproveable according as it is said of Actions the punishment of long imprisonment containe Errour as is said before The punishment of Heites males Married as against the King without the consent of their Lords betwixt 14. yeares and 21. yeares is reproveable for then the King should have amends for that for which he hath not any personall Suit for the amends The point of Heires females containeth Errour as appeareth in the reprehension of the point of Marriages in the Great Charter The point of tortious Distresses ought to contain the punishment for the robbery The punishment of Ministers Disseisors by colour of their Office is reproveable for the smalnesse of it as appeareth amongst the Judgements The point which forbiddeth Sheriffes that they take no rewards is reproveable in as much as the King taketh of them and they take nothing of the King The point of Fines of Clerkes and the officers of Justices in Eyre is reproveable for the common grievance of the people without taking of profit The points of imprisonment are reproveable for the reasons aforesaid and the point of Tolls for the punishment of imprisonment and because Tolls are not established certaine The point which willeth that those who dis-use Marriages should lose them was not needfull to have been made for the Law is that he shall lose his Franchise who useth it not The point of the Receivers of the Kings monies and not rendring the same is reproveable for the smallnesse of the punishment according to that which appeareth before The Errours of taking of Carriages and other goods appeareth sufficiently by the reasons before The point which forbiddeth Judgement to be given by Strangers in Counties is reproveable for no Iudgement given by another then an ordinary Judge assigned is to hold The point which maketh mention of Robbery or Disseisins is reproveable for all those are to be seised upon who the Jurours indict of Robbery according to the example of Theeves and other Felons The point of Attaint is reproveable for it should not extend to one case but it ought to comprchend all Oathes taken by twelve men if one of the Parties complaine thereof The point of limitations of Actions is reproveable for the reasons in the Chapter given upon the same matter The point which forbiddeth falsities and abuses used in Courts before this time to false Judges who used not the Law by sufferance of falsities The point of Champions is reproveable for no Champion is to be receiveable as a witnesse The point of not allowing Essoignes in Assizes after appearance is reproveable by the Assize of Novel disseisin where no Essoigne is allowable for the Tenants no more before appearance then after not in no other personall Action The other points of Essoignes are reproveable for no false cause of Essoigne ought to advantage any man The point of delaies in Pleas of Attachment is reproveable in many points accordingas appearethin the chapter of defaults The point to plead upon the surcharge falleth in prejudice of Sheriffes and of Lords of Fees and of Liberties and although the two points of Disseisins that is to say that every one may avoid the damages in the point of personall trespasse done to his Ancesters in as much as his Action lyeth of what age soever the Parties be yet is the first reproveable for as much as the Plaintiffes have no recovery for the damages done to their Ancestors not any Action but to have restitution of the possession The other point is reproveable for the smallnesse of the punishment but according to common right this punishment should have time that he should never doe Homage betwixt them for the Lords forfeiture when he beginneth to dis-inherite his Tenant contrary to the right of Homage The Prayer of the King is reproveable because he ought to aske nothing contrary to Law but it is the prayer of the Justices who desire alwaies to have much to doe The point that if he who is vouched to warranty ought not to warrant although he be bounden by the deed of his Ancestor whose Heire he is in case he alledge that nothing descended to him from that Ancestor by whose deed he is â—ouched is reproveable for according to the old Law Lands remained liable to the Debt of those who acknowledged it to whose hands soever the Lands afterwards came In the same manner it used to be in all other Contracts where the Contracts were adjudged or granted and although nothing descended to the Heire for that he lost not the Tenements for want of Acquittance and if
grace Some became Free by the Pope as it is of those villains who by Bishops are ordained into Orders of Deacon and above but norwithstanding the same a man shall not lose his right thereby who will sue for them On the other part villains become Freemen if their Lords grant or give unto them any free estate of Inheritance to discend to their Heires or if the Lord take their Homage for their land or if the Lord eject them out of their Fees and give them sustinance or if he put them in a common Prison if it be not for crime A woman after she is put in possession by her Lord is never againe to be challenged as a Neife notwithstanding she be sold And if the Lord suffer his Villaine to Answer in Judgement without him in a personall Action or to be a Jurour amongst Free-men as a Free-man knowingly and without the Lords claime the Villaine hath this Plea to the Villinage if he returne not of his owne accord Also a Villaine becomes free through the Lords default in a Writ of Native Habendo as by his Non-suit in the Writ Also by proofe of a free Stocke or to have been borne of free Parents Also by the Lords grant in Court and also by prescription also for default of proofe and also by the Lords negligence as by the remaining of the Villaine within a City or upon the Kings Demesnes for a whole yeare Or if wittingly he suffer his Villaine to be a Suiter in another Court or to be sworne in Assize or elsewhere amongst Free-men if a Villaine depart from his Lord claiming free estate so that he cannot seise him within the Mannour within the yeare or out of his Fee nor after his Writ of Nativo Habend brought it belongeth to the Lord that he bring againe that Action which is ViceCountiel and pleadable in the County by Summons and Distresses of his Lands for the Law requireth that he doe right and use not force The Parties being brought to Judgement in the County Court and the Action being declared in the Defendant by way of exception may plead that he is Franck and because that a free estate is of a higher nature then Villinage therefore because the Sheriffe hath not power to try so high a Plea by the Writ of Nativo Hebendo those Writs and such Pleas are suspendable till the comming of the Justices in Eyre into those parts but if the King Command not to the contrary those Pleas are not adjournable but from one County Court to another Note that all Villaines are not slaves for slaves are said Regardant as before they can purchase nothing but to the Lords use they know not in the Evening what serâ—ice they shall doe in the Morning nor any certainty of their services the Lords may fetter imprison beat or chasâ—â—se those at their pleasure saving to them their â—ives and members these may nor fly or run from their Lords so long as they finde them wherewith to live nor is it law full for others to receive them without their Lords consent those can have no manner of Action against any man without their Lords but in case of Felony and if those slaves hold Lands of their Lords it is intended that they hold them from day to day at their Lords will and not by any certaine services Villaines are Tillers of Lands Note by Villaines in this place is meant Copy-hol-ders dwelling in Upland Villages for of Vill commeth Villaine of Burough Burgesse and of City Citizen and of Villaines mention is made in the Great Charter of Liberties where it is said that a Villaine be not so grievously amerced that his Tillage be not saved to him but the Statute maketh no mention of slaves because they have nothing of their owne to lose And of Villaines are their Tillages called Villinages Copy-hold called Copy holders And note that those who are free and quit of all servitude become servile by Contracts made berwixt the Lords and the Tenants And there are many manners of Contracts of Fees as of Gift of Rent of Exchange and Lease which all may make for a time or for ever and quitment without Obligation and charge of service and with charge And these Contracts as all other are made by Writings Charters and Minuments by solemne Witnesses according to the example of Contracts of Marriages which ought to be a patterne to all other Contracts according to which Example were the first Contracts made by the first Conquerour when the Earles were enfeoffed of the Earldomes Barons of the Baronies Knights of Knights Fees Serjeants of Serjanties Villaines of Villinages Butgesses and Merchants of Boroughs whereof some received their Lands without Obligation or service or in Frankalmoigne some to hold by Homage and by Service for defence of the Realme and some by Villaine Customes as to Plough the Lords Lands to Reape cut and carry his Corne or Hay or such manner of service without giving of any wages whereof many Fines were leavied of such services which make mention of the doing of these base services as well as of other more gentile services and although it be so that the people have no Charters Deeds nor Minuments of their Lands neverthelesse if they were ejected or put out of their Possessions wrongfully by bringing an Assize of Novell Disseisin they might be restored to their estates as before because they could averre that they knew the certainty of their services and workes by the yeare as those whose Ancestours before them were Asteries for a long time in case Disseisors were not their Lords And thereupon Sr. Edward in his time Doom-day Booke Vt credo caused enquity to be made of all such who held did to him such services as ploughing his Lands c. besides their lawfull Customes And afterwards the people lesse fearing to offend then they ought many of these Villaines by wrongfull Distresses were forced to doe their Lord the service of Rechat of blood and many other voluntary Customes to bring them in servitude under their power for which their remedy was a Writ of Ne investoè vexes CHAP. II. SECT 29. Of Summons THis Chapter maketh mention of speciall Summons to make a difference from generall Summons where all Freeholders and others ought to come according to the nature of the Cry whereof and every one may Summon by a Common Cry but of this Summons this Chapter maketh not mention A speciall Summons is a friendly admonition of an amendment of an offence or wrong and because none is tyed to Answer to any Action reall or mixt before a Summons therefore it is to see 1 Who have Authority to Summon 2 Who are Summonable 3 In what place he is Summonable 4 How farre one is Summonable 5 At whose Charges 6 How often 7 Who may be Summonors 8 What is a reasonable Summons 1 All who have Jurisdiction have Authority to Summon 2 All those who are not forbidden by Law are
he who bound himselfe to warranty would not warrant the Land not vouch over it appeareth thereby that the Ancestor was Tenant by a naughty title and that he was possessor thereof by an ill way and if the Heire had nothing whereby to discharge him the Tenements bound to warranty should be recovered And if the Heire had nothing whereby to discharge not no Land is found bound to the warranty if the Purchasor lost his purchase it was at his owne perill and accounted his owne folly the better at any other time to looke to his assurance CHAP. V. SECT 5. Articles upon the Statute of Westminster 2. THat which is said of the Statute of Westminster 2. which faileth in many cases is now to be understood for against all Trespasses is the Law made although it be dis-used or controuled by those who know not the Law And the three first Chapters are not Statutes but are the revocations of the Errours of negligent Judges for the Law permits not that a man make a better estate to another then himselfe hath but requireth that every lawfull Contract be made according to the wills of the speakers and that which is in the Statute that if a Fine be leavied in deceit of right that the same be null is reproveable but it might have been better said That for that Fine that no man be barred of his right for the Fine leavied cannot be rightly said null but it holds in force and barreth at the least the Donor of his Action The point if Distresses doth not repeale any Errour but affirme them as before appeareth in the second beoke And that which is said in the second Statute that Suitors in Counties have no Record is but abusion since every lawfull restimony is a Record and every false testimony is a lye and as lawfull may other people testifie as the Justices assignned Is not the same Writ abused to grant to Counties Records in Outlawries Pledges Maine-prises Battailes Grand Assizes and other Cases and not other points and to deny that the Sheriffes or Lord of the Fee or other to whom the King sendeth his Writ hath not as well Record of Processe before him as those whom they call Iustices is but Errour And as to the causes of Writs of paines is suffered great Errour that that which is not warranted in the Accessory that he may 〈…〉 in the principall since the Law permits that none be aided by a lye or a vicious Writ Of the other side because there is more realty in the Statute then personalty as more Attachments are awarded in personall Actions then in mixt and realls The point of Measnes is reproveable as to the Proclamation and as to the non-acquittance of those who hold by lesse service then the Measnes for be it that B. hold one hundred pound Land of D. by the service of twenty pound per annum and the same B. give the moyety thereof in Frankalmoigne or Frank marriage or to hold by the service of a Rose to C. if it happen that the same B. forfeited what he hath by this Statute no remedy is ordained for C. who was purchasor from B. and therefore the old course is to be holden which is said before in Iudgements The remediall Statute of the right of the Wife lost by the default of the Husband is reproveable for the old Law was that a woman after the death of her Husband should repleeve her Inheritance or purchase so lost summoning the Tenants for a Cape is not but a distresse and ejection of seasin saving every right and it is lawfull for one of the Tenants in common to defend his right where he is damnified by the negligence or the non ability of his Partner In the same manner may a Woman according to Law in the right of her Husband neither doth the Law give to Widowes Action to demand Dower in the cases named in the Statute but in all cases the Law enables her to be received by Lawfull reversing of the Iudgement And that which is contained that Tenants may vouch to warranty is but abuse how holdeth voucher place where a Writ lyeth not yet is it understood with a saving that no jurisdiction of a Iudge assigned extend to other Persons then those who are named in the Writ and that none shall vouch more then in the same Writ are named by Writ of Replegiare and therefore are warranties attainable and determinable by Writs The Statute following which Ordaineth new Writs remedialls after defaults is prejudiciall to Lords of Fees who lose the advantages of their Courts because that Writs of Right are forbidden in such cases where they wont to be used Presentments to Churches ought not to be but in the names of those to whom the meere right of the Advowson doth belong according as is said before in Contracts and it is errour and abusion of Law to endow women of Advowsons or to Lease them to Farme or for the terme of anothers life or in Frank-marriage or in Mortgage or in Fee-tayle or otherwise then in Fee-simple And those who receive Clerkes presented to Churches in prejudice of those to whom the meere right in Fee doth appertaine are bound to make restitution of the damages and those who have recovered to Jurours by whom they were certified of the right of the personage and so it appeareth that the punishment lyeth more against the Bishops then the presentors And that which enacteth long Imprisonment for a punishment is but abuse since none is imprisonable if not for a wrongfull imprisonment The Statute of Warranties is but a revocation of Errour used against Law The Statute of Admeasurement is reproveable in many points as to the Proclamations since admeasurement and surcharge are to be by Jurours The Statute of Measnes is reproveable in many points as it appeareth in the Chapter of Distresses Contracts and defaults and the same appeareth in the end of the Statute where the Plaintiffes know not a set fine The Statute of suspension of Writs in Eyres is reproveable as repugnant to the great Charter which saith we will sell no Right nor detaine it and wherefore are Writs rebuttable from heating but for the multitude of Writs which are and for the small number of Justices the right of many perish The Statute of obligees in Accompt is reproveable in many points one as to the exception to the Persons for the Masters is ordained recovery and to Serjeants not when Auditors are assigned without the consent of the servants The other that the Auditors are not tyed to allow any thing but at their pleasure without punishment Another that the recovery is ordained by detinue of the servants and not against the Surety not the goods Another that the Lords are not to be Attested according as of the servants Another that the wickednesse of Auditors remaineth unpunished Another of Outlawry for none is to be imprisoned if not for a tortious imprisonment The Statute of Appeales is reproveable in
when they may and know to whom they doe belong Into this offence fall all those who take wrongfull or outragious Tole in Markets Ciries Boroughs Townes Mills or elsewhere and those who take pavage murage chinniage carriage or other manner of Customes more then they ought to doe Into this offence fall those Bailiffes who doe enquire in Turnes and viewes of Franck-pledges of more Articles then of personall offences of wrongs done to the King and his Crown and of wrongs done to the common people those who by extortion take monies or Fines for Beaupleader or for which the Jurours are not charged and those who amerce any of their owne heads without reasonable affirment of the people sworne thereunto Into this offence fall those who unjustly distraine and those who sell distresses for the Kings debt within the 15. daies Into this offence fall all those Officers of the Exchequer and others who forbid to make Acquittances under the Exchequer Seale to every one for so much as he hath paid and who oftner then once cause a debt to be leavied who to take Rewards whereby the Townes doe not in due manner according to the Constitution of Winchester or who suffer that the people be not surnished with Armes according to Common appointment Into this offence fall all stealers of others Venison and of Fish in Ponds and of Conies Hares Pheasants Partriges being in Warrens otherfowl Doves and Swans of the Eires of all manner of birds Into this offence fall all the Sheriffs Bailiffes and other the Kings Officers who unjustifiable by extortions take money of the people as for defaults unjustifiable or for sheaves or other Custome unalowable or for Plea whereof the Judge hath no jurisdiction and those who take mony to put men out of Pannells of Juries and put others in Into this offence fall all those who take Lands Tenements Horses or other things and use them beyond the appointed for the loane of them and those who by the authority of their Bailiffes make unjustifiable Collections for monies or other provisions or Corne in Sheaves for Scottalls or other Feastivalls or doe to the people other unlawfull grievance in the like case And those sworn Officers who cause Fines or Amercements or other mâ—nner of duty to be oftentimes leavied upon one man without making restitution and those officers who take of other then of the King or of their Lords to doe their Office and those who oftner then twice in the yeere hold Sheriffes Turnes or who oftner then once in the yeere hold views of Frank-pledges in one Court and those who by unjustifiable Articles amerce the people and those who at Mills or Markets take outragious Tole and those who amerce the people by Presentments not made by the whole Decenry or by others then of Free-men Into this offence fall they who doe any thing upon another Inheritance by evill covetousnesse or for hatred Into this offence fall Counters who take outragious Sallary or not deserved or who are attainted of ill defence or of other discontinuance and those who deny their Seales in Judgement and those who make Contracts which are forbidden Into this offence sall Usurers who lend mony or other things through covetousnesse to take the forfeiture And those who rob or steale the Marriages of others or run away with others Wives or villaines with the goods of others And all Fore-stallers by whom Victuals or Cattell are made deare They are Fore-stallers who within any Towne or Franchise buy to engrosse and unlawfnlly to sell more deare and those Butchers who sell unwholsome flesh for wholsome and those Fish-mongers who buy and sellagainst the established Law and all those of what Mysteries soever they be who doe deceitfully in their trade or Mysteries CHAP. 1. SECT 11. Of Hamsockne or Burglary BUrglary by an ancient Ordinance is a mortall offence for the Law is That every one be at peace in his owne house This offence is not done only by breaking of a house but is also done by a fellonious assault of Enemies in time of peace upon those who are in their houses with intent to repose there in peace whether the assault be to kill or to reb or to beat those who are in rest within their houses And although it be that these offenders doe not accomplish their purpose if neverthelesse they make any breaking by their assault of the doores windowes or walkes to enter felloneously they are guilty of this crime Into this offence fall all those who felloniously force their entry into anothers house and therein doe any violence against the peace although they doe not break the house and that as well in the day time as the night and those who diffeise the people in such case or cast them our of their houses and out of their peaceable possessions wrongfully CHAP. 1. SECT 12. RApe is done two waies that is to say of things and of Women This offence is here put because King E. 1. by his Statute made it mortall which is more grounded upon the will then upon diseretion for one fortis Whoredome another Fornication another Adultery another Incest and another Rape but to speake properly we are to distinguish of the offences whereof the first offence is greater then the other Whoredome is the deslouring of a married woman felloniously Fornication is to ravish women not Married Adultery is to ravish anothers wife Incest is to ravish Cousens Parents or Affines Rape is properly the taking away of a woman for the desire of Marriage Rape neverthelesse according to the meaning of the Statute is taken for one proper word given for every enforcement of a woman of what condition soever she be CHAP. 1. SECT 13. Of the Office of the Coroners TO Coroners anciently were enjoyned the keeping of the Pleas of the Crown which extend now but to Fellonies and Adventures There are 2 kinds of Coroners Generall and Speciall To the Office of generall Coroners it belongeth to receive the Appeales of all the County of Fellonies done within the yeere to award the Exigents of Contempts and to pronounce the Judgements of Out-lawries and more to enquire in what Pledge they were or Decenery or of whom Mainprized and in whose Ward Speciall Coroners are Coroners of Liberties and of priviledged places To the Office of the one and the other it doth belong to view the Carcases of the dead by Felony or by mischance or to see the burnings and the wounds and the other fellonies that is to say every one in his Bailiwick and to see Treasure totheâ— and Wreaks of the sea and to take the acknowledgements of Felony and to give the Abjuration to flyers to sanctuary and to take the Enquests of Felonies hapning within their Bailiwicks As to the view of the Carcase of the body of a man it is his office that so soone as he shall be certified thereof to send to the Hundred of the place to summon sufficient able men of the
after default untill due satisfaction was made so as the defaults were more hurtfull to persons in contempt then profitable Some Actions are personalls and not mixt in the introduction as of Neistie of Acccompt of leading away distresses and some actions there are that although they savour of the personalty and realty yet they hold not the rules of those actions As of Recognitions of Assizes in which if the Tenants make defaults for that there is no distresse nor seisure of the Land or other thing in the Kings hands but the Recognitions are to be taken ex officio and the Judgements are to be pronounced according to the Verdict of the Jurours in respect of such defaults CHAP. IIII. SECT 6. Of Personall Action IN personall Actions venialls where the Defendants are not Freeholders the defendants used to be punished after this manner First Processe was to bee awarded to arrest their bodies and those who were not found were put in exigent in what Court so ever the Plea was and were at three Courts solemnly demanded and proclaimed and if they appeared not at the fourth Court then were they banished the Lords jurisdiction or the Bayliffes of the Court for a time or for ever according to the quantity of the Trelpasses CHAP. IIII. SECT 7. Defaults in reall Actions THe defaults in reall Actions are punishable in this manner At the first default the plaintife is there seized to the value of the demand into the hand of the Lord of the Court and the Tenants are sommonable to heare their Iudgments of defaults Or after appearance the seisure is to be adjudged to the Plaintifes to hould in the name of a distresse untill by lawfull judgment hee be ousted thereof And if any one appeare in Court first he is to plenise the thing in demand and presently to answer the default In which case hee may deny the Summons because hee was never Summoned or not reasonably Summoned and thereof he may wage his Lawyer against the Testimoney of the Summoners although they be present and if he wage his Lawyer he is presently to plead to the Action or to the plaintife CHAP. IIII. SECT 8. Of Actions Miâ—t THe defaults of mixt actions are punishable in this manner The defendants are distrainable by all their moveable Goods and Lands saving that they are not put out of that possession from Court to Court till they apeare and Answere and the issues come to the profits of the Lords of the Courts CHAP. IIII. SECT 9. Of Pledge and Mainpernor PLedges and Mainpernors are of one signification notwithstanding that they differ in names But Pledges are these who baile other things then the Body of Men as in Reall Actions and Mixt Mainpernors are in personall Actions only those wâ—â— bayle the Body of a Man safe Pledges are those who are sufficient to answere the demand or the value and are true men and Freeholders to whom the Plaintife is and in whose Court the Plea is brought and if any one bring the Body or his Fees by default he is sufficient punished though hee bee not amerced but then the Offendor is first amerceable when he is brought to judgement and cannot excuse his wrong or save his default And as none who commeth before Summons is amecreable so no Plaintife is amerceable or his pledges de prosequendo for Nonsuit where the Tenant appeareth according to the warrant of the Summons or other wise maketh satisfaction for the same As in Case where the King Commands the Sheriffe that hee command such a one to appeare or to doe and if he do not and the Plaintifes put in sureties to prosecute his suit then that he summon or attach the defendant c. In which case if the Sheriffe had not warned the Tenant to appeare or to do according to the points of the Warrant if he take surety of the Plaintife to prosecute hee doth him wrong But the Plaintifes and their pledges are to bee amerced when the defendants offer themselves in judgment against them and they make defaults by Nonsuit And also those Sheriffs do wrong who forbeare to execute the Kings Commands in as much as the Plaintifes have found sureties to prosecute their Plaints when no mention is made in the Writts to put in sureties CHAP. IIII. SECT 10. Defaults after summons AS there is a default of persons in the like manner there are of things As of services issuing out of Lands where the Lands are in service and wherenot If Rent Suit or other service bee behinde to the Lord of the Fee The Tenant is not distraineable for the same by his moveable goods but it behoveth to sommon the Tenants to save their defaults or to make satisfaction or to answere wherefore those services due out of their possessions are behinde to the Lords and if they appeare not at the Sommon by the a ward of the suitors their Lands are to be seised into the Lords hands til they justify themselves by pledges And if they be againe summoned to heare the Iudgments for their defaults Although they come not at the second Summon they are not to bee amerced in as much as they came they may render the Land or alledge a priviledge or say something why they ought not to obey the Summons And if the Lord have not a proper Court nor suitors or hath not power to do Iustice to his Tenants in manner as aforesaid Then the same may bee done in the County or Hundred or elce in the Kings Courts Or at first by a Writ of Customes and Services and other Remediall Writts And if any one hath not any thing to acquit himself the Lord is not to loose his Right although hee be delayed thereof but the Lord may seize his Land as before is said and the Tenant is to recover his damages where he can and it shall be accounted his follie to enter or remaine in another Fee without the consent of the Lord. And if any one oust him of his Land and of his Tenement enforceth another person to hould of him and maketh himselfe mesne betwixt the Lord and the Tenant in prejudice of the Lord in such a case the law is used to hould the course after said CAP. IIII. SECT 11. Of champion IF any one do or say to his Lord of whom he houldeth any thing which turneth to the hurt of his body or to his dissinherison or to his great dishonour First by the Award of his Court or of some other such a one is sommonable if he be his Tenant and afterwards if he make default he is destrainable by his Land by the Lord till he appeare and if hee appeare and cannot discharge himselfe by his wager of Law by 12. men more or lesse according to the Award of the Court hee is to bee disinherited of the Tenancie which hee houldeth of the Lord in such a manner by the Judgment of the Suitors and so it behoveth that the Tenants leave their Lands and
realls And if any one receive a Felon wittingly into his Franchise the same is now challengable CHAP. IV. SECT 17. Of satisfaction of Debt IF a Plaintiffe recover against many by Iudgement he shall have but once damages as in this case If many Persons owe one Debt and every one be bound in the whole if one of them make agrement for the same although he doe not make a speciall agreement for all the Debtors all of them neverthelesse are discharged because satisfaction hath respect to the Debt and not to the persons CHAP. IV. SECT 18. Cases of Disseisin IF the Iurours in Petit Assizes are agreed that one shall give their common Verdict for all and if they say that they know nothing nor that the Plaintiffe shall receive nothing because he proved not his Action and if they be of divers opinions they are not therefore to be threatned nor imprisoned but they are to be severed and diligently examined And if two Iurours be found to agree amongst all the rest it sufficeth for him for whom they speake and they are not to be examined upon the title of the possession but it is sufficient for the Iudge to know if the Plaintiffe were disseised of his Land whether it were rightfull or wrongfull according to the Plaint for though it were right neverthelesse it was tortious because the Tenant used force where he should have used Iudgement and for that he made himselfe a Iudge therein Iudgement is to be given for the Plaintiffe so as he shall recover seisin such as it is saving every right by another Writ for an Affize lyeth not upon Assize of the same Tenement betwixt the same parties not an Attaint upon an Attaint and if the Iurours for him whether they were sworn upon the Action or upon the Exceptions Iudgement goes for him and they behoove to enquire of the others named in the Writ and if the Disseisors came in with force and Armes although they hurt no persons body all of them neverthelesse are to be adjudged to Corporall punishment according to the quantity of the offence and if they cast him our of his dwelling house or out of his Demesne the felony of this Burglary is punishable at the Kings Suit or at the Suit of the Party for none is to be cast out of his house where he dwelleth and which he hath used as his owne for a yeare without Iudgement although he hath no title thereunto but by Disseisin or intrusion and it sufficeth for fotce and Armes onely the shewing of Armes for to hurt the Adversaries and under the name of Armes are contained Bâ—wes Artowes Sawes Launces Speeres Staves Swords and Targets of Iron The Iury ought to enquire of the damages that is to say of the profits of the Tenements done since the Disseisin and to whose hands such profits after came and of the Charges Costs and reasonable expences which the Plaintiffe hath sustayned in his whole recovery and in all things and how much he is endamaged in distresse of his goods and in his honour and the damages being assessed it is to be awarded that the Plaintiffs recover his seisin such as it is according to the view of the Recognitors and the damages and the Disseisors are punishable according to the points of the offences For the goods found in the Tenements whereof none can know the value as Charter Writings Royall Treasure and such things locked up the Plaintiffe hath an Action by Appeale of Robbery or by a Writ of Trespasse In Iudgement of â—atcine veniable satisfaction is to be made to the 〈◊〉 inâ—ffes to the double of the value of 〈…〉 which are stolen and in case of 〈…〉 the value 4 double or foure 〈…〉 CHAP. IV. SECT 25. Of Amercements A Pecuniary paine we call an Amercement which follow reall offenders and mâ—â—t and sometimes are certaine and sometimes uncertaine An Amercement is certaine sometimes according to the dignity of the Persons as it is of Earles and Barons for he who holdeth an entire Earldoine is to be amerced one hundred pound when he is least amerced And a Baron for a Barony entire one hundred Markes and he who holdeth lesse lesse and more more according to the quantity of the Tenure And sometime by a certaine Assize in another case as it is of Escapes of people imprisoned in which case yee are to distinguish of the place as where one escapeth out of the Kings Prison or out of the Prison of another out of the Kings Prison yee are to distinguish of the cause whether it be mortall or veniall and if mortall then distinguish if the cause were adjudged or not and if adjudged by norory of fact or of right then the Corporall punishment is uncertaine for if the Keeper or more be assenting to the escape punishment of death followeth thereupon and if the cause was not adjudged and the Keeper was not the Kings Officer nor assented to the escape then the Assize of punishment is so many Shillings sterling or more according to the usage of the Country or of the place or of the person And if the Cause he veniall then the escape is not punishable And if the escape be from the prison of others then yee are to distinguâ—sh of the cause and of the caption whether the cause be mortall or veniall and if mortall then the pecuniary paine aforesaid holdeth place and if the cause be veniall there is no punishment for the escape CHAP. IV. SECT 26. Of Amercements taxable COmmon Amercements are Taxable by the Oathes and Aâ—â—erments of the Peeres of those who sal in misere cordia according to the constitution of the Charter of Franchises which willeth that a Free-man be assessed when he falleth into an Amercement according to the quantity of his offence a Merchant saving to hâ—â— his Merchandize and a Viâ—â—aine saving his Wainage and these Affâ—rrors are to be chosen by the assent of the Parties if they will but the Kings Officers are the more grievonsly to be Amerced for the breach of their faith c. Many cases there are where Corporall punishments are brought in by Fines of money and such are called Ransomes which is as much as to say Redemption from Corporall paines whereof some Fines are common as for Murders other for personall Trespasses of Townes and Commonalties which Fines King Edward Ordained that they should be assessed in the presence of the Justices so as the names of them be put into the Roles of the Iustices so that the Estreates may come to the Sheriffe to leavie the same by parcells and not by totall Summons And in case where one recovereth Debt or Damages King Edward enacted that it should be in the election of them to doe execution by leavying such Debt and damages of the moveable goods of the Debtors at the very value to the value of the thing in demand except the Oxen and Beasts of the Plow together with the moyety of Lands and Tenements of the Debtors if
is reproveable and distinguishable according as hath been said before The Statute to have view of Lands is but a wrongfull delay of the right of the Plaintiffes for the View appeareth sufficient by the Certificate of the Summons upon what Tenements the Tenants are summoned The Statute which forbiddeth that no Officer of the Court take any presentment of any Church not other thing which is depending in Plea or in debate is not kept Reprehensions upon the Statute of Gloucesier 16. E. 1. THe Statutes to recover Damages in Pleas of possession enacted at Gloucester or else where and of the horrible damages in waste are reproveable for that the Law giveth one no more then is his demand and therefore it behooveth that the damages be mentioned in the Writs if damages shall be awarded for a Judge cannot exceed the points of his Commission and so it would be needfull to use it according to the first Ordinance of Writs And the Statute of Tenements alliened of Lands in prejudice of others is reproveable for the remedy ought to be such as of Guardians allienors to the dis-inherison of the right Heires The Statute of Trespasse pleaded in Counties is reproveable for want of distinction for small Trespasses Debts Covenants broken and such other kinds not exceeding forty shillings Suitors have power to heare and determine without Writs by warrant of jurisdiction Ordinary and by Writs granted afterwards for Sheriffes have more jurisdiction in their Writs vicontiell then Justices of the Bench by the Pone And as to the recovery of twenty shillings or more in right of Essoigne of the Kings service not warranted the Statute is reproveable for that Essoigne might be cast where the Defendant would make default by the adverse Party and so he should have advantage of his malice The Statute which forbiddeth the abatement of Appeales is not observed The Statute which awardeth an innocent man to remaine in Prison or to have no manner of punishment for necessary Man-slaughter or by mischance where no offence is found is but an abusion The Statutes making mention of London ought to extend commonly throughout the whole Realme CHAP. V. SECT 6. The reprehensions of Circumspectè agates An. 13. E. 1. THe first point which saith That the Kings prohibition holds not in correction of mortall offences where a pecuniary paine is enjoyneable by Ordinaries is founded upon open errour and usage to enjoyne a pecuniary paine for a mortall offence notwithstanding to destroy the King jurisdiction The other points to compell the Parishioners by corrections to enclose Church-yards to offer to give Mortuaries Monies for Consessions Chalices Lights Holy Vestments and other adornement of Churche are more grounded upon interest then amendment of soules and note that after that they are offered to God that they are so spirituall that they are to be expended but in Almes and spiritually for they are never to be converted to Lay uses And then if any Parishioner for the hurt of the Parson of the Church keopeth back his Tithes or stealeth them away or doth not pay them duly or fully the same is not punishable by a pecuniary paine but by a corporall punishment For the Excommunicate no pecuniall paine was to be for restitution or satisfaction no more then of a Pagan or a Jew and if they doe demand a pecuniary paine there the Kings Prohibition lyeth and much more in the demand of Pensions or of damages of Trespasse or of defamation but of Pleas of correction where one Pleades onely Pro salute anima the Kings prohibition lyeth not CHAP. V. SECT 7. THe new Statute of Debts is contrary to Law as it appeareth in the Chapter of Contracts for every imprisonment of the body of a man is an offence if not for tortious Judgement and the Law will not suffer any Obligation or vicious Contract by intermixture of offence and therefore it was to be avoided as grounded upon an offence for no honest man ought to agree to such a Contract which causeth him to offend or to be punished Againe it is contrary to the Great Charter which enacteth that no man be taken nor imprisored if not by the lawfull judgement of his Peeres or by the Law of the Land Here endeth the Mirrour of Justices of the right Lawes of Persons according to the ancient usages of England The end of the fifth Chapter and of the whole Booke FINIS THE BOOKE Called The Diversity of Courts And Their Jurisdictions Written by an unknown Author in the time of King Henry the Eighth in the French Tongue Wherein many necessary and profitable things ate contained Translated out of the French Tongue into English for the use of many By W. H. of Grays Inne Esquire Imprinted at London for Matthew Walbancke and are to be sold at his Shop at Graies Inne gate 1646. The Booke called The diversity of Courts and their Jurisdictions IT is to be understood that the King is the fountaine of Justice and to that purpose ordayneth Judges that Justice be administred to all his Subjects The King himselfe for the excellency of his Person may fit and give Judgement in all Causes personall or reall betwixt Party and Party but he cannot fit in Person in Judgement in any Cause where he himselfe is Party or where the things of his Crowne or Dignity are concerned as upon an Indictment of Treason or upon as appeale of Murder or Felony or upon an Action brought by himselfe as Formdon of Land of which the right is descended to him from a colaterall Ancester or in an Action of Debt by reason of the affection moving him to be favourable to himselfe and therefore he maketh his Iudges to sit and heare such matters in difference and to doe justice to the parties And the place where the Judges sit to minister Justice are called Courts which are of divers kinds and the Judges thereof have severall Authority Of the Court of Marshalsey ANd first the Court of Marshalsey is an ancient Court and made for the well government and ordering of the Kings house for the preservation of the King and his Servants and this Court hath its bounds within which it hath jurisdiction and not without The Iudges of this Court are the Steward and Marshall of the Kings house for in them under the King is the ordering of the houshold c. The title of the Court is Placita Corone aula Hospitii Domini Regis leat coram seneschalle mareschallo hospâ—â—â—i Domini Regis c. And this Court hath power to enquire of Treason Murder and Felony and to take Appeales of them and of Mayhem if they be done within the Virge betwixt persons who are of the Kings house And if one of the houshold Sueth another who is not of the houshold he may plead to the jurisdiction of the Court and if they will not allow of the Plea he shall have a Writ of Errour and the Iudgement shall be reversed in the Kings Bench. And if
one of the houshold sueth another of the houshold and the Plaintiffe be put from his service depending the Suit the other shall shew the same and abate the Writ but quere if it be so if in case the Defendant be removed out of service c. The Coroner of the Marshalsey shall fit with the Coroner of the Country upon the death of a man and if the Plea may be determined before the King remove out of the Virge it shall be otherwise it shall be at the Common Law The Kings Bench. THere is another Court of high Authority called the Kings Bench and the Iudges of that Court have Authority to enquire of heare and determine Pleas and things touching the Crowne as High Treason Murder Man-slaughter Robberies Felonies at the Common Law and by Statute Law Mayhems Trespasses Burglaries and all deceits and falsities whatsoever but they have not authority to hold Plea betwixt Party and Party by originall Writ but in speciall cases They have power to proceed in and determine Indictments and Presentments taken within any County within the Realme where the Kings Writ runneth if it be certified by Certiorare or be delivery under the hands of the Iustices of the Peace or other Iustices before whom the Indictments or Presentments be whether it be of Treason Felony forcible entre Ryot or any other thing against the Peace and they have Authority to reverse Iudgements given in the Common Pleas by a Writ of Errour or before Iustices of Assize and in Liberties and Franchises but not in London for a Writ of Errour of a Iudgement given before the Sheriffes of London shall be reversed before the Major in the Hustings And erronious Iudgements given before the Major in London shall be reversed at St. Martins before speciall Commissioners assigned to that purpose and thereupon a Writ of Errour shall be directed to the Major to have the Record and proceedings thereof and the Record shall be certified by the Recorder c. And it is said that if an erronious Iudgement be given in Ireland it shall be reversed in the Kings Bench by a Writ of Errour for that in Ireland the Lawes of England are used And if an erronious Iudgement be given in the Cinque Ports it shall be reversed in the Kings Bench and the Writ shall be directed to the Warden of the Cinque Ports and he shall returne the Writ and the Record c. The King may have a Formdon in the Kings Bench Debt Detinue and every other Action and a Quere impedit at his pleasure And a common Person may bring an Action of trespasse Quare vi ermis in the Kings Bench and Actions for forging of false Deeds maintenance Conspiracy Actions of deceit upon the case or supposing any falsity and deceit where the King shall have a Fine c. And note that there are some Actions upon the case which shall be sued in the Kings Bench and some not as an Action upon the case against one supposing that the Defendant hath sold Land to the Plaintiffe for a certaine summe of Money and that he covenanted to infeoffe him by such a day and not by any Deed c. Or to build a house such a day and did not doe it e. such actions shall be brought in in the same Court but there are other Actions upon the case which shall not be brought in the Kings Bench as if a Horse be stollen out of the common Inne an Action upon the case lyeth against the Hosteler but not in the Kings Bench as it is said And so it is where a man is so bounden to keepe his fire that the same hurt not his Neighbours houses c. And note that the chiefe Iustice of the Kings Bench is made by Writ and not by Patent and it is to this effect Rex dilecto fidel fuo I Fitz-Iames Saltem Quia volumus quodvos sitis capital Iusticiar noster ad placita corem nobis tenenda vobis mandamus qnod officio illi intendatis but he shall be sworne by the Chancell or of England before he take upon him his office The other Iustices of the same Court are made by Patent viz. by these words Constituimus c. unwn justitiorum nostr ad placita corum no bis tenenda habend occupand officium illud quam diu nobis placuerit And if a King maketh a Iudge to hold and enjoy the said Office by himselfe or his sufficient Deputy for life the grant is void as to the Deputy and if the grant be to him and his Assignees he cannot make an Assignee c. The Common Pleas. ANd note there is another Court called the Common Pleas which Court hath jurisdiction to hold Common Pleas as well personall Pleas as reall or any other Precipe quod reddant of Lands or Tenements c of Debt Detinue Accompt and other personall Actions and they have power to hold Plea of any of those Actions which may be brought in the Kings Bench as Actions of Maintenance Conspiracy Forgery of false Deeds and Actions upon the case and trespasse against the Peace of such Actions wherein the King ought to have a Fine and also of Attaints but they have not power to hold Pleas of Appeales of Murder Rape Felony Mayhem nor to enquire of them nor of Riots And it is said That one may Sue the Peace against another before the Iustices of the Common Pleas and if the Party be in the Hall or in the Place or within their View they may send the Warden of the Fleet to bring the party before the Iustices to finde Sureties or else commit him to the Fleet and the reason why they may so doe is that good order and the Peace be kept about the Court but the Iustices have not power to award Processe to the Sheriffe to Arrest the party to appeare in the Court where the Common Plea is but it is otherwise of the Kings Bench as it is said c. And it is said That the Iustices of the Common Pleas have jurisdiction in some things which touch the Crown and to enquire and hold Plea of some felony and also of misprision and of deceit done within the Court and within the Record thereof And if one imbesell a Pannell after the Enquest passed and Iudgement given in the Common Pleas by which the Iudgement is reversable by Errour for want of that Pannell the Iustices of the Common Pleas have power to enquire of the embeselment of the Pannell by 12. of the Officers and Atturnies of the same Court and they shall be sworn before the Iustices to enquire of that default and if they endite the embesselors they shall be Arraigned thereupon and shall be compelled to answer thereunto as other Felons c. and if they be attainted they shall forfeit their goods and chattels tamen quaere c. And if one be condemned in Debt or trespasse in the Common Pleas and he be in the Hall the Iustices
Ports and such places which have Counsans of Pleas and also in Court Barons in which Courts is Iustice done according to Law c. And although they of the Cinque Ports ought to be empleaded of their Lands within the jurisdiction of the Cinque Ports yet that holdeth onely where the Tenant sheweth the same and taketh advantage thereof if he be impleaded in the Kings Courts of things which are within that jurisdiction but if the Tenant be sued in the Common Pleas for Lands within the Cinque Ports if the demandant doth recover by default or if the Tenant appeare and plead any matter which is found against him so that the demandant hath judgement for to recover the Land that judgement shall bind him for ever c. But the Tenant might have alleadged That the Land was within the Cinque Ports and by such Plea the Kings Courts should be outed of the jurisdiction c. And so it is of Lands within an ancient demeasne if a Writ be brought thereof in the Common Pleas if the Tenant appeareth and pleadeth and doth not take exception to the jurisdiction and the Plea be found against him so that the demandant recovereth the Tenant shall not reverse the judgement by a Writ of Errour because the Tenant might have taken exception to the jurisdiction of the Court and it should have been allowed c. But yet the Lord may reverse that judgement by a Writ of deceit and shall make the Land ancient demeasne as it was before c. And if one hath Counsans of Pleas in a Towne or in a Mannor and a Writ is brought in the Common Pleas of the same Land and the Tenant pleadeth and judgement is given against him the recovery is good for it is within the power of the King and the Writ of the Common Pleas doth take place there and if the Bayliffe or Lord doth not demand Cognusans the judgement is good But in another Action the Bayliffe shall have Cognusans for that the nature of the Lard is not changed and so see that where a man hath counsans of Plea c. it ought to be demanded by the Bayliffe or the Lord and the Tenant shall not demand the same if he be impleaded in the Kings Court but of the ancient demeasne there it behoveth the Tenant to shew the same and plead to the jurisdiction c. if he will have advantage thereof c. And so note that in the Cinque Ports there is such a liberty that the Lands and Tenements are pleadable there before the Barons c. and yet if one be impleaded at the Common Law of Lands within the Cinque Ports the Barons shall not have Counsans of the Plea but the Tenant may plead the same to the jurisdiction in abatement of the Writ c. The Court Baron NOte also that there is another Court which is called Court Baron in which Court the Suitors are the Judges and not the Steward and they hold plea of Contracts within the jurisdiction c. and yet it is said by some That the Defendant shall not shew that the Contract was made out of the jurisdiction and pray that the Plaintiffe be examined as in a Court of Pipowder The Judges of the Court Baron have Authority to hold plea before them of Debt upon Contracts or Detinue but not of detinue of Charters nor Actions of debt upon a judgement in a Court of Record but otherwise I thinke it is of a recovery in the same Court nor shall they hold plea of Maintenance forgery of false Deeds of deceit not of Decies tantum not of pleas of Accompts for they have not authority to assigne Auditors They shall not hold plea of Debt above the summe of forty shillings unlesse it be by prescription and they shall not hold plea of Free-hold by plaint but by a Writ of right they may But if a judgement be given of Free-hold upon a plaint it is said it is good untill it be reversed by a Writ of false judgement tamen quaere c. And note for what Suit a man shall be judged in a Court Baron and it is said That it is where a man is seised of Lands in Fee-simple and which he holdeth by service of Suit at the Lords Mannour that Suit is properly Suit-service and for such Suit he shall be judged in a Court Baron and for no other Suit as it is said c. And quaere also when erronious judgements are given how they shall be reversed viz. when by Writ of false judgement and when by a Writ of Errour And some say That in all Courts where the party might remove the plea by a Recordare upon a judgement given in such Courts a Writ of false judgement lyeth as in ancient Demeasne Court Baron County Court and Hundred but in other Courts which are of Record the plea shall be removed by a Certiorare and upon judgement given in such Courts which are of Record it shall be reversed by a Writ of Errour c. And if a man recovereth in a Court of Record by erronious judgement and Sueth not Execution some say That a Writ of Errour lyeth and the party shall have a Supersedeas if he will prey the same but if a man hath judgement in a Court Baron and taketh not forth Execution no Writ of false judgement lyeth Quaere the reason thereof and what the Law is in that case And note that sometimes the Sheriffe is Judge as in Reddisseisin Wast and Admeasurement and the Processe shall be served by the Baily as is said And note that the Sheriffe is an Officer â—o the Kings Court to execute the Processe thereof yet sometimes the Coroner is the Officer to the Court where defect is found in the Sheriffe c. so that he cannot by Law indifferently execute the Processe as for divers apparent causes yet if the Sheriffe dyeth the Processe shall not goe to the Coroner but shall stay till another Sheriffe is chosen c. And because the Sheriffe is an Officer appointed by the Law to attend the Kings Courts a man shall not take an Averment against the returne of the Sheriffe directly and the reasâ—n is because where Justice ought to be ministred and executed those who have the Government of the Law ought to repose trust and confidence in some person and if every one might averre against that which the Sheriffe doth then Justice should not be executed but should for ever be delayed c. The meanes and the remedy how a man may come to his due and to that which is wrongfully kept from him and that is by plea and this word is generall and hath divers effects implyed therein and may be divided into divers branches viz. Into pleas of the Crowne as appeales of Death Robbery Rape Felony and divers other things c. and into Actions reall whereby Lands Tenements Rents and other hereditaments are demanded as Writs of right Formed on c. Or Actions
the Coroner hath the Record yet I thinke the Law is otherwise And if one be indicted for Murder and afterwards an appeale is brought against him and after Declaration the Plaintiffe is Non-suit the Appellee shall be arraigned at the Kings Suit upon the Declaration and not upon indictment as it is holden in 4. E. 4. Note that it was said by some Justices in times past That in every case where the Defendant pleadeth a matter whereby he proveth that the action doth not lye for the Plaintiffe as Bastardy or never accoupled in loyall Matrimony c. there he need not to answer to the Felony but if he pleadeth a release in Bar then he ought to plead to the Felony because it is not denyed by him that the Action once lay for the Plaintiffe for when he pleadeth to the Felony then he confesseth that the Plaintiffe is such a person who can maintaine the action yet it was said to the contrary That he shall not plead to the Felony infauorem vite where otherwise if the plea were found against him he should be attainted and the Felony not enquired of and that seemeth to be both reason and Law c. And note that when a man is found guilty for Murder or Felony c. for which he suffereth death he may pray his Booke to save him if he be a Clerke and shall have it if he can read But if that Bigamy at another time convicted be alledged against him and proved then he shall not have his Clergy And it was said That if the Ordinary refuseth a Clerke generally or specially that the Judge may compell him to accept the felon But the old Law was That if the Ordinary had refused him specially as to say Non habet vestem Clericalem non habet consuram yet the Judge might compell him to accept of him But if the Ordinary doe refuse him generally the Judge cannot compell him to accept of him because there may be some cause wherefore the Ordinary by the Law of Holy Church ought not to receive him But that opinion as it was said was altered in the time of William Hussey and his reason was That if this Judge be his Judge where the Ordinary refuseth him specially it is as great reason that he shall be his Judge where he refuseth him generally And see that those who are so attainted of Murder or of other Felonies and for such things as they shall suffer death they shall forfeit their Lands and Tenements and their goods and chattels for ever and the King shall have the Lands for a yeare and a day and then the Lords of whom the Lands are holden shall have them But he who is attainted of Treason the King shall have all his Lands as well those which are holden of other Lords as those which are holden of himselfe c. And if a man hath Land in the right of his Wife and is attainted of Felony the Land shall be forfeited for the terme of his life and it was said That if before the Attainder he and his wife were disseised and afterwards he were attainted and restored to the Kings peace yet they could not have an Assize Tamen quaere Appeale of Rape NOte also that the Appeale of Rape beginneth thus Robertus Wood nuper de A. in Comitaâ—â— Salop Clericus dict R. W. nuper de A. in comitatu predict capellanus Rector Ecclesie patochialis de A. in comitatu predict Or thus Nuper de D. in comitatu predict gent. alias dict R. S. nuper de D. in com predicto yeoman attachâ—atus fuit per corpus saum ad respendendum Alicie G. de rapiu ipsius Alicie paâ—e Dom. regis nunc fracta unde eum appellat Et sunt plegii de prosequend A. D. de C. in comit C. gentleman E. I. de M. in comitat C. yeoman c. Et unde eadem Alicia in predict persona sua instanter appellat predict R. W. de eo quod ubi predict Alicia fuit in pace dei Domini Regis nunc apud A. in predict in comit Salop 8 die mensis Maii ann Regni Dem. Regis 17. circa horam sextam post meridiem ejusdem diei ibidem venit predict S. felonicè ut felo predict domini regis nunc insideand insultu premedita contra pacem ejusdem dom regis coronam dignitatem suas die anno hora loco in comitatu predict in prefatam Aliciam ad tunc ibid. insultum fecit ipsam ad tunc ibid. de virginitate defloruit contra voluâ—tatem suant raduit carnaliter cognovit sic predict R. S. predict Aliciam modo forma predict rapuit quam cito idem felo feloniam raptum predict fecissit fugiit dictaque Alicea ipsum recenter insecuta fuit de villa in villam usque quatuor villas propinqiores ulterius quousque c. Et si idem felo felontam et rapt um predict in forma predict imposit didicere velit predict Alacia hoc parata est verificare et versus eum probare prout curia c. And if a man Sueth an Appeale of the Rape of his Wife although she be not his Wife in right but in possession yet the Appeale doth well lye as is said otherwise it is in an Appeale of murder brought by a woman of the death of her Husband for there it is a good plea that they were never lawfully coupled in Matrimony Appeale of Mayhem SEE also that the Appeale of Mayhem is as followeth viz. I. N. in propria persons sua hic instanter appellat W. de F. de eo quod cum idem quaere tali die anno fuit in pace dei et Dom. Regis nunc c apud talem villam in tali comitatu circa horam sextam c. Ibi venit predict W. vi et armis viz. baculis ut felo domini regis nunc insidâ—and et ex insulta premeditete ad tunc ibid. indiction I. insultum fecit et adâ—tunc et ibid. own quodam baculo precii c. quem predict W. in manibus suis ad tunc et ibid. tenuit predict querentem super brachium dextrum felonicè tunc purcussit per quod vene et necui brachii sui perdict restricti fuerunt ac neci et mortisicat dâ—venerunt Or cum quodam gladio vel cultello precii c. quem defendens in manibus suis ad tunc et ibid. tenuit manum dexteram vel policem manus dextere vel aliud membrum vel auriculam vel aliquam juncturam membri querentis felonicè amputavit vel oculum suum evulsit vel dentes suos anteriores fregit et deposuit Et sic idem defendens ut felo Dom. regis predict quer ad tunc et ibid. felonicè mayheymavit contra pacem dicti Dom. Regis Coronam et dignitatem suus Et si defendans hoc velit dedicere querens hoc paratus est versus