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
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
them selues where thei list so that they hold nothing of the king And fo 168. he saieth that the king shall haue the mariage of all the heires females where thei hold of the king of what age so euer they be as ofteÌ„ as thei shal be to marie so that they can not marrie wtout the kinges licence Thus is the last clause of this chapter expressely proued by Britton that the comon law did stil remain as it was for the mariage of the heires females in the kinges case and not altered or abreged by the said estatute of west primer therfore was the statut in the 39. yere of king H. 6. the last chapter made in this wise Item de auisameÌ„to assensu et aucthoritate pred ordinatuÌ„ est stabilituÌ„ qd mulieres existentes etatis 14. annoruÌ„ tempore mortis antecessoruÌ„ suoruÌ„ absque questione seu difficultate habeant liberacioneÌ„ terraruÌ„ et tenÌ„torum suorum sibi descensorum quia sic lex istius terrae vult quod tunc ipsi haberent How beit this statute prouides not wher thei be within the age of .14 yeres at the deth of their auncester ideo quere For as our late bokes go sins Brittons time the king hath lost his prerogatife vpon what occasion I know not but I woulde gladlie lerne 35. H. 6. 46. for Fortescue saies 35. H. 6. that when the heir female sues her liuerie she takes no oth that she shall not marie as the kinges widow doeth and therfore saieth he it should seme she should make no fyne yf she marie without liceÌ„se Howbeit Littelton saies that if the heir female be of the age of 15. yeres at the deth of her aÌ„cestor and marie her self without license that she shall make a fine for it amouÌ„teth to an alienacioÌ„ For after issue had the husband is become the kinges tenaÌ„t and he solie shall doe homage in his owne name And yet afterwardes in the 15. yere of E. 4. the same Littelton saies that the latter clause of the same statute is void for the doughter which is inward mariynge her self to an other wtout licence shal not make a fine to the king Thus by the argumeÌ„t of the said boke of .35 H. 6. it aperes that thei take the king to be bound by the said statut of w 1. and make him no better then a comon person wherat I haue no litle meruel sins he is not named in the said statute For in the said boke it is agreed by the court that if the kâ—ng after the age of 14. yeares and before 16. do marie the heir female she shal haue liuerie foorthwith vpoÌ„ the mariage H. 35. H. 6. in Fitz ti Gard. P. 71. althoughe she then bee not of the age of xvi yeares because that she was of full age before as it is there said that is to saie as sone as she was 14. And that ii yeres ouer is but only geuen for the mariage which when it is once had and the .14 yeres past the kinge or lord lese theire interest And so it was granted that if she were maried before the age of .14 and after her husbaÌ„d dies before the said age when she comes to the said age of .14 she shal haue liuery And there it was also said that these ii yeres were geuen to the lord to tender her mariage in for the tender before was void because it was wtin the age of 14. yeres But note that if the heire female being vnder the age of 14. yeres falleth in to the kinges handes as ward because of certen lands that her father held of the king in cheefe by reson therof the king hath also the lands inward which are holden of other in socage in this case when she comes to the age of 14. yeres and is vnmaried she shall not haue liuery of these landes holden in socage and yet by reson of them the king hath not the mariage of her But what then she cannot sue her liuerie by parcels and that is the cause that the hole land shal tary in the kings hands til a hole liuerie mai be sued of them all and this aperes in the newe Natura breuium fo 256. And last of all note that this latter clause extends not to women that clayme by purchase but onlie by disceÌ„t And therfore it aperes .15 E. 3. 15. E. 3. iÌ„ Fitz ti Liuere P. 31. that where it was found vpoÌ„ the Diem clausit that the wife was iointly infeffed with her husbaÌ„d she had an ouster le main without findinge any suertie of her mariage And note also that by the comon law yf one will mary the kings nief 33. li. ass in Fitz ti Trauers P. 36. that is to saie his bondwomaÌ„ wtout license he shal paie a fine vnto the king as aperes in 33. E. 3. li. Assisarum The fifth chapiter ET si vna hereditas quae de Rege tenetur in capite desceÌ„dat pluribus participibus tunc omnes illi heredes facient homagium Regi et illa hereditas quae de Rege tenetur participabitur inter heredes illos ita quod quil'z eorum extunc partem suam tenebit de Rege This statute is somwhat declared by a statute longe time made before that is to saye in the 14. yere of king H. the .3 called statutum Hibernie de coheredibus which for the better declaracion of this prerogatiue I haue also here noted HeÌ„ricus dei gratia rex Anglie dominê° Hiberniae et dux Aquitaniae et NormannÌ„ comes Andigauie dilecto et fideli suo Gerardo filio Maurisci Iusticiar ' Hibernie saluteÌ„ Cum milites de partibus Hiberniae nuper ad nos accedentes nobis ostenderunt quod cum hereditas deuoluta sit inter sorores in terra nostra Hibernie Iustic ' nostri in eisdem partibus itinerant ' incerti sunt vtrum post natae sorores tenere debeant de primogenita sorore et ei facere homagiuÌ„ an non Et quia predicti milites petieruÌ„t certiorari qualiter iÌ„ regno nostro ' Anglie iÌ„ casu consimili hactenus vsitatum fuit sic ad instantiam eorundeÌ„ vobis significamus quod in regno nostro Anglie talis est lex et consuetudo in hoc casu quod si quis tenuerit de nobis in capite et habuerit filias heredes ipso patre defuncto aÌ„tecessores nostri habueruÌ„t et nos semper habuimus et cepimus homagium de omnibus huiusmodi filiabus et singule earum tenerent de nobis in capite in hoc casu Et si infra etatem fuerint nos habebimus custodiam earum et maritagium singularum Si autem de alio domino tenuerint et ipsae sorores infra etatem fuerint earum dominus habeat custodiam et maritagium singularum et primogenita tamen faciet homagium domino pro se et omnibus sororibus suis et alie sorores cum ad etatem peruenerint
198. Then at what tyme or howe he shoulde pursue his lycence yf the lycence bee graunted by one king he cannot by vertue thereof alien in the tyme of an other kynge as it appeareth 2. E. 3. Lyke lawe yf the landes be in the kinges handes for Primer seisin or alienacioÌ„ wtout lyceÌ„ce P. 2. E. 3. in Fitz. ti Offië de court P. 29. at whych time the king doth licence his tenaunt to make a feffement he cannot make this feffement till the landes bee out of the kings handes as appeareth 21. H. 7. H. 21. H. 7. 7 Also he that hath lycence may not varie from it in anye point As if the king lycence the Abbot and Couent to make a feffement and thabbot sole will make it thys is void as appeareth 21. H. 7. H. 21. H. 7. 8. And there Frowike saide that if the kinge licence mee to make a feoffement by deede I can not make it without deede Nec econtrario H. 3. E. 3. in Fitz. ti Fines p. 164. And herewyth agreeth the booke of 3. E. 3. Where the lycence was to leuie a fyne of the maner of Dale to fynde twoe chapleynes and he woulde haue leuyed the fyne leauynge out the chapleynes coulde not be suffred And. 30. E. 3. 18. E. 2. in Fitz. ti Fines P. 124 M. 30. E. 3. 22 the lycence was to leuye a fyne of the manour of Dale yeldynge a rent and he woulde haue leuied the fyne of the manour with a Forprise that is to saye exceptinge certeine acres parcell of the manour yeldinge the rent and coulde not bee receiued so to doe for that should not agree with the licence which would the whole manour to be charged with the rent But if there had bene no rent reserued it semes he mought haue alyened any part of the manour by a lyceÌ„ce of alienacion of the whole manour tamen quere For it shoulde seeme to be within the woordes of this statute which woulde you shoulde not dysmember the kings fees and learne if the king licence his tenaunt to make a feffement whether hee may make it vpon condicion or not for they vse when a condicionell feffement is to be made to expresse the condicion within the lycence if the condicion be to make an estate againe to the feffour al this goeth vnder one fyne in one lycence And note that if the Iustices before whome the fyne shal bee leuyed be enformed that the landes are holden of the kinge and that so appeare to them by any record they will not take the fyne tyll they haue seen the licence nor yet engrosse it till they haue receiued a write out of the Chauncerie called Quod permittat finem illum leuari by which they may be fullye certified of the kinges pleasure which writ apereth in the new Na. bre f. 147 and that they haue thus vsed it appeareth 4. E. 2. 33. H. 6. But they neuer vsed so to doe vpon a recouerie in these commen writs of entre in the post 4. E. 2. in Fit ti Fynes p. 1â—5 M. 33. H. 6. â— because the recouerer in such case should paye no fyne for it was no alienacion since the recouerer claimed not in by the tenaunt But nowe by the statute made in the .32 yeare of kinge Henrye the 8. it is ordeined that the recouerer in such case should pay a fyne for alienacion And note that if an alienacion bee made wythout lycence the pardon is moste commonlye made vnto the Feffee and not to the Feoffour And so I suppose it ought to be because the wrong groweth by the entre of the Feffee whiche hath entred the kinges fee wythout hys lycence And therefore the case is 14. H. 6. that where the kyngs tenaunt aliened without lycence 14. H. 6. 27 and tooke estate againe to him to his wyfe in taile the remainder ouer to his right heires and dyeth without issue and the kynge pardoneth the wyfe all maner of alienacions this was thought good to exclude the kyng of his fyne that he shoulde haue hadde for the saide alienacion And it is further to bee noted that the lycence must bee purchased vppon a true suggestion or else it is voide For if the kinges tenaunt in taile pretendinge to be tenaunt in fee simple will pourchase lycence to make a Feoffement this is a voide lycence as it appeareth 40. li. ass 40. lib. Ass in Fitz. ti Gard p. 1. And in all cases where the kings tenaunt in chief will dismember his tenaunt that is to saie alien any parcel hereof without lycence the Kinge may distraine for hys whole rent in the parcell so aliened but if he haue the kinges lycence to make such alienacion the alience shall haue a writ in the Chauncerye called de deonerando pro rata porcione that he shall no further bee charged then after the quantitie of the porcion that he holdeth This writt you maye see in the new Natura breuium fo 2â—4 The eygthe chapiter DE ecclesiis vacantibus quarum aduocaciones spectaÌ„t ad regem alij presentauerint ad easdem Ita qd ' contentio inter dominum regem alios oriatur si Rex per consideracionem curiae presentationem suam recuperauerit licet post lapsum sex mensium a tempore vacationis nullum currit ei tempus dum tamen rex presentauerit infra tempus sex mensium Of this chapiter I fynde nothyng neither in Glanuile Bracton nor Britton ne in anye other olde writer before the makynge hereof sauinge that I fynd this texte bothe in Bracton Britton s. quod nullum tempus occurrit regi whyche Bracton in the beginninge of his firste boke vnder this tytle que res dari possit appliethe vnto liberties apperteyninge vnto the crowne saynge in this wise quod illi qui huiusmodi libertatem sibi vendicat doceat huiusmodi ad se pertinere quia si warrantum non habuerit speciale in hac libertate defendere non poterit quamuis pro se pretendit seisinam longi temporis diuturnitas enim longi temporis in hoc casu non minuit iniuriam sed auget nec in isto casu currit tempus contra regem nec incumbit ei probatio qd ' ad ipsum pertinet cum constare debeat singulis quod huiusmodi de iure gentium pertineant ad coronam sed sunt alie res que pertinent ad coronam que non sunt ita sacre quin transferri possunt sicut sunt fundi terre tenementa huiusmodi per que corona Regis roboratur et in quibus currit tempus coÌ„tra regem sicut contra quamlibet priuatam personam This it appeareth by Bracton that this texte dothe not serue the kynge in all cases for prescription shal holde sometime againste the kynge in suche thinges as a manne maye prescribe in 8. H. 5. ti trauerse P. 47. as it is commen in oure bookes that one shall prescribe for wayfe
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
his daie notwithstandinge the statute of .18 Henry .6 cap .6 whiche ordeines that all letters patentes made before the kings title found by inquisicion retourned into the Chauncerie or other matter of recorde shal bee voide For that statute also extendes but to landes or tenementes no more than the other statutes do so that the graunteâ— of the bodye or of anye other thinge whiche is no lande or tenement is good at this day before any office or inquisition thereof found And it is further to bee noted that this statute of an .18 Henry 6. makes not suche letters patentes good for anye time whiche hee graunted contrarie to the tenure of that statute but they be voide fourthwith And learne and enquire if at this daye within one moneth or .3 monethes after office founde and retourned the master of the kinges wardes and liueries with aduise of one of the counsell of the kinges courte of Wards and liueries made a lease of the wardes landes or of an idiotes landes being in the kinges handes for the time of the kinges interest in the same and after within the tyme appointed by the statute comes a stranger and trauerseth the office whether in this case he shall haue the landes to ferme or not And it seemes that no because this statut that geeues that power to the maister of the kinges Wardes was made long time since the statutes of an .8 or .18 H. 6. that is to say in the .31 yeare of king H .8 whiche statute is generall and no sauing or exception made of thether statutes before And then it is a general rule Quod posteriores leges priori bus contrarias abrogant And some thinkes at this daye for wardes lands or ideots landes there shal bee no lettynge of them to ferme to him that tended the trauers if they were letten before the trauers tended by the maister of the kinges wardes but of other landes it remaines as it was before the making of this statute of a .31 Henry .8 and note that if the kinge seise not for anye Wardshippe but onelye for primer seisin because the heire is of full age if a straunger in this case wil trauerse it is to litle purpose For if the kinge by and by after will make liuerie to the heire the trauerse is become voide as appeareth 1. Henry .7 fo â— for the kinge in that case hathe no cause to reteine the lande but to deliuer the same to him in whoe 's right he seised being able for it and hee that tended the trauers is at no mischiefe for hee may nowe after this liuerie pursue for his remedye against the heire and if it shoulde tarrye in the kings handes for the trauerse sake his highnes shoulde then haue all the profites if the trauers were founde with him for al the time that the saide trauers did depende whereunto hys highnes hath no right but onelye the heire and therefore it seemes there shall bee no trauerse but where the landes is to abyde in the kinges handes for a certeine tyme as for Wardshippe fine for alienacion or suche lyke But if hee that tended the trauerse bee founde heire by office and is to haue liuerie of that lande as well as the other that was first founde heire otherwise it is for the reason made beefore And so of an enterpleder For in that case the kinge is bounde to make the liuerie too him that is tried rightfull heire but not so in the case of a trauerse tended by a straunger whiche claimes not as heire for hee is to haue noe lyuerie but only an ouster le maine by whych ouster le main the kinge deliuereth nothinge but leaues his owne possession as one that hath no right to keepe the possession anye longer And it appeareth sufficientlye that hee hadde no right to keepe it after the tyme the heire that shoulde haue it was of full age Wherefore a straunger in that case cannot trauerse for so twoe that hadde no right by trauersinge together might keepe the thirde that hath right from his possession whiche was neuer the meaninge of the makers of the saide statutes And notwithstanding that this booke 1. H. 7 bee that after the trauerse and before the ferme graunted the liuerie was made yet that makes no difference for whether the ferme were graunted before the lyuerie or after when the trauers is become voide by the liuerie the ferme whiche dependeth vppon the same is also voide as mee seemeth And note also that the saide statute 1. Hen. 8. whiche geeues three monethes for hauinge the landes to ferme makes no mencion of the tresorer of Englande but onelye of the Chaunceller so that for anye thinge that ys to bee letten by force of that statute it must bee done onlye by the Chauncellour and not by the treasorer As it shoulde seeme as well of offices retourned into theschequer as into the Chauncerie and therefore within the moneth after an office retourned into theschequer the tresorer maye let the landes to ferme to him that tendes the trauerse accordinge to the saide statute 8. H. 6. But if it bee to let after the moneth the Chaunceller of Englande must doe it as it should seeme And note also that by a statute made anno 1. H. 8. cap. 11. Any person that sued his liuere in time of king H. 7. vppon anye office that founde hee helde in chiefe where in dede he helde not in chiefe whiche saide offices were found by the procurement of Empson and Dudley in the tyme of the said late kinge maye trauerse thoffice in like maner and forme as he might haue done before the liuerie sued if it be so that he be now seised of the same landes sauing that hee shall not bee restored to the meane issues and profites This statute seemes not to extende to the parties heires that hadde liuerie but onelye to the partie him selfe Quere hoc And note that in the court where thoffice is first retourned into there I shall tende my trauers as if it bee retourned into the Chauncerie then in the Chauncerye and if in the Eschequer then in theschequer as in deede all offices virtute officij are retournable in theschequer onelye and such as bee virtute breuis vel commissionis bee retournable in the Chauncerie And now by the Statute of .33 H. 8. cap. 22. No eschetour maye sitte virtute officij onely to fynde anye office of landes holden of the kinge of the value of v. li. or aboue vppon paine to forfait v. li. Monstrance de droit THe Statute of an .36 E .3 that geeueth a trauerse saithe in this wise Et sil eit nul home qui met challenge ou claime aus terres issint seisies que leschetour maunde lenquest en la chauncellarie deins le mois apres les terres issint seisies et que briefe luy soit liuere de certifier la cause de sa seisin en la Chancellarie et illeoques soit oye sauns delaye de
not founde by office as wel as hee shoulde in the like case if he were to take a trauerse But otherwise it is where the kinge is entitled by an other recorde beside the office whiche is not trauersable there hee shall not bee receiued vnlesse the parties title appeare by mater of recorde And note that if the kynge haue coÌ„mytted the lande ouer he that sueth his Monstrans de droit muste sue a Scire facias against the committe euen as hee shoulde vppon a trauerse and as for takynge the landes to ferme or for suynge the sayde Monstrans de droit durynge the tyme the heire in whose righte the kyng hathe seised is wythin age Like lawe is to be vsed as is beefore declared vppon the tytle of Trauerse Peticion PEticion is al the remedie the subiect hath wheÌ„ the kyng seiseth his land or taketh away his goods from him hauing no title by order of his lawes so to do in whyche case the subiect for his remedy is driuen to sue vnto his soueraine lorde by way of peticion onely for other remedye hathe hee not as it hath ben sufficiently declared before vpoÌ„ the 15. cha of the kings prerogatiue And therefore is his peticion called a peticioÌ„ of right because of the righte the subiect hath against the king by the order of his laws to the thiÌ„g he sueth for And this peticion may be sued as wel in the parlemÌ„t as out of the parlemeÌ„t if it be sued in the parlemeÌ„t then it may be enacted passe as an act of parlemÌ„t or els to be or dred in like maner as a peticioÌ„ that is sued out of the parlement which is in this maner first after the peticioÌ„ is endorsed it shal be deliuered to the ChauÌ„celer of EnglaÌ„d theÌ„ shal ther be a coÌ„missioÌ„ awarded out of the chauÌ„cerie to find the righte or title of him that sueth the peticioÌ„ which being found by enquest then he may enterplede withe the kynge and not before Trauers 51. as appeareth in 18. E. 3. fo 15. 4. E. 4. f. â— 11. H. 4. f. 5â— et 10. H. 4. And if vppon the sayde coÌ„mission no title be found for the partie but onely for the kinge yet the peticion shall not abate but the party shall haue a newe commission in that case for the peticion is butte as voide vntill the parties title be founde by office Peticion 11. and is not to be sayde depeÌ„dinge vntill that time as appearethe in .3 H. 7. Quere for he sued a newe peticion in that case And note that when the peticion is endorsed the partie muste followe and pursue the same according to the endorsement or otherwise his suite is void because the endorsemente is his warrant ther in PeticioÌ„ 1. 3. 18. as appearethe in 18. 22. et 46. E. 3. and therefore sometime billes of peticion be endorsed and sent into the kyngs benche or common place and not into the Chauncerie and that groweth vppon a special conclusion in his peticion and a speciall endorsement vpon the same for the generall conclusioÌ„ is que le roy luy face droit et reasoÌ„ which is as much as if he had prayed restitucion of that that he suethe for And there vpon such a generall conclusion the endorsemente is Soit droit fait as ê‘ties which euer is deliuered vnto the ChaÌ„celler as is declared But if the conclusion in the peticioÌ„ bee speciall and the endorsement special then they shal procede accordinge to the sayde speciall endorsement As for an exaÌ„ple the kinge recouereth in a Quare impedit by defaute against one that was neuer summoned in this case the partie that lost can not haue a writ of disceit vntill such time as he haue sued vnto the kinge by peticion for the sayde wrytt and if in his peticion he conclude and praye that the kynge do him right generally nowe the iustices before whom the recouerie was had can not examine the deceit without an originall writ directed vnto them for that purpose and yet before he obteined that writ his right shal be enquired of by commission but if he conclude specially in his peticion that it maye please his highenesse to commaunde the iustices to procede to the examinacioÌ„ which peticion is endorsed accordinglye theÌ„ may they do it wtout any such writ or coÌ„missioÌ„ to be sued as appeareth in .10 H. 4. Trauers 51. So euer the folowynge and pursuynge of the thinge muste bee accordinge to thendorsement for howsoeuer the conclusion in the petition be the endorsement may be alwayes as it shall please the king as me semeth and accordinge to that the party must pursue it And note that in euerye peticion where the kynge hathe graunted the lande ouer to an other a Scire facias muste bee awarded against the patentee like as it shall be wheare a trauerse or MoÌ„strans de droit is tended whiche patentee yf he haue not the whole fee simple but that ther is a reuersion in the kynge or that the kynge is bounde to warrauntie when he appeareth vppon the Scire facias he maye praye a write of Searche to bee awarded into the tresorie to search what theye can finde for the kynges title as appeareth in .9 E. 4. f. 5â— where Sottle sayethe that euerye peticion muste make mention of al the kyinges titles for if it be found by the write of searche that anye be omitted the peticion shall abate the reason of it is because that yf on this sute of peticion the kinge take an issue with the partie which is fouÌ„d against him his highnesse then shal be concluded for euer more to claime by any of the points conteyned in the sayd peticion And here with agreeth the boke T. 16 E. 4. 16. E. 4. f. 6. But quere if search shall bee graunted vppon a trauerse or Monstrans de droit because the statute of An 14. E. 3. cap. 13. that concerneth search doth speak only but of a peticioÌ„ but to that it maye bee sayde that at the time of making of the statut ther was noe trauerse geeuen And Skrene sayeth .7 Peticion .6 Henry the fifth that search shal not bee granted but where one suethe by peticion And note allso that in euerye peticion whether it bee sued in the parliament or elles where or whether the landes remaine in the kinges handes or not in the kins haÌ„ds but be granted ouer yet writs of search shall bee awarded to search the kinks title ere the party shal eÌ„terplede with the king Also 〈◊〉 appereth in the boke of .16 E. 4. beefore remeÌ„bred the inâ—â— a peticioÌ„ the kinges pateÌ„tee had ayd of the king there appereth also that if the king be not entitled by any mater of record but without any title do entre into my land wherebye I sue vnto his highnes by peticion that in thys case no search shal be grauÌ„ted because no title caÌ„ be entended for the kinge in suche case
Thus haue I opened declared the maner of suing a peticion but to declare specially where yt lyeth where not it were a long mater to entreate of But generally by generall rules a man may brieflye declare it that is to say in all cases where the partie hath a right against the king yet no trauerse or Monstrans de droit will serue ther is hee driuen to his peticioÌ„ As for an exaÌ„ple wher the king is entitled by double mater of recorde Like law is where he is entitled by a record not trauersable as take the case the kynge recouered by assent and wythout title a straunger that hathe good title shall not salsifie this recouerie by a trauerse or MoÌ„strans de droit but is driuen to his peticion so it is where the kinge recouerethe by erronyous proces the partie shall not haue a write of errour vntill he haue sued by peticion for it So likewise it is if landes are holden of mee bye knightes seruice a straunger brynges a Precipe in capite of those lands against my tenant recouereth by defaut although by this recouerie I am not put out of possession of mye seignorie but that the tenaunt holdethe of me as hee did before and also of the kinge by conclusion yet in this case if the recouerer dye his heire wythin age and the kynge seisethe the ward I am driuen nowe to my peticion for the ward 17. E. 3. f. 36. as appearethe in .17 E. 3. for thys ys an other thinge than euer I was seised of Allso it is a generall rule that where a straunger that hathe title can not entre vpon a coÌ„mon parson but is driuen to his action there he caÌ„ haue no remedy against the king but only a peticioÌ„ as take the case to be It is found by office the kings tenant in chiefe died seised his heire within age where in dede the sayd tenant had nothing but by disseisin done to me I suffred him to die seised wtout any claim made in this case I get no remedy by Monstraunce de droit or trauerse but am driuen to mye peticion And so in all cases like wheare mine entre should be tolled if the lands were in the hands of a commoÌ„ person as appeareth in 8. 9. H. 4. M. 7 H. 4. fo 27. 36. et 41. T. 9. H. 4. f. 7 et 11. Also where as the kinge doth entre vpon me hauing no title by mater of recorde or otherwise and put me out and deteines the possession froÌ„ me that I can not haue it againe by entrie without suite I haue then no remedie but onely by peticion But if I bee suffred to entre mine entrie is laweful and no intrusion or if the king graunt ouer the lands to a straunger then is my peticion determined and I may nowe entre or haue mye assise by order of the common law against the said strauÌ„ger being the kings patentee as appeareth in 4. E. 4. f. 23. Assise P. 156 M 24. E. 3. f. 34. And a great difference is betwene this case the case wher the king is entitled by double mater of record or suche like for in these cases notwithstanding the graunt made ouer by his highnes of the lands to an other yet am I driuen still to my peticion to the king and haue no other remedye but it is not so in this case and the reason of this diuersitie is because that when his highnes seiseth by his absolute power contrarie to the order of his lawes although I haue no remedy against him for it but by peticioÌ„ for the dignities sake of his person yet when that cause is remoued a comon person hath the possession then is mine assise reuiued for now the patentee entreth by his owne wronge and intrusion and not by anye title that the kynge geeueth hym for the king had neuer title ne possession to in that case and therfore not lyke the other cases beefore where the kynge hath the landes by the order of his lawes that is to saye by doble mater of record or such other like Trauers 134 And this apperethe in 4. E. 4. f. 21. et 25. et in 24. E. 3. f. 34. et 33. li. ass Like lawe is if I haue a rent charge oute of certaine lande and the tenant of the land enfeffed the kinge by dede enrolled nowe during the kinges possession I must sue by peticion but if his highnes enfeffe a stranger I may distreine for my rent vpon the stranger and so is it in all the cases before where a man may haue his trauerse or monstrance de droit if the laÌ„ds be once out of the kings hands the party theÌ„ may haue his remedie that the comoÌ„ law geueth him for in all these cases the peticion did lye onely for the dignitie of his person and not for the right that he had to the possession of the thing But if the kinge purchaceth lands holden of mee learne what remedie I may haue for my seignory during the kinges possession for wilby sayeth in 20. E. 3. that I haue no remedie in the case and if his highnes make a feffmÌ„t of these lands to hold of him self Assise 124. yet can I not distreine for my seignorie like as I might do in the case of the rent charge before bicause there can not bee ii seignories of one self land but am driueÌ„ to my petitioÌ„ in this case PeticioÌ„ 1â— for the king vpon this feffmÌ„t by order of his lawes shoulde haue reuiued the seignorie in mee that is to say to haue aâ—de the feffee to hold of me of whome it was hold before as appereth in 46. M. E. 3. 7. E. 3. f. 59 and so hathe it ben vsed alwayes where his highnes hathe lands by forfaiture of treson holden of a coÌ„mon person if he make a feffement of those lands it must be Tenend of them that they were holden of before as I haue opened vpon the xii chapter of the kinges prerogatiue And so it is where the time is coÌ„cluded to his highnes for a mortmain But that is geuen by the statut de religiosis Also if the kinge disseise my tenaÌ„t during this possessioÌ„ I haue no remedie for my seignorie but only by peticyon if the kinge eÌ„feff mye tenaÌ„t to hold of his highnes yet haue I no remedy for my seignorie but only by peticion But if one holde certeine landes of mee which are falsly found by office to be holden of the kinge in Capite and the king seiseth them enfeoffeth my tenaunt thereof to holde of his highnes in this case I may nowe distreine for my seignorie am not oute of possession Auowrye 113. Assise 122. 124. these cases appere .20 32. et 46. E. 3. fo 1â— the reason of the diuersitie is this because that in the laste case my seignorie was neuer suspended but euer more had his being and that
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
possession as any other By a statute made the .33 yere of the late kinge of famous memorie H. 8. the 20. chapter it is among other things prouided that if any person or persons shal be attainted of hye treson by the course of the comon lawes or statutes of this realme that in euery such case euery suche attainder by the cōmon law shal be of as good strength value force and effect as if it had ben done by authorite of parliament that the kinges maiestye his heires and successors shall haue as much benefit auātage by such attainder as well of vses rights entres cōdicions as possessions reuercions remainders and all other things as if it had ben done and declared by autoritie of parliamēt and shal be demed and a iudged in actuall and reall possessiō of the lands tenemēts hereditamēts vses goods cattals all other things of the offēdors so attaīted which his highnes ought lawfulli to haue and which they so being attainted ought or might lawfulli lose and forfait if the attainder had ben done by authorite of parliamēt without any office or inquisicion to be founde of the same any law statut or vse of the realme to the cōtrarye therof mani wise notwtstādīg This statut maks it clere without questiō that in cases of hye treson the lāds of him that is attainted are in the kinge biand by without any office But for other attainder it remaines as it was at the comō Law and therfore lerne if one which holdeth of the king be attainted of petit treson or felonie whether in this case by thatainder his lands be in the king without office and me semeth by attaīder and death together they should be in the kinge in law howbeit not in dede vntill suche time his highnes seise themby his officer or that an office bee therof foūd for by thattainder the lands are forfaited to the kinge by mater of record and then when the partie dyeth either the frehold must be in suspence or els aiudged in the king in lawe for he that was seised hath corrupted his blood and is dead without heir and therfore his highnes is beecome owner thereof in lawe and a possession in lawe vested in him of the same landes which his highnes at his will and pleasure may make a possessiō in dede as sōe as he wil take vpon him knowledge of the sayd landes and sease them by his officer And therfore the booke is agred 20. E. 4. 20. E. 4. so 10 that if he that is attaynted be seised of auowsōs appendaūt as sōe as the church becometh voide the king may presēt wtout any office which proues that the kinge by thattainder was patron before any office found or els how could his highnes present and I see no differēce betwene lāds auousōs in this case for auouson is not so transitorie toward the kinge but that he mai take the presentment therof at all times whē he will quia nullum tēpus ei occurrit Howbeit lerne what the law will in this case for many mē are of the contrarie opinion And see the boke .4 E. 4. cōcernīg this mater And so note what is sayd of a possession in law 4. E. 4. 21. for as I take it there may be a possession in law in the kinge as well as a possessiō in dede which possession in law is euer without office or any other mater of record as whē the possessiō is cast vpō his highnes by a discēt reuerter remaīder or escheit or in title of his seignorie or prerogatiue as for wardship primer seisī or for the custodie of the tēporalties of a bishop during the time that the see is vacant in all these cases without any office or other mater of record here is a possession in law vested in the kings highnes that is to say for that that doth descēd reuert remain or eschet the freholde is cast vpon him in lawe as it should be vpon a comon person in the like case or els the frehold should be in suspence which may not be of the rest the possession in law of a cattell is in his highnes in right of his seignorie which his highnes at his will and pleasure may make a possession in dede by entre or seasure but not to make it a possession in dede by his graunt because there is a statute made in the 18. yeare of H. 6. ca. 6. to the let therof which prouideth that all letters patents made of lāds tenements before office foūd and returned or within one month after but onely too him that tendethe his trauerse shal bee voyde This statute extdes onely to landes and tenementes therfore of the bodie of his warde his highnes may make a graunt notwithstandinge this statute as me semeth for that is neither lād ne tenemēt also notwithstādinge that this statute doth restraine the graunting of the lāds tenemēts yet the seisin therof remaines and is in the kinge as it was by order of the comon lawe which is as I sayd before in his highnes in lawe although not in dede vntil such time as he hath made a seasyn or an entree by his eschetour or a graunt therof which wayethe both to a seasure and a graunt in such cases where the graunte maye bee goode and not restrained by statute or vntill such time an office therof be found For an office that entitleth the kinge to the possession is sufficient by it selfe without any seiser or entre of the eschetour to make a possession in deede in the kinge if it be so that the possession were vacant when the office was founde But if the possession were not vacāt but an other thā he in whose right the kinge seiseth was tenant therof at the time of the findinge of the office then must the kinge entre or sese by his officer before the possession in deede shal bee iudged in him yea and if his highnes seise not by the space of a yeare and a daye after the findinge of the office then maye be not seise without a Scire facias to bee pursued agaīst him that is tenāt therof 9. H. 7. f. 2. 7 49. E. 3. f. 22. 20. E. 4. f. 10. Estopel 255. Trauers 50. 32. Ass P. 32. 29. Ass P. 30. 21. H. 7 f. 7. P. 21. E. 4 f. 1 Gard. P. 105 And of those maters you may see bokes 9 H. 7. 49. E. 3. 20. et 21. E. 4. 4. E. 2. 10. H. 4. 21. H. 7. 29. et 32. li. ass But heruppon is there a distinction to be made whether that that the king is ētitled vnto by office be a thinge manuell and wherof profit maye bee taken forthwith after the findinge of the office or not For if it bee such a thinge as is not manuel and wherof there is no profite too bee taken forthwith vntill such time it falleth in that case althoughe the king be in possession of the right of
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